Kansas attorney general asks state Supreme Court to block same-sex marriage licenses after first wedding performed

The first same-sex couple married in Kansas, Angela and Kelli, poses in front of the Johnson County courthouse in Olathe. The two women, who did not wish to be identified by their full names, were issued a marriage license before 9 a.m. Friday, Oct. 10, 2014, and were married immediately afterward.

Statement on behalf of Kelli and Angela

From Equality Kansas:

This morning, October 10, 2014, Kelli and Angela were married in a brief ceremony at the Johnson County courthouse in Olathe, Kansas. The ceremony was officiated by their pastor, after which they both returned to work.

Kelli and Angela are grateful for the outpouring of congratulations, well-wishes, and support from around our great state and nation. They are celebrating their marriage in a typically Kansan way: Privately, with family and close friends. They ask that we respect their privacy, and they look forward to the day when same-sex marriages are no more newsworthy than any other marriage.

They ask that further inquiries regarding their marriage be directed to Equality Kansas.

Join us in wishing them long and happy lives together. We look forward to celebrating every same-sex marriage as they are performed in the coming days and weeks.

The first same-sex marriage in Kansas was performed Friday morning after a license was issued at the Johnson County Courthouse in Olathe.

But hours later, Kansas Attorney General Derek Schmidt asked the state Supreme Court to issue an immediate order to block same-sex marriage licenses.

Schmidt said the Johnson County district court’s chief judge, Kevin Moriarty, exceeded his authority Wednesday when he issued an administrative order directing the clerk’s office to process licenses for same-sex couples just as it would for opposite-sex couples.

Schmidt said his goal is to “freeze the status quo in place until the legal dispute can be properly resolved.”

As a state senator in 2005, Schmidt voted in favor of the constitutional amendment banning same-sex marriage.

“I am a strong advocate for an orderly resolution of this dispute in a way that will be accepted by all parties as legally correct and that allows the state to defend its constitutional provision and its laws,” Schmidt told The Associated Press just before his office filed the petition.

Kansas Gov. Sam Brownback issued a statement supporting Schmidt’s petition.

“I swore an oath to support the Constitution of the State of Kansas. 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.

“I support the action taken by the Attorney General to ensure an orderly judicial process in determining this issue and to avoid the confusion created by inconsistent judicial rulings.”

Sandy McCurdy, chief clerk of the Johnson County District Court, said the first license was issued to a female couple before 9 a.m. Friday. The women were married immediately afterward.

“They had someone here with them to do it, and they went ahead and did it,” McCurdy said.

McCurdy did not identify the couple, saying it is the county’s policy not to give out the names of individuals receiving licenses, but she said she believed the couple are Johnson County residents.

Equality Kansas identified the women by first names only, Angela and Kelli. Tom Witt, executive director of Equality Kansas, said the couple was trying to avoid publicity.

Johnson County is currently the only county in Kansas issuing marriage licenses and had accepted 42 applications as of Thursday afternoon, according to The Associated Press.

The county court’s order on Wednesday came on the heels of Monday’s U.S. Supreme Court decision not to review lower court rulings that had struck down bans on gay marriage in several other states, including Utah and Oklahoma.

Those states are part of the 10th U.S. Circuit Court of Appeals, which also has jurisdiction over courts in Kansas.

But other courts, including the one in Douglas County, have so far refused to grant marriage licenses to same-sex couples unless or until a higher court directly strikes down the Kansas Constitution’s ban on such marriages. Voters in Kansas approved that amendment in April 2005.

The American Civil Liberties Union has said it plans to file a federal lawsuit challenging the Kansas law on behalf of couples who have been denied licenses.

Doug Bonney, legal director for the ACLU of Kansas, has said that lawsuit could be filed as early as next week.

Witt said Friday’s wedding marked “a historic day in Kansas and for gay and lesbian couples across the state.”

“Words can’t describe how important this is,” Witt said.

But some legal experts say the status of the law in Kansas is still unsettled because, to date, no court has specifically struck down the marriage provision of the Kansas Constitution.

Rick Levy, a constitutional law professor at Kansas University, said this week that it’s possible any marriages performed before such a court ruling is given could later be declared invalid.

But Witt said he doesn’t believe that’s the case. “I don’t think there’s any ambiguity here,” he said.

What’s next?

Regardless of whether the Kansas Supreme Court issues an immediate order to block same-sex marriage licenses in Johnson County, any marriages that occurred there Friday would not be directly affected, according to a Kansas University law expert.

A stay on the Johnson County administrative order to issue marriage licenses to same-sex couples would only prevent the clerk of the court from issuing more of them, KU law professor Lumen “Lou” Mulligan said Friday.

It “would not directly address any marriages that took place in the interim period,” he said. “The validity of that marriage would be a distinct legal question that would be answered in a different proceeding.”

But should the state supreme court decide not to impose a block, Mulligan said he would not interpret that as tacit approval for court clerks all over the state to begin handing out marriage licenses to same-sex couples.

If same-sex marriage is going to become legal by way of the judicial system in Kansas, Mulligan said, there is no way to do it other than through filing a lawsuit that would work its way through the courts, which is something the American Civil Liberties Union has said it plans to do.

Mulligan said the Kansas Supreme Court can skip over the Kansas Court of Appeals to hear a case — a rare exercise of authority — but even then it would take some time until a final ruling comes.

“There’s really no way to say, ‘Can we get a ruling tomorrow?'” Mulligan said.