It’s clearly a matter of when and not whether same-sex couples will have the right to marry in Kansas, now that a federal judge has ruled the state’s ban on such marriages violates the 14th Amendment to the Constitution.
Judge Daniel Crabtree’s Tuesday order for county clerks to begin issuing marriage licenses to same-sex couples was accompanied by a stay until Nov. 11, and Kansas Attorney General Derek Schmidt announced that he will appeal and ask for consideration by the full 10th U.S. Circuit Court of Appeals.
But because a three-judge panel of the Denver-based court already has ruled the bans in Utah and Oklahoma to be unconstitutional, and the U.S. Supreme Court declined to hear those cases, it’s all but certain that Kansas’ ban will meet the same fate and that gay and lesbian couples and heterosexual couples in the state soon will have the same right to marry.
If that outcome is at odds with Kansas voters’ passage of a constitutional ban nearly 10 years ago, it’s very much in keeping with the state’s much-longer tradition of extending and safeguarding civil rights and striving for equality.
Kansas played leading roles in the fights to abolish slavery, end state-sponsored segregation of public schools, and guarantee voting and other rights for women. In 1977, Wichita briefly had on its books one of the few ordinances in the nation to protect gays and lesbians. In 1978 a Kansan, Gilbert Baker, even designed the rainbow flag that now stands for the diversity of the lesbian, gay, bisexual and transgender community.
Tolerance and fairness also prevailed early this year, as Kansans spoke out against and stopped the House-passed bill to allow private and public employees to deny service to same-sex couples based on religious grounds (though in most of Kansas, gay and lesbian individuals or couples already can be lawfully fired, evicted or refused service because of their sexual orientation). An October poll found 60 percent of Kansans open to legalizing at least civil unions for same-sex couples, and 70 percent believing that when same-sex marriage becomes legal the impact on their lives will be either positive or nil.
The Kansas Supreme Court is considering a different case – this one over a Johnson County District Court judge’s order last month that a clerk begin issuing marriage licenses to same-sex couples. More court challenges probably are likely, funded by more of Kansans’ tax dollars.
But each judge’s ruling makes it less likely that Kansas can hold out as some sort of oasis of lawful discrimination against gay and lesbian couples who want to wed. That’s good news for the estimated 4,000 cohabiting same-sex couples in Kansas, but also for other Kansans increasingly regretful that their state constitution was used to deny a fundamental right.
For the editorial board, Rhonda Holman