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ACLU files brief with Supreme Court in Kansas same-sex marriage case

Supreme Court Justice Sonia Sotomayor directed the American Civil Liberties Union to respond to a request from Kansas to maintain its ban on same-sex marriage. The ACLU filed its 22-page response Tuesday afternoon.
Supreme Court Justice Sonia Sotomayor directed the American Civil Liberties Union to respond to a request from Kansas to maintain its ban on same-sex marriage. The ACLU filed its 22-page response Tuesday afternoon. Associated Press

The American Civil Liberties Union has filed a brief with the U.S. Supreme Court on behalf of two lesbian couples seeking to overturn the state’s ban on same-sex marriage.

The brief, which argues that delaying gay marriages in Kansas will harm same-sex couples and their families, was filed in response to a request by the state of Kansas to keep the ban in place.

Gay-rights advocates in Kansas weren’t sure when or where gay couples would be able to get marriage licenses because of the tangle of litigation over the issue. Kansas Attorney General Derek Schmidt stated that the complex legal situation is an argument for keeping the ban in place for now.

Both sides now await action from U.S. Supreme Court Justice Sonia Sotomayor, which could lead to an indefinite stay or give same-sex couples permission to begin marrying this week.

The ACLU last month had filed a lawsuit on behalf of two lesbian couples who were denied marriage licenses in Douglas County in northeast Kansas and in Sedgwick County.

A federal district court judge ruled last week in that lawsuit that the state’s ban violated the U.S. Constitution’s 14th Amendment, which guarantees equal protection under the law. It ordered Kansas courts to begin allowing county clerks to issue licenses to same-sex couples as of 5 p.m. Nov. 11, a day when courts are closed for Veterans Day.

Schmidt filed a petition with Sotomayor asking her to to impose a stay on the federal judge’s order, which would have allowed same-sex couples to obtain marriage licenses Wednesday, when courts and county clerk offices reopen, until the state has an opportunity to appeal the ruling.

Schmidt argued that the state has constitutional authority over the entire field of family relations, including deciding who is eligible for a marriage license.

Sotomayor on Monday did put the judge’s order on hold but asked the ACLU to respond by 4 p.m. Tuesday, which it did.

“While this case remains pending in this Court, children will be born, people will die, and loved ones will fall unexpectedly ill,” the ACLU attorneys said in their response. “The substantive legal protections afforded by marriage can be critical, if not life-changing, during such major life events and personal crises.”

The ACLU said that the Supreme Court denied a nearly identical request last month to stay an order when Alaska’s same-sex marriage ban was overturned in a district court.

Kansas has never recognized same-sex marriage. In 2005, voters passed a constitutional amendment banning gay marriage.

The federal 10th Circuit Court of Appeals, which includes Kansas, has ruled that state bans on same-sex marriage in Oklahoma and Utah are unconstitutional. But the 6th Circuit Court of Appeals upheld bans in Kentucky, Michigan, Ohio and Tennessee last week.

The circuit split means the high court will likely have to rule on the issue for the entire nation, a fact Schmidt says justifies a stay. The ACLU disagrees.

Contributing: Associated Press

Reach Bryan Lowry at 785-296-3006 or blowry@wichitaeagle.com. Follow him on Twitter: @BryanLowry3.

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