Gay and lesbian couples can get married in Kansas after the U.S. Supreme Court on Wednesday denied Attorney General Derek Schmidt’s request to halt a judge’s order that instructed counties to begin issuing marriage licenses to same-sex couples.
A federal district judge ruled last week that the state’s ban on same-sex marriage violated the 14th Amendment of the U.S. Constitution, which guarantees equal protection under the law, and ordered county court clerks to cease enforcing it.
The judge’s ruling was supposed to go into effect Tuesday, but Justice Sonia Sotomayor temporarily put it on hold while the U.S. Supreme Court reviewed the case after Schmidt filed a petition to stay the order while the state appeals the ruling.
Sotomayor referred the matter to the entire court, which rejected Schmidt’s petition Wednesday. Justices Antonin Scalia and Clarence Thomas were only the justices who would have granted the stay.
“That really resonates,” said Donna DiTrani, one of the women challenging the ban, who lives in Wichita with her partner of five years. “I mean that’s the Supreme Court. That’s the highest court in the country. That’s pretty impressive.
“I feel married already in my heart, but I just want that legal piece of paper,” DiTrani said.
She said her partner, Kerry Wilks, was on the phone shortly after the decision came down, the same day southern Kansas experienced an earthquake.
“I went, ‘Did you feel that earthquake today?’ And she said, ‘Yeah, it’s because everybody’s excited about the marriage,’ ” DiTrani said.
Couples that have already filed applications for marriage licenses can begin getting married Thursday, according to Tom Witt, the executive director of Equality Kansas, the state’s leading LGBT rights organization. Witt, who has been with his partner for 20 years, said that he would be making his wedding plans soon.
There is some confusion on whether the order applies to the whole state or just to Sedgwick and Douglas counties, which were named in the original suit. Schmidt’s brief statement Wednesday night suggested the order applied only to the two county clerk of courts named as defendants. Schmidt also noted that an appeal remained pending before the 10th Circuit of Court of Appeals.
“Our position is that it applies to the entire state,” said Doug Bonney, chief counsel of the ACLU of Kansas, who led the legal team which fought to overturn the ban.
Bonney said the Supreme Court’s decision to reject Schmidt’s petition for a stay should be sign to Kansas to give up the fight and accept same-sex marriage like other states.
“Wyoming threw in the towel. Arizona threw in the towel. Other states have thrown in the towel,” Bonney said. “Hopefully Kansas will preserve their taxpayers’ money and do that same, but that’s for them to decide.”
A federal judge struck down South Carolina’s ban on same-sex marriage Wednesday, but gave the state’s attorney general a delay until Nov. 20. Same-sex marriage is legal in 32 states.
Wilks said that she and DiTrani would probably wait to get married until the case has been fully resolved.
“We want to make sure that the case can still go forward because we want to make sure that everyone has the opportunity to enjoy their civil rights and enjoy the rights of marriage,” she said. “And we’re not going to do anything that’s going to delay that.”
Carl Tobias, a constitutional law professor at the University of Richmond, said he read the order as applying to the whole state. Tobias also said Schmidt’s appeal to the 10th Circuit Court of Appeals, which has already overturned bans in Utah and Oklahoma, is unlikely to succeed.
“I don’t see the path to victory,” he said. “They keep grasping at straws.”
Gov. Sam Brownback, who has been outspoken in his opposition to same-sex marriage, issued a short statement on the matter.
“As I have said previously, I swore an oath to support the Constitution of the State of Kansas. I will review this ruling with the Attorney General and see how best we continue those efforts,” Brownback said.
The state’s ban on same-sex marriage was passed as a constitutional amendment by voters in 2005.
Rep. Steve Brunk, R-Wichita, voiced his frustration with the Supreme Court’s decision to allow same-sex marriages to move forward.
“It’s inappropriate for the courts to be doing this,” Brunk said. “So now what you have is confusion. We have no definition of marriage.”
Brunk argued said that these matters should be left up to citizens and their representatives in the Legislature “rather than unelected courts.”
Wilks said the First Metropolitan Church in Wichita, to which she and DiTrani belong, is preparing to have mass wedding celebrations for the same-sex couples that have been waiting on the court’s order.
“Yes, I am very happy. Who wouldn’t be happy on a day like today?” Wilks said.
“I’m hoping that this is the start of a wave. Marriage equality is wonderful and it is one among many rights that we need to get in the United States so we do have a country where equality does exist for everyone.”
Contributing: Associated Press