Topeka Two same-sex couples from Kansas are now asking a federal court to order the state to issue birth certificates listing them as parents of children they conceived through artificial insemination.
Those couples, including one from Lawrence who filed a similar action in Douglas County District Court last week, argue that the state is refusing to comply with a recent U.S. Supreme Court decision that said states must give full recognition to same-sex marriages.
"This just shows that recognition is not yet realized in Kansas, which means, in our view, we need a permanent injunction," said Doug Bonney, legal director for the American Civil Liberties Union of Kansas, which filed the lawsuit.
Bonney was the attorney who filed a federal lawsuit last year seeking to strike down Kansas' ban on same-sex marriage. That case was still pending in federal district court when the Supreme Court handed down its landmark decision in June.
In August, Judge Daniel Crabtree granted what's called a "declaratory" judgment in favor of the plaintiffs, meaning he struck down the provision of the Kansas Constitution and all other state statutes that banned same-sex marriages.
But he deferred issuing any kind of order or injunction compelling the state of Kansas to comply, saying he was hopeful that the state would comply on its own.
He then gave all parties in the case until Sept. 15 to submit additional evidence showing that the state either was or wasn't complying with the decision, and he gave the parties an additional 21 days beyond that, which was Monday, to respond to evidence presented by the other side.
On Sept. 15, state officials submitted numerous affidavits and documents showing that county officials throughout Kansas were granting marriage licenses and certificates, and that the Kansas Department of Health and Environment's Office of Vital Statistics was recording them.
But on Monday, the ACLU filed affidavits from three women who said the state was still not granting their marriages full recognition because it would not issue birth certificates listing both women in their marriages as parents of the children conceived through artificial insemination.
One of those affidavits came from Casey Smith, of Lawrence, who gave birth to a son in September. She and her wife, Jessica Smith, an assistant soccer coach at Kansas University, were married in California in 2013.
The other affidavits came from Christa Gonser and her wife, Carrie Hunt, who live in the Kansas City area. They were married in Canada in 2007.
Hunt gave birth Sept. 22 at Kansas University Hospital to twins that were conceived through artificial insemination.
Both couples note that their children were conceived through artificial insemination using sperm from an anonymous donor and that the procedures were done with the knowledge and consent of both spouses.
They also cite a 1968 Kansas law that says children born as a result of such a procedure, "shall be considered at law in all respects the same as a naturally conceived child of the husband and wife so requesting and consenting to the use of such technique."
Gonser stated in her affidavit that KU Hospital would not list both women as parents because its computer software only has an option for naming a mother and a father.
She said she later contacted KDHE to request a birth certificate, but was told by an official in the Office of Vital Statistics that, "since I was in a same-sex marriage, I could not be listed as a parent on my children’s birth certificates."
"She told me that I would have to obtain a second parent adoption in order to be listed as a parent on my children’s birth certificates," Gonser stated.
In their petition, they argue that Kansas is treating female spouses of women who conceive through artificial insemination differently than it treats male spouses of such women, which they say is illegal under the recent Supreme Court decision.
Tom Witt, executive director of the Wichita-based Equality Kansas, a gay rights advocacy group, said he knows of at least two other couples in Kansas who are facing the same situation.
"The one thing that we’ve been keeping our eyes open for is exactly this scenario — that the admin would go back on its word, and that it would start treating same-sex couples as second-class citizens," Witt said, referring to statements by Republican Gov. Sam Brownback, who said the state would comply with the Supreme Court decision. "It's intolerable."
KDHE officials have so far declined to comment on the cases.