Supreme Court puts hold on Tuesday expiration of Kansas gay marriage ban

U.S. Supreme Court Justice Sonia Sotomayor on Monday put a hold on a lower-court order that would have opened the door for same-sex couples to get married in Kansas as early as Wednesday.

Kansas Attorney General Derek Schmidt had requested the stay following a decision last week by U.S. District Court Judge Daniel Crabtree, who said state court officials in Douglas and Sedgwick counties must begin issuing marriage licenses to same-sex applicants starting Wednesday.

Schmidt appealed that ruling to the 10th U.S. Circuit Court of Appeals, but the appellate court on Friday refused to delay Crabtree’s ruling. Schmidt then filed an emergency request with Sotomayor, who handles emergency appeals from states within the 10th Circuit.

As part of her response, Sotomayor also directed the American Civil Liberties Union to file a response to Schmidt’s request by 4 p.m. Tuesday.

In his motion to Sotomayor, Schmidt said Crabtree’s order should be delayed until the federal lawsuit challenging the state’s ban on gay marriage can be fully heard on its merits and all appeals are exhausted. He also argued that the federal courts should refrain from taking action until another case pending before the Kansas Supreme Court is decided.

Meanwhile, Douglas County court clerk Douglas Hamilton had been preparing to start processing marriage licenses for same-sex couples as early as Wednesday and was bracing for an onslaught of applications.

“We have another location set up in the courthouse to handle the overflow,” Hamilton said before Sotomayor’s action.

Judge Crabtree’s order was limited just to Douglas and Sedgwick counties because those are the counties where the plaintiffs in the lawsuit, two lesbian couples, reside. It also applies to the Secretary of the Kansas Department of Health and Environment, whose Office of Vital Statistics governs the forms used to apply for licenses and records marriage certificates.

Rick Levy, a constitutional law professor at Kansas University, said he thinks it’s unlikely the Supreme Court will delay gay marriage in Kansas much longer.

“The Supreme Court has already allowed judicial orders invalidating these laws to go into effect in other states,” Levy said. “It’s unclear to me why Kansas would be any different from those other states.”

In October, the Supreme Court refused to hear the appeal of several cases in which federal appeals courts had struck down state bans on same-sex marriage. Two of thsoe cases were from the 10th Circuit.

Last week, however, the Sixth Circuit Court of Appeals in Cincinnati upheld state bans on gay marriage in four other states, setting up the possibility that the high court will now take the appeals.

Meanwhile, if Crabtree’s order is allowed to take effect, it remains unclear whether gay marriages will be allowed to proceed only in Douglas and Sedgwick counties, or if the order will apply statewide.

In a separate case pending at the Kansas Supreme Court, the attorney general’s office is seeking an order to block the Johnson County District Court from granting licenses to same-sex couples. Schmidt’s office filed that action Oct. 10 when Judge Kevin Moriarty issued an administrative order directing the court clerk’s staff to process those license applications as they would for opposite-sex couples.

The Kansas Supreme Court granted that order, known as a writ of mandamus, saying it was necessary “in the interest of establishing statewide consistency.”

But following Judge Crabtree’s order in the federal case, the Kansas high court later delayed a hearing in the Johnson County case, which had been set for Nov. 4. The Kansas court now is asking the parties to show cause why the Johnson County case should not be put on hold until the federal case is resolved.

Witt said he hopes gay marriages can begin statewide on Wednesday.

“It’s going to be a strange day when your constitutional rights are predicated on what county you live in,” he said.