Rulings give Kansas couples hope for same-sex marriages

Brownback: 'Activist judges' overruling Kansas voters

A demonstrator flies a pride flag during a rally for equality on the south side of the Kansas statehouse, Tuesday, Feb. 25, 2014. The rally was organized by Equality Kansas and the American Civil Liberties Union. Nick Krug/Journal-World Photo

? Same-sex couples in Kansas may not be able to get a marriage license just yet, but some legal experts say the day when that happens may not be far off.

The latest move in that direction came Monday when the U.S. Supreme Court refused to hear appeals in five lower-court rulings that struck down state laws banning same-sex unions. Two of those involved cases in Utah and Oklahoma, which are part of the same 10th U.S. Circuit Court of Appeals that covers Kansas.

Hours later, the 10th Circuit lifted the stay it had imposed on enforcement of those decisions, meaning they are now in full force throughout the 10th Circuit.

That means the Supreme Court has allowed those decisions to stand, and those decisions are generally binding on other states in the circuit, including Kansas, according to Kansas University law professor Rick Levy.

“In general terms, the decisions of the 10th Circuit on U.S. constitutional law are binding precedents in all of the states within the circuit,” Levy said. “So state supreme courts and federal district courts cannot simply say we reject the decision of the 10th Circuit and refuse to follow it.”

But Levy said that doesn’t mean the Kansas law is automatically invalidated because of Monday’s decisions. He said the state could still defend its constitutional ban on same-sex marriages and claim that the reasons for it are different from the reasons used in Utah and Oklahoma.

“But I think those arguments are very, very weak and unlikely to carry any weight with the 10th Circuit,” he said.

In June, the 10th Circuit struck down a provision of the Utah state constitution that is similar to the Kansas Constitution’s ban on same-sex marriage, saying: “A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union.”

A month later, the 10th Circuit struck down a similar ban in Oklahoma.

Utah, Oklahoma and Kansas all adopted their constitutional amendments around the same time, in 2004 and 2005, as state and federal courts were beginning to hear cases challenging statutes that prohibited same-sex marriages.

All three state amendments are substantially similar. They define marriage as a union between one man and one woman only, and they prevent the states from recognizing or providing the same legal benefits to any other form of marriage.

Although the 10th Circuit struck down the bans in Utah and Oklahoma, it also stayed enforcement of those rulings pending appeals to the Supreme Court. But the appellate court lifted that stay Monday, just hours after the Supreme Court said it would not hear the appeal.

In Kansas, voters approved the amendment, 70 percent to 30 percent, in the April 2005 elections. Douglas County was the only county in which a majority of voters rejected the measure.

Kansas litigation

An official in the Douglas County clerk’s office said Monday afternoon that no one yet had come in to apply for a marriage license for a same-sex couple.

In Wichita, however, the Associated Press reported that at least one couple tried Monday to obtain a license from the clerk of the Sedgwick County District Court and was denied. Kerry Wilks and Donna Ditrani told AP they would be happy to “join the cause” as plaintiffs in a lawsuit challenging the Kansas law.

Doug Bonney, legal director for the American Civil Liberties Union of Kansas, said that group is seeking a plaintiff to file a suit in federal court directly challenging the Kansas marriage amendment.

“What will happen is, if a same-sex couple goes into the clerk of the court and applies for a marriage they will be denied,” Bonney said, noting that court clerks are obliged to follow the state law. “Once that denial comes, we would file a lawsuit challenging that denial as unconstitutional. And we should win, based on the Utah and Oklahoma cases.”

Currently, the only active lawsuit in Kansas challenging the same-sex marriage ban is pending in Shawnee County District Court. David Brown, a Lawrence attorney for the plaintiffs in that case, said it challenges the state’s refusal to let same-sex couples who were legally married in another state file jointly on their state income tax returns, even though they are allowed to file joint federal returns.

A hearing in that case is set for Friday, Nov. 14.

“It is exciting, I have to say. I’m hopeful,” said Jim Peters, a gay rights activist in Lawrence who married his partner in Iowa in 2010.

Peters said he knows several couples in Lawrence and Douglas County who have been looking forward to the day when they could be legally married in Kansas.

“They didn’t know that they would have this soon of an opportunity,” he said. Many people expected the Supreme Court to hear the appeals and assumed a decision would not come for several months.

“Next summer was going to be the year of the June weddings,” he said.

Political reaction

Kansas Attorney General Derek Schmidt’s office did not return phone calls seeking a comment on Monday’s rulings.

Gov. Sam Brownback, a Republican, issued a statement late Monday saying he still supports the Kansas marriage restriction.

“I swore an oath to support the Constitution of the State of Kansas,” Brownback said. “An overwhelming majority of Kansas voters amended the Constitution to include a definition of marriage as one man and one woman. Activist judges should not overrule the people of Kansas.”

Rep. Paul Davis, D-Lawrence, who is challenging Brownback for re-election this year, voted against the resolution in 2005 placing the marriage amendment on the ballot. His campaign had no response to Monday’s ruling.

Sen. Pat Roberts, a Republican, responded to the rulings Monday saying he supports the state’s existing law, adding that it was approved by a large majority of Kansas voters.

His rival in this year’s election, independent candidate Greg Orman, said on a radio talk show Monday that he supports the rights of same-sex couples to marry, but also the rights of religious groups not to perform such ceremonies if they choose not to.