Kansas courts now grappling with gay marriage issue

? Gay and lesbian couples filed Thursday into county courthouses in Kansas to apply for marriage licenses, and in many cases courts waived the standard three-day waiting period so the eager couples could get married immediately.

That was the result of a U.S. Supreme Court order Wednesday, lifting a stay on a lower court’s temporary injunction, directing court clerks in Douglas and Sedgwick counties to start processing licenses for same-sex couples.

Some other counties, including Shawnee and Riley counties, began honoring the federal court order as well. But others, notably Johnson County, which is still under a Kansas Supreme Court order not to issue licenses to gay couples, are still waiting for a court to specifically direct them to do otherwise.

But even in the courthouses that were accepting applications Thursday, there was not the throng of gay and lesbian couples lining up that many had expected, possibly because they have long had the option of getting married in Iowa, California or any of several other states that already allow gay marriage.

For them, as well as for some of the couples lining up to get married in Kansas, the issue was not just about being allowed to get married here, but also of getting recognition of their relationship and the legal benefits that flow from it, such as the right to adopt step-children or file joint tax returns.

That was the case for Quinta Avance and Tessy Best, two Topeka women who were married Thursday at the Douglas County Courthouse. Avance works for the state of Kansas and planned to go to her human resources department Friday morning to place Best on her government insurance.

“Our circle views us as a family, but everyone else doesn’t,” Quinta said.

“The recognition question is still technically out there,” said Lawrence attorney David Brown, who represents two couples in a separate lawsuit challenging the state’s refusal to let them file joint tax returns. Both couples were married in California.

“I’ve talked to a bunch of people who say if they have to issue licenses, they have to recognize marriages from out of state,” Brown said. “But the idea that the only counties that can issue licenses are Douglas and Sedgwick leads me to think they are not going to agree to anything along the way.”

Brown was referring to Kansas Attorney General Derek Schmidt, who is continuing to defend the state’s ban on gay marriage in both state and federal courts, as well as Gov. Sam Brownback, who has said the state needs to defend those laws because they were approved by 70 percent of the voters in April 2005.

Brown’s case was scheduled for a Friday hearing in Shawnee County District Court. But Judge Frank Theis postponed that hearing until sometime after the first of the year, by which time the larger questions involving the state’s gay marriage ban may already be resolved.

Meanwhile, the Kansas Supreme Court plans to begin deliberating Monday morning on the question of whether other counties can begin issuing marriage licenses to same-sex couples.

That case involves Johnson County Chief Judge Kevin Moriarty, who on Oct. 10 issued an administrative order directing the court clerk’s staff there to begin granting marriage licenses to same-sex couples.

Moriarty’s order came just a few days after the U.S. Supreme Court refused to hear appeals from several appellate court rulings that struck down state bans on same-sex marriage. Two of those, involving Utah and Oklahoma, came from the 10th U.S. Circuit Court of Appeals, which also has jurisdiction over Kansas.

But Schmidt’s office immediately intervened, petitioning the Kansas Supreme Court to block the order. Schmidt argued Moriarty had no legal authority to issue such an order because despite the 10th Circuit and U.S. Supreme Court rulings, no court had specifically struck down the Kansas ban on gay marriage.

The state high court granted Schmidt’s request, known as a writ of mandamus, and originally scheduled a hearing for oral arguments on Nov. 6. But it later postponed that hearing in light of action occurring at the same time in federal courts.

The announcement that the court plans to begin deliberating next week indicates the justices are dispensing with oral arguments and will decide the case based on the written briefs, as well as the recent federal court decisions.

Brown, who filed an amicus brief in that case, said he hopes the Kansas court will also resolve the issue of recognizing out-of-state marriages of same-sex couples.

“Arguably, they could address the issues we raised in our brief,” he said. “The point of the amicus brief was simply to inform the court that the recognition issue was out there.”