Three scenarios for gay marriage in Kansas, depending on Supreme Court ruling

Same-sex couple Sonja, left, and Terra prepare for a mass marriage ceremony on the steps of the Historic Sedgwick County Courthouse in Wichita in 2014. (Nov.17, 2014)
Same-sex couple Sonja, left, and Terra prepare for a mass marriage ceremony on the steps of the Historic Sedgwick County Courthouse in Wichita in 2014. (Nov.17, 2014) File photo

The moment of truth for gay marriage in Kansas has arrived.

The Supreme Court is expected to issue a highly anticipated ruling on gay marriage as early as Thursday.

Law professors say the ruling could settle the legal issue of gay marriage nationwide or keep a patchwork of marriage laws across the country.

Gay marriage in Kansas has been in flux since the 10th Circuit Court of Appeals struck down Utah’s same-sex marriage ban in June 2014. That ruling applied to Kansas and overrode the Kansas Marriage Amendment, a ban on gay marriage passed by voters in 2005.

The Supreme Court denied the state’s request to stop counties from issuing licenses while the case was being appealed. Gay couples could begin tying the knot in Sedgwick County and several other counties in November.

As of Friday, 131 gay couples had received marriage licenses in Sedgwick County’s 18th District Court.

But gay couples can’t obtain a marriage license everywhere in Kansas.

Ten of the state’s 31 district courts do not issue marriage licenses to gay couples, said Thomas Witt, executive director of Equality Kansas, which supports gay rights.

Legal experts say this variation inside the state should end no matter what the Supreme Court decides.

Scenario 1: Wedding bells

Gay-rights supporters expect the Supreme Court to rule in favor of the plaintiffs in Obergefell v. Hodges.

The case concerns whether the 14th Amendment to the U.S. Constitution requires a state to license gay marriages or recognize legal gay marriages from other states.

The case went to the high court when a federal appeals court upheld laws against gay marriage in Michigan, Ohio, Kentucky and Tennessee.

If the court sides with gay-rights advocates, the effect would be fairly immediate in Kansas, said Bill Rich, a law professor at Washburn University.

“All of those current restrictions on same-sex marriages would become invalid,” Rich said.

Same-sex couples would be able to obtain marriage licenses in all 105 counties. Kansas also would have to recognize same-sex marriage licenses from other states.

The Kansas Marriage Amendment would become invalid, but it would remain in the state constitution unless removed by the Legislature.

“The Legislature can leave it on the books, and they have done so with some laws in the past,” Rich said.

State policies, such as Division of Vehicles offices denying name changes on driver’s licenses to gay couples, would have to fall in line after a pro-gay marriage ruling, Rich said.

“That should quickly change without the need for litigation,” he said.

Officials that do resist the mandate from the high court would likely be sued.

“There is always the possibility of pockets of resistance,” Rich said. “The response to resistance would end up being litigation.”

Scenario 2: ‘Middle ground’

The Supreme Court could hand gay-rights advocates a stunning defeat by upholding voter-approved bans on gay marriage.

However, the question of recognizing out-of-state gay marriages still looms large.

“If same-sex marriage bans are not ruled unconstitutional, the constitutional question of whether a state like Kansas would have to recognize marriages from other states would still have to be resolved,” said Richard Levy, a University of Kansas law professor.

The court could allow gay marriage bans but tell states that don’t issue gay marriage licenses to recognize valid licenses from other states.

Rich said that type of ruling would be a “middle ground” between a 50-state legalization of gay marriage and keeping gay marriage bans intact.

“Many people go out of state to get married, and states routinely recognize those,” Levy said.

That would apply to both heterosexual and gay couples under this type of ruling.

Scenario 3: Illegal again

The high court could also stop momentum for the nationwide legalization of gay marriage dead in its tracks.

If the Supreme Court rules that states do not have to issue gay marriage licenses or recognize those from out of state, gay marriage would again be illegal in Kansas.

“Provisions like the one in Kansas would be valid,” said Levy, referring to the Kansas Marriage Amendment.

Sedgwick County would no longer be able to issue marriage licenses to gay couples.

Gay couples that got legally married in Kansas in the past seven months would have an uncertain status, Rich said.

“There would be chaos,” he said.

Couples who won court battles for the right to marry would also be in a legal gray area.

“They won a final judgment,” Rich said. “For the state to say ‘we can go back and take it away,’ that would be contrary to what normally happens.”

Reach Daniel Salazar at 316-269-6791 or dsalazar@wichitaeagle.com. Follow him on Twitter: @imdanielsalazar.

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