Federal judge in Kansas says he’ll decide soon in gay marriage case
Kansas City, Kan. ? A federal judge said Friday that he would decide soon whether to issue an injunction against state officials who are denying marriage licenses to same-sex couples.
But even if the court does issue the injunction, Kansas Attorney General Derek Schmidt’s office said it would ask for a stay pending an appeal to the 10th U.S. Circuit Court of Appeals in Denver.
“I had a pretty good idea going in that I might not be the last judge to hear this case,” U.S. District Judge Daniel Crabtree said from the bench.
The case was filed by the American Civil Liberties Union on behalf of two lesbian couples — Kail Marie and Michelle Brown of Douglas County; and Kerry Wilks and Donna DiTriani of Sedgwick County — who say they are being denied a fundamental constitutional right.
Doug Bonney, legal director for the ACLU of Kansas, said the injunction is needed because “every day, every minute, every second that goes by … is one more irretrievable minute” that his clients are being denied the right to marry.
The case was filed after the U.S. Supreme Court in October refused to hear the appeal of several cases in which appellate courts had struck down state bans on same-sex marriage. Two of those cases were from the 10th Circuit, which has jurisdiction over federal courts in Kansas.
Bonney said the 10th Circuit decision is binding on his clients’ case because the state bans in Oklahoma and Utah are nearly identical to the one in the Kansas Constitution, which voters approved in 2005.
But Assistant Attorney General Steve Fabert said the court should not even rule because a similar issue is pending before the Kansas Supreme Court.
Schmidt’s office filed that case after the chief judge in Johnson County, Kevin Moriarty, issued an administrative order Oct. 8 directing court clerks there to grant licenses to same-sex couples. That same day, Douglas County District Judge Robert Fairchild issued an opposite order, saying there was no legal authority to issue such licenses until a higher court specifically strikes down the Kansas law.
Fabert also argued that the ACLU’s petition names defendants who have no authority over making decisions about whether to grant marriage licenses. The defendants are the district court clerks in Douglas and Sedgwick Counties and Kansas Department of Health and Environment Secretary Robert Moser.
The Kansas Supreme Court has issued a temporary injunction against granting marriage licenses until it can rule on Schmidt’s petition, which argues that Judge Moriarty had no legal authority to issue his administrative order, which effectively strikes down the state constitutional ban on same-sex marriage, without a case or controversy in front of him challenging the ban.
Fabert argued that the ACLU was effectively trying to use the federal court to reverse an injunction issued by a state court, which he said is generally not allowed.
But Bonney said the Kansas Supreme Court could decide that case without ever addressing the constitutional question of whether the Kansas ban violates the U.S. Constitution’s 14th Amendment, which prohibits states from denying its citizens equal protection of the laws.
The case has also turned into an election issue in the race for governor. Republican Gov. Sam Brownback has defended the state’s same-sex marriage ban because it was approved by a majority of voters, and he has run ads saying Democratic challenger Paul Davis would appoint “liberal judges” who would overturn state laws.
Outside the courtroom, plaintiffs Wilks and DiTriani said they’ve been offended by the statements from Brownback and Schmidt, and that they feel like they were being used as “election fodder.”
“There is absolutely no reason why we should not be following the law of the land,” Wilks said. “We want the same protections that every other Kansas citizen gets.”