May 31, 2014

Challenge to Kansas same-sex marriage ban makes its way through the courts

Backers of gay marriage are on an undefeated roll through the U.S. court system, a streak they hope carries into Kansas.

Backers of gay marriage are on an undefeated roll through the U.S. court system, a streak they hope carries into Kansas.

Since the U.S. Supreme Court last June struck down part of the Defense of Marriage Act and granted federal recognition to legally married same-sex couples, 13 judges in states across the nation have either overturned state bans against gay marriage, or ordered states to recognize gay marriages from other states. Not one case has gone the other way.

“It’s absolutely encouraging,” said Thomas Witt, executive director of Equality Kansas, a lesbian, gay, bisexual and transgender rights organization. “Judges of all backgrounds and political affiliations are striking down these state-level bans. It doesn’t matter if they were appointed by George W. Bush, Barack Obama or Bill Clinton.”

The string started in Utah where a judge ruled in December that that state’s voter-approved ban on same-sex marriage was unconstitutional. That case, and a similar one in Oklahoma, have been appealed to the 10th Circuit Court of Appeals in Denver, which affects Kansas. If those decisions are upheld, they could open the door for similar bans – such as the one Kansas voters passed in 2005 – also to be ruled unconstitutional. A Kansas court case is underway in Shawnee County.

The string of court rulings has been hard to watch for Robert Noland, executive director of the Kansas Family Policy Council, which opposes gay marriage.

“It’s kind of like an activist court has decided to change the will of the voters in those states,” he said.

Kansas’ 2005 amendment, which declares marriage as between “one man and one woman only,” was passed by 70 percent of the voters, Noland said. He thinks it ultimately will be upheld.

“We believe there’s a strong case for a states’ rights determination on gay marriage in the United States of America,” he said. “Even some of the justices that declared the federal DOMA unconstitutional made reference to the ability of states to do this.”

Kansas lawmakers in the recent session reacted to the court rulings overturning same-sex marriage bans in other states with a bill that would have given public and private employees the right to refuse service to same-sex couples based on their religious beliefs about marriage. It passed the House but was stopped in the Senate.

Legal in 18 states

Gay marriage now is legal in 18 states and Washington, D.C. Illinois will join the list on June 1. Oregon and Pennsylvania are the most recent states where judges have legalized same-sex marriages. Bans in seven other states have been overturned by courts but are under appeal.

All other states except North Dakota have legal challenges pending either against constitutional bans or failures to recognize gay couples married in other states.

The Kansas challenge falls under the latter category. It comes in a lawsuit filed in December in Shawnee County District Court against the Kansas Department of Revenue on behalf two gay couples who were legally married in California and now reside in Kansas.

The suit argues the department is discriminating against them because it forbids them from filing joint state tax returns as married persons, as they are required to do under federal law.

In October, the revenue department issued guidance requiring each person in a gay or lesbian marriage to file state taxes either as an individual or head of household, and to use a special work sheet to determine each person’s adjusted gross income if they filed as married on their federal returns.

The lawsuit argues that Kansas’ own statutes require the state to conform to the federal tax code, and that because federal law recognizes gays as married couples, so should Kansas.

It also argues that the revenue department didn’t follow its own statutory requirements in adopting its new rule.

The third prong of its argument is that the state’s actions are unconstitutional and deny the couples equal protection and due process.

David Brown, an attorney in Lawrence who filed the lawsuit, said all briefs in the case should be into the court by the end of June.

“I would expect at that point the judge will have a hearing to determine how to proceed,” he said.

Freda Warfield, executive office administrator for Revenue Secretary Nick Jordan, said the department had no comment on the lawsuit.

“The Kansas Department of Revenue published income tax return filing guidance for same-sex couples in compliance with the Kansas Constitution and Kansas law,” she said in an e-mail to The Eagle. “Several other states that do not recognize same-sex marriage have published similar guidance.”

Awaiting a ruling

Brown said the case could be made moot if the 10th Circuit Court adopts the lower court rulings in the Utah and Oklahoma cases and says those state constitutional bans are unconstitutional.

But he also said it’s almost certain the losing side would appeal to the Supreme Court and seek a stay.

“Everything still could be on hold until the Supreme Court rules,” Brown said.

Witt predicted a case could reach the Supreme Court in another 13 months.

“I think this is going to be over,” he said. “If we’re still having this conversation in 14 months, I’ll be surprised.”

One trend he likes is that elected officials in other states, including Republican Gov. Tom Corbett of Pennsylvania, are deciding not to appeal the court rulings overturning their same-sex marriage bans.

Which is a concern for Noland.

“In other states, I think people have been surprised by what their elected folks have done, and as always voters should be attentive to whom they’re electing,” Noland said.

Kansas Gov. Sam Brownback declined through his spokeswoman to say whether he would appeal if Kansas’ ban is overturned.

“We are not going to comment on a hypothetical situation,” Eileen Hawley said in an e-mail to The Eagle.

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