ACLU to challenge Kansas gay marriage ban; couples turned away

? A decision by the U.S. Supreme Court on Monday turning away appeals from five states seeking to prohibit same-sex marriages is expected to clear the way for the unions to happen in Kansas — but it may take a bit more legal wrangling before the conservative state will do so.

Without commenting, the nation’s highest court brought to an end delays in gay marriage in five states — Indiana, Oklahoma, Utah, Virginia and Wisconsin. That effectively makes gay marriage now legal in 30 states. Couples in six other states — Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming — should be able to get married soon, as those states would be bound by the appellate rulings that earlier had been put on hold.

“Marriage equality is coming to Kansas,” said Thomas Witt, executive director of the gay rights group Equality Kansas. “It may not be this morning, but it may be another morning very soon.”

Some same-sex couples who applied for marriage licenses on Monday, however, were turned away. The Kansas Attorney General’s Office did not return phone and email messages seeking comment about the state’s next move to reconcile the ruling by the 10th U.S. Court of Appeals and Kansas’ ban on gay marriage.

And Kansas Gov. Sam Brownback issued a statement saying he swore an oath to support the state constitution.

“An overwhelming majority of Kansas voters amended the Constitution to include a definition of marriage as one man and one woman. Activist judges should not overrule the people of Kansas,” Brownback said.

The Kansas Supreme Court has given district court clerks no guidance on what they should do with requests from gay couples for marriage licenses. The court “does not decide questions of law until they are brought before the court,” spokeswoman Lisa Taylor said.

Since the appeals from Oklahoma and Utah originated within the 10th Circuit, that court’s decision overturning those bans on gay marriage will affect all states in that circuit, including Kansas, said Doug Bonney, chief counsel and legal director of the American Civil Liberties Union of Kansas and Western Missouri. The court had put its ruling on hold, and the ACLU had decided to wait to see what the Supreme Court would do.

With the Supreme Court refusing to hear the appeals, the stays in those cases were lifted. The ACLU now plans to seek plaintiffs for a lawsuit in federal court, and will likely ask for a preliminary injunction blocking the Kansas law, Bonney said.

Kerry Wilks and Donna DiTrani went to the Sedgwick County Courthouse to get a marriage license Monday. The couple, who had a civil union two years ago, were refused the paperwork to get a license. Wilks said she did not want to go elsewhere to get married.

“It made me angry to think I would have to go to another state to practice a basic civil liberty,” Wilks said. “It made me angry to think that I would come back and the marriage would not be recognized.”

Aimee McCarter and Jennifer Kozushko said outside the courthouse they were disappointed after not being allowed to get a license. The two are trying to adopt three children and said a legally recognized marriage would be helpful.

Couples trying to get licenses in Sedgwick County were repeatedly told that at this time the county wasn’t handing out marriage license applications to same-sex couples, and that they could consult a private attorney if they wished. One couple was told that direction came from the Sedgwick County Court’s chief judge.

Some same-sex couples who applied for marriage licenses on Monday, however, were turned away. The Kansas Attorney General’s Office did not return phone and email messages seeking comment about the state’s next move to reconcile the ruling by the 10th U.S. Court of Appeals and Kansas’ ban on gay marriage.

And Kansas Gov. Sam Brownback issued a statement saying he swore an oath to support the state constitution.

“An overwhelming majority of Kansas voters amended the Constitution to include a definition of marriage as one man and one woman. Activist judges should not overrule the people of Kansas,” Brownback said.

The Kansas Supreme Court has given district court clerks no guidance on what they should do with requests from gay couples for marriage licenses. The court “does not decide questions of law until they are brought before the court,” spokeswoman Lisa Taylor said.

Since the appeals from Oklahoma and Utah originated within the 10th Circuit, that court’s decision overturning those bans on gay marriage will affect all states in that circuit, including Kansas, said Doug Bonney, chief counsel and legal director of the American Civil Liberties Union of Kansas and Western Missouri. The court had put its ruling on hold, and the ACLU had decided to wait to see what the Supreme Court would do.

With the Supreme Court refusing to hear the appeals, the stays in those cases were lifted. The ACLU now plans to seek plaintiffs for a lawsuit in federal court, and will likely ask for a preliminary injunction blocking the Kansas law, Bonney said.

Kerry Wilks and Donna DiTrani went to the Sedgwick County Courthouse to get a marriage license Monday. The couple, who had a civil union two years ago, were refused the paperwork to get a license. Wilks said she did not want to go elsewhere to get married.

“It made me angry to think I would have to go to another state to practice a basic civil liberty,” Wilks said. “It made me angry to think that I would come back and the marriage would not be recognized.”

Aimee McCarter and Jennifer Kozushko said outside the courthouse they were disappointed after not being allowed to get a license. The two are trying to adopt three children and said a legally recognized marriage would be helpful.

Couples trying to get licenses in Sedgwick County were repeatedly told that at this time the county wasn’t handing out marriage license applications to same-sex couples, and that they could consult a private attorney if they wished. One couple was told that direction came from the Sedgwick County Court’s chief judge.

Kansas Attorney General Derek Schmidt issued a statement Monday evening.

“Today’s unexpected and disappointing decision to avoid the issue ensures that an already uncertain legal situation for Kansas and many other states will become even more so. It is likely the Supreme Court eventually will have to decide this question, but until then this delay is sure to generate more litigation and more uncertainty both for defenders of traditional marriage and for same-sex couples. To date, no Court has squarely decided whether the Kansas Constitution’s prohibition on same-sex marriage — adopted by voters less than a decade ago — is invalid.

“My office is consulting with the Governor’s office and with other states affected, directly or indirectly, by today’s decision and will deal with pending or future litigation directly affecting the Kansas constitutional provision as it may come. We are also closely watching ongoing litigation in the Fifth, Sixth, Ninth, and Eleventh federal circuit courts of appeal that could again present the Supreme Court a request to decide this question with finality during its current term.”