The Kansas Supreme Court handed marriage equality supporters another victory Tuesday when it lifted a stay on a Johnson County judge’s order to allow same-sex couples to marry.
It did not weigh in on whether marriage licenses could be granted to same-sex couples statewide but said couples who got a license in a county that is issuing them could wed anywhere in the state.
The state court said it would look to federal court to determine whether a 2005 state constitutional amendment banning gay marriage was unconstitutional.
Kansas Attorney General Derek Schmidt had asked the state’s high court to keep counties from issuing marriage licenses to same-sex couples in the wake of a federal ruling that the state’s ban violates the 14th Amendment to the U.S. Constitution, which deals with citizens’ equal protection under the law.
The court rejected Schmidt’s contention that Judge Kevin Moriarty, chief judge of the Johnson County District Court, lacked the authority to issue an order allowing same-sex marriage. And it did not grant Schmidt’s motion to prevent same-sex marriage indefinitely while he appeals the federal case.
The federal case concerned Sedgwick and Douglas counties, and Schmidt had previously contended that the ruling overturning the ban applied to only those two counties. The case before the state Supreme Court concerned only Johnson County. So for some counties, the question will remain undecided unless district court judges take the matter into their own hands.
The attorney general’s office issued a statement Tuesday evening that said the office would continue to defend the state constitution.
“I hope the U.S. Supreme Court will quickly agree to take up the case from the U.S. Sixth Circuit Court of Appeals in Cincinnati to give finality and certainty to Kansas and the rest of the country on this matter,” Schmidt said in the statement.
The best chance conservatives have now is to pray for the U.S. Supreme Court to take up the issue and overrule the circuit court, said the Rev. Terry Fox, pastor of the Wichita-based Summit Church and a leading opponent of same-sex marriage.
Fox said he thinks the Supreme Court will have to do that to resolve conflicting rulings handed down by different federal appeals courts.
He said he believes the case could be won if it’s framed as an issue of states’ rights.
“It’s a pretty good argument that the state ought to be able to define marriage as the people want it defined,” Fox said. “We’ll get further with that versus just saying it’s based in morality or a biblical world view.”
Same-sex marriages already have begun in Sedgwick County. Fifteen same-sex couples exchanged vows on the steps of the Historic County Courthouse in downtown Wichita on Monday.
The court wrote in its opinion that “it is undeniable that marriage licenses are not only being issued to same-sex couples in Kansas, but also that under state law those licenses may be used by those couples to marry anywhere in the state.”
After Tuesday’s ruling, there are at least 19 counties where same-sex couples can get licenses, said Tom Witt, the executive director of Kansas Equality, the state’s leading group for lesbian, gay, bisexual and transgender rights.
Witt said the bigger hurdle for same-sex couples now is dealing with state agencies.
“State agencies are still not recognizing legal marriages legally performed in the state of Kansas,” Witt said. “I am getting e-mails from people, just today, who have tried go in and change their driver’s licenses now that they’ve been legally married, and they are being told by the employees … that even though it’s a valid Kansas marriage license, they’ve been told not to process the name changes.”
The Department of Health and Environment, the only agency named in the federal suit, has updated its forms to include the word “spouse” along with the words “husband” and “wife.”
Witt was unsure why other agencies were not also updating policies, but he said Schmidt could resolve the matter by dropping the fight against same-sex marriage, calling it a charade.
“This is theater,” Witt said. “This is Derek Schmidt’s grand theater where he’s playing politics with the lives and aspirations of gay and lesbian couples across the state by letting this drag out like this.”
Conservatives said they plan to push for new religious freedom laws when the state Legislature returns to the Capitol in January.
Fox said conservative pastors are concerned that advocates might try to use anti-discrimination laws to force clergy to marry same-sex couples, even if it violates their own beliefs.
In addition, he said he’s worried that advocates might bring action to try to stop pastors from condemning homosexuality from the pulpit, using hate-speech and nonprofit tax-exemption laws for leverage.
Witt said that was a baseless scare tactic.
“There has been no instance, in any state with marriage equality, of clergy being forced to officiate a same-sex wedding, and there has been no use of any ‘hate crime’ statute to interfere with anyone’s sermons,” Witt said in an e-mail to The Eagle.
Rep. Steve Brunk, R-Wichita, said he agrees there should be limits on what pastors and judges can be forced to do with respect to performing same-sex marriages.
He also said it is imperative for the U.S. Supreme Court to weigh in and settle the law across the country instead of relying on the current patchwork of circuit rulings.
“Right now, it’s just confusion,” he said, and Tuesday’s ruling by the state Supreme Court is “more of the same.”
Brunk said he thinks decisions involving social change such as same-sex marriage should be left to the people and handled through elected legislative representatives rather than the courts.