The assault on same-sex marriage bans zeroed in on Kansas on Friday with a new legal challenge that could clear the way for gay marriage in yet another state.
Two lesbian couples – one from Wichita and another from Lecompton – challenged the state’s ban in federal court Friday afternoon.
The lawsuit capped a topsy-turvy day that began with the state’s first same-sex marriage in Johnson County.
It ended when the state Supreme Court temporarily stopped the county from issuing any more licenses to gay couples.
The lawsuit by the two couples comes just days after the U.S. Supreme Court opened the door for same-sex couples to wed in Kansas when it let stand lower-court rulings that found bans on same-sex marriages unconstitutional.
Although the court did not rule on the Kansas law, it kept in place an appeals court ruling that would be binding if a challenge was brought against the state law.
Legal experts say Kansas won’t prevail in the lawsuit unless it can show how its ban differs from those in other states where laws have already been struck down.
“The attorney general can save the state money, time and energy by just conceding,” said University of Richmond law professor Carl Tobias, who has tracked same-sex marriage fights nationally.
Tobias pointed out that a judge on Friday followed a federal appeals court ruling from a different part of the country to strike down North Carolina’s same-sex marriage ban approved by voters in 2012.
Likewise, legal experts think a federal judge in Kansas will be obligated to follow a ruling from the 10th Circuit U.S. Court of Appeals striking down same-sex marriage bans in Oklahoma and Utah.
“There is little chance that a court would conclude that the Kansas constitutional provision and statutes are valid even though the Oklahoma and Utah ones were not,” said University of Kansas law professor Richard Levy.
Republican Gov. Sam Brownback has called for a vigorous defense of the state constitutional amendment banning same-sex marriage and the Kansas statute limiting marriages to straight couples. The amendment was approved by 70 percent of the voters in 2005.
“Look, the people of Kansas voted on this,” Brownback said in his office Friday. “They voted nearly 70 percent to put it in their constitution that marriage is defined as a man and a woman. I will defend that vote. I support that, that marriage is a union of a man and a woman.”
Attorney General Derek Schmidt could not be reached late Friday for comment on the lawsuit, which was brought by the American Civil Liberties Union of Kansas on behalf of the two couples.
License issuing on hold
Schmidt spent Friday in state court trying to stop Johnson County from issuing marriage licenses to same-sex couples.
He persuaded the state’s high court to temporarily delay Johnson County Chief Judge Kevin Moriarty’s order directing the court clerk to issue marriage licenses for same-sex couples. The county, however, can continue to accept the applications.
However, the court didn’t set a hearing on the Johnson County case until Nov. 6, well after the ACLU expects to have a ruling on the much larger question of whether the state’s gay marriage ban is constitutional.
It was unclear how the Kansas Supreme Court’s ruling would affect two Olathe women married Friday morning at the Johnson County Courthouse.
Moriarty issued his order earlier this week, reasoning the state had to comply with a standing federal appeals court decision that found same-sex marriage bans unconstitutional.
Moriarty’s ruling made Johnson County the only place in Kansas where same-sex couples could get marriage licenses. As of Friday, 62 same-sex couples had applied for marriage licenses in the county.
But the attorney general asked the state Supreme Court to stop the county from issuing marriage licenses to same-sex couples, arguing the judge acted prematurely since the Kansas law had not yet been challenged with a lawsuit that would give a judge the power to act.
Moriarty, the attorney general said, abandoned “all pretense of objectivity” and rushed to “to declare a victor in a fight that has not yet commenced.”
Fate of Kansas ban
The dispute between Schmidt and Moriarty might be irrelevant if the ACLU prevails in getting the entire same-sex marriage ban thrown out.
Doug Bonney, chief counsel for the ACLU of Kansas, said the case is “about as straightforward as it gets” following the 10th Circuit’s ruling that state bans on same-sex marriage are unconstitutional.
“When we go before the judge we’re going to ask for a ruling that makes it clear that this is the law in the state of Kansas,” Bonney said.
The complaint argues that the state’s same-sex marriage ban, passed as a constitutional amendment in 2005, violates the 14th Amendment of the U.S. Constitution, which guarantees equal protection under the law.
“Marriage is universally recognized and celebrated as the hallmark of a couple’s love for and commitment to one another. … Lesbians and gay men in Kansas are denied the freedom afforded to different-sex couples in this State to have their loving, committed relationships recognized through marriage,” the complaint states.
The plaintiffs, Kerry Wilks and Donna DiTranni, live in Wichita and have been together for five years. The other plaintiffs, Kail Marie and Michelle Brown, have been together for 20 years and live in Lecompton.
The suit names the clerks of the Sedgwick and Douglas County District Courts as defendants.
Democrat Paul Davis treaded lightly when addressing the issue.
“Ultimately, this issue will be determined by the courts,” Davis said in a statement. “It is important that communities wait until the courts rule on the constitutionality of the law.”
Equality Kansas endorsed Davis for governor over Brownback and Libertarian Keen Umbehr on Friday, citing his voting record, but the organization noted that some of his recent public statements “call into question the strength of his commitment to LGBT equality.”
Tom Witt, executive director of the LGBT rights group Equality Kansas, rebuked both Schmidt and Brownback in a short statement.
“The Federal courts have ruled, and we all know how this will end,” Witt said. “Delaying the inevitable is a waste of time and taxpayer money, and a gross injustice to LGBT Kansans and their families.”
Amanda Goodwin and Jena Knight were among those applying for a marriage license Friday in Johnson County. Regardless of whether Johnson County can issue marriage licenses, they were confident they’ll ultimately be legally married.
“These walls have been coming down for a long time,” Goodwin said. “It’s going to happen eventually.”
For another couple, Kelli and Angela, the walls did come down Friday when they received a marriage license shortly after 8 a.m.
Their ceremony took less than five minutes with a short exchange of vows and rings followed by an embrace and kiss. By 8:23 a.m., they were married.
They said they purposefully did not go to another state because they wanted to be married in Kansas.
“We’ve just been waiting for Kansas to get on board with marriage equality,” Angela said after the ceremony held just outside the court clerk’s office. She and her spouse, Kelli, asked that their last names not be used.
“This is our home state. This is where we live. This is where we pay our taxes. This is where we raise our children.”
More importantly, Kelli said the wedding established the couple along with other Kansas families who are recognized by state law.
Angela, 36, and Kelli, 29, were joined at the ceremony by their children, Kelli’s mother and a family friend. The ceremony was conducted by a pastor from the Shawnee Mission Unitarian Universalist Church in Lenexa.
“We are hoping that this is a good opportunity for everyone in Kansas to see that we are a normal regular family,” Kelli said. “We are excited that other families will be recognized as regular families now.”