Topeka The U.S. Supreme Court on Wednesday authorized same-sex marriages to go forward in Kansas, lifting the stay one justice had granted on an order from a district court in Kansas City, Kan.
In a one-page statement, the court said: “The application for stay presented to Justice (Sonia) Sotomayor and by her referred to the Court is denied. The order heretofore entered by Justice Sotomayor is vacated.”
“We won! Let marriages begin,” Doug Bonney, legal director for the American Civil Liberties Union of Kansas, said in an email heralding the court’s decision.
Bonney was the lead attorney for the plaintiffs who filed the case Oct. 10 challenging the state’s refusal to grant marriage licenses to same-sex couples. The plaintiffs were lesbian couples in Douglas and Sedgwick counties who had been denied licenses because of a 2005 Kansas constitutional amendment defining marriage as a union between one man and one woman.
The order, however, does not necessarily end the legal battle in Kansas. It merely lifts the stay that had been placed on a temporary injunction issued last week by U.S. District Judge Daniel Crabtree, ordering court clerks in Douglas and Sedgwick counties to begin processing same-sex marriage applications even though the laws banning such marriages are technically still in effect.
Crabtree based that order on the fact that the 10th U.S. Circuit Court of Appeals had already struck down state bans on gay marriage in Utah and Oklahoma, and the U.S. Supreme Court had already declined to hear appeals of those decisions. As a result, he said, the state was unlikely to prevail in defending the ban, and couples being denied the right to marry would be harmed if they continued to be denied while the case was being fought out in court.
Crabtree’s order also was directed only at court clerks in Douglas and Sedgwick counties, where the two plaintiff couples in the case reside.
Update, 9 a.m. Thursday
But Kansas University constitutional law professor Rick Levy said he thinks the Supreme Court’s order can be applied statewide.
“I think that if Judge Crabtree’s order means Kansas constitutional and statutory provisions violate the equal protection clause, those provisions are void,” Levy said. “And if they’re void because they’re unconstitutional, then they’re void not only for the judges that were directly subject to the order but also for every other judge in the state.”
Tom Witt, executive director of Equality Kansas, the gay rights and civil rights advocacy group that worked with the ACLU to organize the challenge, said the Supreme Court’s order still made for an “ecstatically happy day.”
He also said he expects same-sex marriages to begin immediately in Kansas, even though the state requires a three-day waiting period after issuing a marriage license.
“Some people already have their applications in. Now all they need to do is go pick up their licenses, if they’ll hand them out,” Witt said. “Some courts may try to drag this out, but they need to get out of the way and let people have their constitutional rights.”
Couples making plans
Thomas Tuozzo, a KU philosophy professor, said Wednesday he will be getting married very soon.
Tuozzo and his partner, Rudd Hedlund, have been together 20 years. Last month, during the see-saw of court rulings and appeals, they went to the Douglas County Courthouse to apply for a marriage license.
With a legal marriage, Tuozzo said, he and his spouse will be able to file joint taxes and share employee benefits like any other married couple.
“That’s good news,” he said of the Supreme Court ruling. “It’s a good feeling, and it’s only fair. This has been an obstacle.”
Tuozzo said he plans to contact Douglas County court officials Thursday to determine whether he needs to reapply or if the license he sought is active.
But Kail Marie and her partner, Michelle Brown, of Lecompton, two of the plaintiffs in the federal lawsuit who have been together 21 years, said they won’t be getting married anytime soon, at least until the legal challenges run out.
That’s because if they did, the state could ask the U.S. 10th Circuit to dismiss their case, Marie said.
“Michelle and I can’t run out and get married,” Marie said. “We are going with the flow. We expected this.”
But Marie said she was pleased once again with a court ruling.
“Oh God, yes,” Marie said. “But it’s not over while the statute is still on the books.”
The lawsuit in one month
The case that prompted Wednesday’s decision swept rapidly through all three levels of the federal courts in barely a month’s time.
The case was filed Oct. 10, shortly after the U.S. Supreme Court refused to hear appeals from several appellate courts that had struck down state bans on gay marriage. Two of those were from Utah and Oklahoma, which along with Kansas, are part of the 10th Circuit. That made those cases binding on all federal courts within the circuit.
As part of the suit, the plaintiffs also asked for a temporary injunction to bar court clerks in Douglas and Sedgwick counties from denying marriage licenses to same-sex couples even while the case was being heard.
Also that week, the Kansas Supreme Court blocked an administrative order from the chief judge in Johnson County, who had directed his staff to begin processing same-sex marriage applications. At least one couple there received a license and was legally married before the state high court issued its stay.
On Nov. 4, U.S. District Judge Daniel Crabtree granted an injunction, directing court clerks in those counties to begin issuing marriage licenses, effective at 5 p.m. Tuesday, Nov. 11.
Kansas Attorney General Derek Schmidt appealed that order. After the 10th Circuit refused to stay the order, he filed an emergency request Monday with Justice Sotomayor, who handles such requests from states within the 10th Circuit.
Schmidt had argued that Crabtree’s order should be stayed because a case involving the same issue was still pending before the Kansas Supreme Court. On the same day he made that argument to Sotomayor, however, he also filed a brief with the Kansas high court, arguing that it should not act on the matter because there was still pending litigation in federal courts.
In particular, Schmidt has asked that the entire 10th Circuit Court of Appeals review a decision by a three-judge panel last week that refused to stay Judge Crabtree’s order.
The U.S. Supreme Court order Wednesday lifting the stay indicated that two of the nine justices, Antonin Scalia and Clarence Thomas, would have voted to grant the stay, effectively making it a 7-2 decision in favor of gay marriage in Kansas.
KU’s Rick Levy said Wednesday’s decision does not necessarily end the legal battle in Kansas, or in the nation. But he said the ruling will make it difficult, if not impossible, to re-impose a ban on gay marriage again in Kansas. He also said it will be difficult for the U.S. Supreme Court to uphold such bans in any other state.
“A lot of people think if the court’s majority was going to rule that same-sex marriage was illegal, they would have done so sooner,” he said. “A lot of people who look at the denial of (requests to review) in those other cases saw it as significant, not because the Supreme Court tipped its hand, but because if the court was going to stop same-sex marriages going forward, that was the time to do it, before a lot of couples had gotten married.”
Witt agreed, although he said he still expects there to be “pockets of resistance” in Kansas.