Federal judge OKs Kansas same-sex marriage; stays order pending appeal
Kansas City, Kan. ? A federal judge in Kansas City, Kan., issued a preliminary injunction Tuesday barring state officials from refusing to grant marriage licenses to same-sex couples.
But the order was immediately put on hold for one week, giving Attorney General Derek Schmidt time to appeal to the 10th U.S. Circuit Court of Appeals in Denver.
The case was filed by the American Civil Liberties Union on behalf of lesbian couples in Douglas and Sedgwick counties challenging a provision of the Kansas Constitution that recognizes marriage only as a union between one man and one woman.
In a 38-page opinion, Judge Daniel Crabtree said the preliminary injunction was justified because the plaintiffs are “substantially likely to succeed on the merits” of the case and because they “will suffer irreparable injury if the injunction is denied.”
Plaintiff Kail Marie of Lecompton said she and her partner were excited about Tuesday’s ruling, yet cautiously optimistic.
Marie, 49, and Michelle Brown, 50, have been together 21 years. Before moving to their home in rural Douglas County seven years ago, they lived in Topeka.
For Marie and Brown, being allowed to marry would represent everything from security to insurance to survivor’s benefits, Marie said. They’re already committed.
“A marriage certificate certainly will not make her and my relationship more valid to us,” Marie said. “But the legal aspects that go along with a marriage is what we are really pushing for.”
For that reason, while some Kansas couples made their marriages official in other jurisdictions, Marie said she and Brown chose not to.
“When it became legal to be married in Iowa, we thought about it, but we didn’t think it would do us any good in Kansas,” Marie said.
“So we thought we’d wait and see how things played out in the courts. We never expected them to play out this quickly.”
“This is a giant step forward down the road to marriage equality,” said Tom Witt, director of Equality Kansas, a gay rights advocacy group. “We thank Judge Crabtree for honoring the constitution, and we call on Gov. (Sam) Brownback and Attorney General Schmidt to do the same.”
The immediate impact of the order could be very limited, but it also paves the way for the 10th Circuit, which has overturned similar state laws banning same-sex marriage, to rule directly on the constitutional ban in Kansas.
The order applies only to the defendants in the case — district court clerks in Douglas and Sedgwick County who are responsible for issuing marriage licenses — and the secretary of the Kansas Department of Health and Environment, whose Office of Vital Statistics records marriage certificates.
It does not, however, apply to recognizing same-sex marriages that were performed legally in other states. Doug Bonney, the ACLU attorney who argued the case, said during a hearing last week that the suit is only about issuing marriage licenses.
Lawrence attorney David Brown has represented members of the LGBTQ community since he opened his office in 1992 and currently teaches an LGBTQ seminar at Kansas University School of Law.
His reaction to Tuesday’s ruling: “The decision today is truly exciting. It brings Kansas one step further into joining the rest of the country in recognizing the equality rights of same-sex couples.”
Brown currently represents a same-sex couple in a Shawnee County District Court case challenging the Kansas tax code. He filed a friend of the court brief in the Johnson County same-sex marriage case awaiting a decision from the Kansas Supreme Court. Amid those cases and Tuesday’s federal ruling, Brown said his clients are asking, ‘When can we get married?”
“Even with this decision today, we can’t give them an answer to that question,” he said Tuesday. “While appeals continue and while these decisions are being debated, folks who are wanting to get married just have to wait.”
Still, gay rights activists like Jim Peters remain hopeful. Peters, who serves as director of Kansas University’s Osher Lifelong Learning Institute, wed his partner four-and-a-half years ago in Iowa, but is frustrated by the limits on his “rights as a married person” in Kansas.
“It does affect us directly on a day-to-day basis. I cannot extend medical benefits to my spouse, we technically cannot make decisions for each other’s health, we had to prepare five different tax returns last year because of the differences in federal and state tax returns,” Peters said. “We’re inching our way closer, but I just wish we’d cross that finish line.”
Schmidt’s office indicated at the hearing that it would appeal any decision granting the injunction.
Crabtree’s order stated the stay would be in effect until 5 p.m. Nov. 11, unless the state informs the court earlier that it will not seek an appeal.