Same-sex marriage ban may soon fall

The U.S. Supreme Court made history Monday by not taking up five states’ same-sex marriage cases, meaning such unions may soon be lawful in 30 states including Kansas. Most people knew such a day would come, but the speed and sweep of the change came as a surprise.

Utah and Oklahoma cases were among those the high court declined to take. Those states’ gay-marriage bans were declared over the summer to be unconstitutional by a 10th U.S. Circuit Court of Appeals panel. Because Kansas is in the same Denver-based circuit, those decisions now stand and Kansas’ 9-year-old ban may fall, too, given that the appeals court said in the Utah case, “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.”

Since two Supreme Court decisions found some limited favor with same-sex marriage last year, about 40 state and federal rulings have reflected the high court’s thinking.

Other cases are working their way through the courts, though. And don’t expect the champions of Kansas’ 2005 marriage amendment to concede defeat. The court’s move may only assure a 2015 legislative do-over of this year’s failed “religious freedom” bill – which proponents saw as safeguarding those who don’t want to accommodate same-sex couples for religious reasons but ended up drawing national attention to Kansas for seeking to condone discrimination against gays and lesbians. But it surely also puts the long-term legal success of such efforts in further doubt.

As it was, a Public Policy Polling survey earlier this year found 59 percent opposition for the House-passed “refusal-to-serve” bill and 44 percent support for legalizing same-sex marriage – a 5-point jump in a year. Nationwide, polls show opposition to same-sex marriage has dropped from 54 to 39 percent in just five years, with support at 70 percent among 18- to 32-year-olds.

Even many Republicans are moderating their view on same-sex marriages, in part because it seems like time but also good politics for a party that talks so much of rights and freedom.

The increasing tolerance was expressed earlier this year by a group of 20 Republicans, led by former Kansas Sen. Nancy Kassebaum Baker and former Wyoming Sen. Alan Simpson, in a friend of the court brief in the Utah and Oklahoma cases.

They wrote, “religious individuals and organizations should, and will, make their own decisions about whether and how to participate in marriages between people of the same sex” and the “government must not intervene in those decisions.” But, they also said, “it is precisely because marriage is so important in producing and protecting strong and stable family structures that (we) do not agree that the government can rationally promote the goal of strengthening families by denying civil marriage to same-sex couples.”

And the more gay and lesbian couples who wed legally, presumably including even in Kansas, the harder it will become to imagine the high court deciding at some later date that their marriages are null and void.

For the editorial board, Rhonda Holman

This story was originally published October 6, 2014 at 7:06 PM with the headline "Same-sex marriage ban may soon fall."