Johnson County judge issues order approving marriage licenses for same-sex couples

A Johnson County judge issued an order Wednesday that same-sex couples shall be issued marriage licenses.

The order follows the U.S. Supreme Court’s decision to not review a federal appeals court ruling overturning same-sex marriage bans in Utah and Oklahoma, which, like Kansas, fall under the jurisdiction of the 10th Circuit Court.

Kevin Moriarty, chief judge of the Johnson County District Court, ordered Wednesday that “the clerk of the district court is hereby directed to issue marriage licenses to all individuals, including same-sex individuals, provided they are otherwise qualified to marry.”

Because Kansas does not have a residency requirement for marriage licenses, same-sex couples from all over the state can go to Johnson County and get a license to marry, according to Tom Witt, the executive director of Equality Kansas, an organization for lesbian, gay, bisexual and transgender rights. Kansas has a three-day waiting period for marriage licenses.

“I am extremely happy about it, but I’m still trying to catch my breath,” Witt said.

Evan Shaheen, president of Wichita Pride, called the judge’s order “a great step forward for Kansas.” Wichita Pride supports the gay community in the Wichita area, according to its website.

Sedgwick County continued to deny marriage licenses for gay couples in the county. Chief Judge James Fleetwood said Wednesday he is still bound by the state law that bans same-sex marriage.

That could change if any of a number of steps is taken, he said. The Kansas attorney general could state that he will not defend the law against a legal challenge, the Kansas Supreme Court could order clerks around the state to begin issuing licenses, or a case could be filed in state or federal court challenging Kansas’ law based on the 10th Circuit Appeals Court ruling.

“Many steps could be taken; I’m just waiting for somebody to take one of those steps,” Fleetwood said. “Until then, I feel obligated to apply the law of the state of Kansas as it presently exists.”

Shaheen said couples in Sedgwick County have received preliminary paperwork but will not receive licenses unless clerks are instructed to issue them.

Moriarty’s order states that a copy was sent to Attorney General Derek Schmidt. The attorney general’s office did not respond for comment Wednesday.

For his part, Gov. Sam Brownback plans to fight the order.

“I swore an oath to support the Constitution of the State of Kansas,” Brownback said in a statement. “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.”

Paul Davis, the Democratic challenger in the governor’s race, has been relatively quiet on the debate about same-sex marriage.

Davis voted against the constitutional amendment to ban same-sex marriage in 2005 as a member of the Legislature, but on Monday, he said he respected that the majority of the state voted to support it. He said he would leave it up to the court system to resolve the issue.

“The court system is clearly sorting this out all over the country,” Davis said. “They’re going to continue sorting it out here.

“But a governor has a certain amount of political capital they can use, and I’m not going to use mine on ones that are particularly divisive in the state. I really want to use it on issues that I think are going to unite Kansans.”

Same-sex marriage bans across the country have been struck down in the wake of the Supreme Court’s 2013 decision to overturn parts of the federal Defense of Marriage Act.

“I knew that eventually – or hopefully – that Kansas would join the rest of the country, but this was great news to walk into on a Monday morning,” said Cristel Heffron, a 32-year-old resident of Peck who has been with her partner for three years.

Heffron said she and her partner were turned away from the Sedgwick County courthouse on Monday. They plan to try their luck in Sumner County on Thursday.

“It’s a never-ending battle, but it’s getting there,” she said.

Rep. Steve Brunk, R-Wichita, an outspoken opponent of same-sex marriage, questioned Moriarty’s authority to issue the order.

“It’s extraordinarily disappointing that a handful of judges can tell an entire state that their constitution is unconstitutional when 104 out of 105 counties voted to approve of this in our constitution,” Brunk said. “The courts probably shouldn’t be involved in this at all.”

Brunk was one of the primary proponents of a bill that would have allowed county clerks to refuse to issue marriage licenses to same-sex couples if to do so would conflict with the clerks’ religious beliefs in the event that same-sex marriage became legal. The bill would also have enabled businesses to refuse service to such couples.

The bill passed the House but hit a dead stop in the Senate amid national controversy. Supporters plan to revive the issue next year.

Davis has promised, if elected, to veto the legislation, which he says sends a disturbing message that Kansas is an unwelcoming state.

The governor has not taken a clear stance on the legislation.

But Dave Depue, director of the Capitol Commission and chaplain at the Statehouse, said he prays with Brownback regularly and advises him on social issues. He said Brownback assured him he would have signed the bill had Senate leaders not balked.

The governor’s office disputed Depue’s recollection but asserted the governor’s general support of religious liberty.

“The governor has always supported religious liberty,” said Eileen Hawley the governor’s spokeswoman. “He never discusses in the hypothetical whether he will sign a bill, because until a bill reaches his desk, we can’t know what it will contain.”

This story was originally published October 8, 2014 at 4:10 PM with the headline "Johnson County judge issues order approving marriage licenses for same-sex couples."