Nine years ago, Kansans overwhelmingly voted to amend the state constitution to leave no doubt that same-sex marriage and civil unions were unlawful. But it’s getting difficult to see that bulwark holding, especially after the 10th U.S. Circuit Court of Appeals panel’s ruling last week that Utah’s ban is unconstitutional under federal law.
The 2-1 decision – stayed for now – matters to the state because Utah and Kansas are in the same federal circuit. Seventeen state and federal judicial rulings have now sided with advocates of same-sex marriage since last year’s U.S. Supreme Court decision struck down parts of the Defense of Marriage Act. But last week’s ruling out of Denver was the first by a federal appellate court. Experts think it moves the constitutionality question closer to the Supreme Court steps.
“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,” the court said in the decision written by Judge Carlos Lucero, a Clinton nominee whose opinion was shared by Judge Jerome Holmes, a nominee of President George W. Bush.
Yet Kansas not only prohibits gay marriages but bars same-sex couples who married elsewhere from filing state income taxes jointly, treating legal spouses as if they are strangers.
The judges pointed to the due process and equal protection clauses of the U.S. Constitution, not to polls. But the court of public opinion is moving even more rapidly and decisively regarding same-sex marriage, with Americans’ opposition having plunged from 54 to 39 percent in just five years in Pew Research Center polling.
Religious views also are shifting, with the Presbyterian Church (USA) assembly recently voting to recognize same-sex marriage as Christian and with support among Catholics having soared to 59 percent (up 23 points since 2009).
What about Kansas? Public Policy Polling found 44 percent support in the state this year for legalizing same-sex marriage, up 5 points in a year, and 59 percent opposed to the controversial House-passed bill that would have enabled public and private employees to refuse service to same-sex couples based on religious beliefs.
Kansas’ marriage amendment always seemed like a panicked invitation to litigation and confusion unlikely to have a fortifying effect on marriage and families. In the view of The Eagle editorial board at the time, it also offended by using the state constitution, a source and guarantee of freedoms, as a vehicle for the majority to spell out a denial of rights to a minority.
The 10th Circuit panel had a similar problem with Utah’s ban, saying the court may not “defer to majority will in dealing with matters so central to personal autonomy. The protection and exercise of fundamental rights are not matters for opinion polls or the ballot box.”
There is still a long legal road for the Utah case, and the 10th Circuit’s decision on Oklahoma’s ban is pending. Religious opposition on moral grounds is still fervent and heartfelt in Kansas and elsewhere, especially among evangelical Christians.
But last week’s ruling made it less likely that Kansas will be able to wall itself off as a sanctuary for “traditional marriage” and a place where gay marriage is banned and same-sex partners are second-class citizens.