Same-sex couples might be able to marry in Kansas before the end of the year, but a federal judge did not take any immediate action on the matter after a hearing Friday.
Judge Daniel Crabtree said he would respond to a motion to compel courts to issue marriage licenses to same-sex couples, who otherwise meet the state’s requirements to marry, with a written order and promised to do so promptly, but did not give a definite timeline.
Assistant Attorney General Steve Fabert said that if Crabtree issued such an order, the state planned to appeal. He also requested that Crabtree stay any such order
“I had a pretty good idea coming in that I might not be the last judge to hear this case,” said Crabtree, who was nominated to his post on the U.S. District Court by President Obama in 2013 and confirmed by the U.S. Senate this past April.
Following the U.S. Supreme Court’s refusal earlier this month to review a ruling in the 10th Circuit Court of Appeals, which overturned bans on same-sex marriage in Oklahoma and Utah, Kansas’ ban is on shaky ground. Kansas is among the states covered by the 10th Circuit.
As of this week, 32 states allow same-sex marriage with a slew of state bans falling in federal courts in the wake of the U.S. Supreme Court’s ruling against the Defense of Marriage Act in 2013.
A Johnson County judge issued an order to grant same-sex couples marriage licenses two weeks ago. The Kansas Supreme Court put a temporary stay on the order and will hear the case on Nov. 6, two days after the general election.
LGBT rights activists hoped the federal court would act sooner.
“I think we’re being used for political fodder,” said Kerry Wilks of Wichita, who along her partner is one of four women challenging the ban. “This should not be put off until after the election.”
Donna DiTrani, who said she has been in a relationship with Wilks for five years, said that she expected this outcome and the couple would take things one step at a time. Wilks said she was a bit more impatient.
“Look me in my eyes. Look at my human face. We want the same protection,” said Wilks, a Spanish professor and associate dean at Wichita State University. “What would happen if, God forbid, we were in accident on the way home?
“What would they say, ‘Sorry you couldn’t get married sooner?’ One minute is too long to wait.”
Doug Bonney, the couple’s attorney and chief counsel for the ACLU of Kansas, said that the state’s ban robs same-sex couples of many rights straight people take for granted, such as the right to visit a spouse in the hospital.
Fabert tried to persuade Crabtree that the federal court should defer to the state Supreme Court. He cited a 1969 case in which the U.S. Supreme Court ruled that a federal district court could not enforce an injunction in a dispute between a railroad company and a labor union while the matter was pending before a Florida state court.
“The Kansas Supreme Court has to be allowed to go forward,” Fabert said, arguing that the federal court lacked jurisdiction. “I would not be surprised if the Kansas Supreme Court has a decision within a day or two (after oral arguments).”
Crabtree did not appear particularly swayed by his argument.
“This is not a labor dispute,” he said. He pointed out that the 10th Circuit had already found that same-sex couples have a “fundamental constitutional right” to marry.
Fabert argued that Kansas differed from Oklahoma and Utah because it has two paths to marriage, the first being through licenses and the other being through common law.
Bonney called this argument “distracting noise.”
“These plaintiffs don’t want to be married through common law,” Bonney said. “They want to be married through the licensure system. …That’s what’s being denied to them because of the state’s unconstitutional ban.”
The three candidates for governor have had strikingly different reactions to the controversy. Libertarian Keen Umbehr is the only candidate to explicitly voice support for allowing same-sex couples to marry.
Democrat Paul Davis has repeatedly said that the courts will resolve the issue, but he has declined to say whether he favors allowing same-sex couples to marry.
“There’s nothing that either Gov. Brownback or I can do to change this issue,” Davis said after voting Friday morning in Lawrence. “I mean, the courts are going to decide this issue.”
His hesitance to publicly take a position has caused some LGBT-rights activists to question his commitment to those issues.
“I’ve got a long history of supporting LGBT issues,” Davis said in response. “Just this past session I introduced a bill with (Rep.) Louis Ruiz that would extend the anti-discrimination law to the gay and lesbian community. … But we need to focus on things that governors can really impact.”
Gov. Sam Brownback has been outspoken in his opposition to same-sex marriage. He spoke at a rally in Wichita earlier this month opposing same-sex marriage.
“The state of Kansas has spoken. People of Kansas have voted and put it in their constitution. The attorney general’s defending it. I’m defending it,” Brownback said in Topeka this week. “I think that’s where more Kansans are. Kansans want you to stand up for the constitution.”
Brownback pushed back against the notion that same-sex marriage is inevitable, arguing that the U.S. Supreme Court will likely revisit the issue in the near future.
“You don’t know how that’s going to go,” he said. “Because you probably have four judges on either side and one judge that’s going to make the call.
“This is a big, big issue for the country.”