Shawnee County court calls off same-sex marriage hearing

? A judge in Shawnee County has canceled a hearing that was set for Friday in a case challenging the state’s refusal to recognize same-sex marriages performed legally in other states.

Judge Frank Theis canceled the hearing in the case Thursday in light of Wednesday’s U.S. Supreme Court order allowing gay marriages to go forward in at least two counties in Kansas, according to an email from his office.

But Theis did not dismiss the case entirely, according to the email, and he left open the possibility that the hearing could be rescheduled.

The case involves two same-sex couples, one in Lawrence and another in Douglas County, who were legally married in California, but who were not allowed to file joint income tax returns in Kansas because of the state’s ban on same-sex marriages.

It was the only case so far to challenge the state’s refusal to recognize same-sex marriages. The other prominent cases in Kansas all challenged the state’s refusal to grant licenses to gay couples who want to get married in Kansas.

David Brown, the Lawrence attorney who filed the lawsuit, said Thursday that he expected the case to be postponed in light of the other cases still pending at that time before both the Kansas and U.S. Supreme Courts.

“My clients are disappointed, but a decision in either of the other two Kansas cases now pending will most likely be controlling in our case,” Brown said in an email Thursday after he first heard the case would likely be postponed. “I understand the judge’s desire to wait and avoid wasting his time.”

Late Thursday, the U.S. Supreme Court lifted a stay on a district court judge’s temporary injunction to allow same-sex couples to obtain marriage licenses in Douglas and Sedgwick counties.

U.S. District Judge Daniel Crabtree issued that order Nov. 4. Even though the federal lawsuit challenging the state’s ban has not yet been tried, Crabtree said it was unlikely that the state would win on the merits of the case because the 10th U.S. Circuit Court of Appeals had already declared such bans in other states unconstitutional.

Kansas Attorney General Derek Schmidt is continuing to defend the state’s ban, and he says the Supreme Court order only applies in the two counties named in the case.

But court officials in Shawnee County said Thursday that they will issue marriage licenses to same-sex couples, although none had applied as of early Thursday morning.

The Johnson County District Court is still under an order from the Kansas Supreme Court not to issue any such licenses. Schmidt’s office sought that order in October after the chief judge there, Kevin Moriarty, issued an administrative order allowing his court staff to grant licenses to same-sex couples.