At a public debate in Lawrence Tuesday about gay marriage's legality, a local attorney and Indiana's solicitor general predictably shared little common ground. But where they did come to agreement was where future court decisions would come down on the matter.
The consensus: It doesn't look good for states defending same-sex marriage bans.
"I assume that if a state supreme court or a circuit rules in favor of states, that the (U.S.) Supreme Court's hand will be forced, and I'm not optimistic about the state's chances in that event," said Thomas Fisher, who as Indiana's solicitor general argued in vain to preserve his state's ban before the Seventh Circuit Court of Appeals this past summer.
Thomas was joined at the Lawrence forum by attorney and Kansas University adjunct faculty member David Brown, as well as about 50 audience members at the Dole Institute of Politics to debate whether gay marriage should be governed by constitutional rights or states' rights.
Earlier this month, the U.S. Supreme Court decided to let stand the ruling from the Seventh Circuit and other circuit courts, effectively permitting same-sex marriages in Indiana and four other states.
Brown, who specializes in working with same-sex couples in Kansas, stood in for a sick Roberta Kaplan, who represented Edie Windsor in the landmark United States v. Windsor case that struck down a section of the Defense of Marriage Act in 2013.
Thomas repeatedly framed same-sex marriage as an aspect of society that states have the right to regulate. He said states should prefer children to be raised by their biological parents, and that codifying marriage as one man and one woman is a way of encouraging that practice.
But Brown dismissed those arguments, saying plenty of heterosexual couples who are unable to have children, or do not intend to, are still legally allowed to wed. Marriage bans are simply a matter of equality and rights, he argued.
"The definition of marriage is it's a civil contract that entitles you to certain benefits and protections by law. Whether you're a heterosexual couple or a same-sex couple, that doesn't matter. You should be entitled to the same benefits."
The American Civil Liberties Union is seeking a court order that would allow gay marriages in Kansas, and a federal judge has set a hearing for this Friday.