Archive for Wednesday, October 8, 2014

Johnson County green-lights gay marriage in Kansas; Douglas County to continue denying applicants

Angela Schaefer, left, and partner, Jennifer Schaefer hold an application for a marriage license at the clerk's office at the Johnson County Courthouse in Olathe, Kan., Wednesday, Oct. 8, 2014. They are due to obtain their license Tuesday, after the weekend and the Columbus Day holiday Monday.

Angela Schaefer, left, and partner, Jennifer Schaefer hold an application for a marriage license at the clerk's office at the Johnson County Courthouse in Olathe, Kan., Wednesday, Oct. 8, 2014. They are due to obtain their license Tuesday, after the weekend and the Columbus Day holiday Monday.

October 8, 2014, 3:34 p.m. Updated October 8, 2014, 5:50 p.m.

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The chief judge of the Johnson County District Court issued an order Wednesday clearing the way for same-sex couples to get married in that county. But a constitutional law professor at Kansas University said it's still not clear that such marriages would be valid under Kansas law.

Meanwhile, the district court in Douglas County issued an opposite order Wednesday, saying the Kansas Constitution does not allow same-sex marriages and that so far no federal court has struck down the Kansas law.

"I'm disappointed," said Thomas Tuozzo, a Lawrence resident who applied for a license to marry his partner of 20 years, Rodd Hedlund.

Tuozzo, a philosophy professor at Kansas University, said instead of going to Johnson County to get married, he and Hedlund will probably join the litigation being organized by the Kansas Equality Coalition to challenge the Kansas Constitution's ban on same-sex marriage.

The contrasting court orders from neighboring counties came just two days after the U.S. Supreme Court refused to hear an appeal from a lower court ruling that struck down Utah's constitutional ban on same-sex marriages.

That decision came from the 10th U.S. Circuit Court of Appeals, which also has jurisdiction over federal appeals in Kansas. And the language in the Utah Constitution limiting marriage to opposite-sex couples is similar to the language in the Kansas ban.

In Olathe, Judge Kevin Moriarty cited the 10th Circuit case in his order directing the clerk of the court to issue marriage licenses to all individuals, "including same sex-individuals, provided they are otherwise qualified to marry."

"That decision, if applied to a case and controversy out of Kansas, would no doubt hold that under the federal Due Process and Equal Protection Clauses of the United States Constitution 'those who wish to marry a person of the same sex are entitled to exercise the same fundamental right as is recognized for persons who wish to marry a person of the opposite sex,'" Moriarty wrote, quoting the 10th Circuit's opinion in the Utah case.

Angela and Jennifer Schaefer, of Gardner, applied for a license Wednesday shortly after the Johnson County order was given. The two have a 9-month-old son, and Schaefer said she believes getting married will ensure that she has full parental rights.

But in Lawrence, Chief Judge Robert Fairchild reached the opposite conclusion in his order, which was prompted by Tuozzo's and Hedland's application for a marriage license.

"The Court’s role in administrative matters is to apply and follow the existing laws of the State of Kansas," Fairchild wrote. And while he acknowledged the 10th Circuit decision, he said "none of these cases involved Article 15, (section) 16 of the Kansas Constitution."

"This court may not make a determination as to the validity of this constitutional provision without a judiciable case before it concerning the court’s issuance of or failure to issue a marriage license," Fairchild wrote.

Since Monday's ruling by the Supreme Court, same-sex couples have been applying for marriage licenses in several counties, most of the time knowing they will be denied. The Kansas Equality Coalition, a gay rights advocacy group, has said it plans to work with the American Civil Liberties Union to file a direct challenge to the state's ban on same-sex marriage.

But because the Supreme Court did not directly rule on the issue — it declined to hear the appeals of five similar cases from various judicial circuits — some experts say courts in other states have not been given clear direction on how to proceed.

"If I were advising a client, I would say as much as you want to get married, it might be risky to rely on this (Johnson County) order as the basis for your marriage license," said Rick Levy, a constitutional law professor at the KU School of Law.

Levy said he doesn't believe it's clear that Judge Moriarty had the legal authority to effectively declare the state constitutional language invalid without a case or controversy before the court challenging that law. And until there is such a ruling, he said, there's always a possibility that any marriages performed in Johnson County pursuant to that order may later be declared invalid.

"Until such time that a valid court order is in place that modifies the (law), there's also no basis for issuing the license," Levy said.

Gov. Sam Brownback, a conservative Republican supporting the gay-marriage ban, said Tuesday that the state ought to defend it in court because the constitutional provision was enacted through a statewide vote.

— Elliot Hughes and The Associated Press contributed to this report.

Comments

Greg Cooper 3 years, 2 months ago

A voice of reasonableness in Kansas. Thanks, your honor, for doing your part to bring Kansas, kicking and screaming, into constitutional compliance.

Fred Whitehead Jr. 3 years, 2 months ago

I guess that gives the governor cause for concern on his stupid stand on this issue.

Or is he sly like a fox hoping that this would happen on his watch and empower his re-election chances?? Hmmmm.

Phillip Chappuie 3 years, 2 months ago

I wonder if Brownback feels like a Julius on March 15th. All I can say, it is about time. What is so wrong with people being in love? Let it Be.

Phil Minkin 3 years, 2 months ago

Attention Judge Fairchild: This is 2014, not 1850.

Leslie Swearingen 3 years, 2 months ago

The paper chose to put an ad for a traditional wedding on this page. The couple is a white, middle class and she is a blonde. Does this matter? Absolutely. They couldn't even push the envelope and make the bride brunette for pete's sake. Who do you think the people are who are going to be clicking on this?

Gay couples are not only being denied a legal marriage, which is wrong, but a myriad of other legal rights which others take for granted. If you want a definition of immoral shoving people into a closet and slamming the door in their face is it.

Matthew Herbert 3 years, 2 months ago

Lawrence citizens like to believe our town is a "little blue oasis amidst a red desert"....every once in a while our city reminds us however that perhaps that is just what we WISH Lawrence was. Actions define character. We just got "out-Liberaled" by Johnson County. Let that set in.

Terry Snell II 3 years, 2 months ago

Judge Fairchild made a decision based off law and the Kansas Constitution. Don't blame him for interpreting the law, as it currently stands. We should be concerned of Judges that make quick decisions for political reasons. Let the system work as it was designed.

Bling Crawsby 3 years, 2 months ago

You'd better start swimming or you'll sink like a stone, For the times they are a-changing

Jillian Andrews 3 years, 2 months ago

DG CO Courts = The Dark Ages on many, many issues.

Matthew Cosgrove 3 years, 2 months ago

Leslie I think you pbr understand how Internet ads work

Michael Hough 3 years, 2 months ago

To those that suggest that because the year is 2014, and not an earlier time period: please explain to me how a calendar year should dictate beliefs. My spose and I were harrassed with the same flawed argument when we chose to live seperately until marriage. There are many, many things from the dark ages that humanity still practices. Based on this logic perhaps it is wrong to navigate a sailboat because that is something from the past. And on this same note, history has told of past empires in which the homosexual relationship was common and possibly accepted- as in the ancient Greek society. I am not yet opining on gay marriage so if you respond to me please focus on my comment- not gay rights.

Kevin Elliott 3 years, 2 months ago

so many points that fail. First, you are being too literal, it is a well accepted figure of speech, not a scientific statement and you now that. Second, you choose to live apart before marriage, you choose to enjoy sailing, you choose to not get gay married, you aer not forced to choose that by people who feel they know better than you. Finally, and sort of a round about way back to the first point, Times are changing, that does not mean every single thing must completely change or all things must die out, but it is unavoidable. The concept that gay marriage is none of your freaking business is taking hold. The fact that bigots no longer have supreme rule of those they feel bigoted again is taking hold. Just as the ban against inter-racial marriages was once prevalent and is now consider shameful. Of course, at the end of the day, we must remember where we live. it should not matter if 99% of society do not want me to have equal rights and equal protection under the law, our Constitution protects me and it has taken a long time for the courts to finally realize it, but realizing it they are.

Clark Coan 3 years, 2 months ago

Since the Kansas law and constitutional provision haven't been ruled unconstitutional yet, it would take the Kansas Court of Appeals, Kansas Supreme Court, or a federal district or appeals court to invalidate the law. That is likely to come shortly.

I'm still wondering how the mental and emotional health of children raised by two fathers or two mothers is going to be. Children need role models of the opposite sex.

Kevin Elliott 3 years, 2 months ago

I would suggest you study the issue instead of just opening your mouth and regurgitating thought. There are plenty of studies now, lots of evidence from a variety of sources that show children of gay couples fare just as well as children of opposite sex couples. So, in essence, you are just making things up that are not true and presenting them as facts. Now, maybe it is just the Kansas farmboy in me, but my Grandpa taught me when you do that, you are just a shiftless liar and not to be trusted. Grandpa always respected thoughtful people who could use reason even if they believed far different than him. However, he never respected people who were blind and refused to use facts even if they agreed with him. I am not saying you are a shiftless liar, just that you sound like one for saying things that are not true to try and make your point. I wish I had my grandfathers patience and tolerance for foolishness, but alas, I do not. I am tired of bigots trying to justify their bigotry through false science, false logic and false morality. I should be more patient and try to educate you, but now that I am approaching 50, I have given up. I believe people are often fools because it is easier than being thoughtful. I have good friends who are uncomfortable with homosexuality, but they remain my friends because they are honest thoughtful people who I respect. Like my grandfather, it is not the disagreement that irks me, it is the foolishness.

Marc Lee 3 years, 2 months ago

For real? So I guess by your logic single parent children are screwed.

Dave Greenbaum 3 years, 2 months ago

Judge Fairchild is up for a retention vote this November. I wonder if that plays a part in his decision.

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