Why Kansas is set to become focus of same-sex marriage fight

A federal judge is being asked to order objecting Kansas officials to start issuing marriage licenses to same-sex couples as the state seeks to defend a constitutional amendment limiting marriage to a union of one man and one woman.

United States District Judge Daniel Crabtree has scheduled arguments in his Kansas City courtroom for 10 a.m. Friday morning. [Update: The hearing scheduled for Friday was canceled. The judge requested additional briefing to be filed by Monday. No new hearing date has been set.]

Lawyers with the American Civil Liberties Union are asking the judge to enforce federal appeals court holdings that same-sex couples have a right to marry protected by the US Constitution. They say efforts to defend the marriage ban amount to “a futile exercise to delay the inevitable.”

Gov. Sam Brownback and US Sen. Pat Roberts, both Republican incumbents, are seeking to the use the gay marriage issue to rally conservative voters in the face of tight election contests.

It remains unclear whether such election-season campaign tactics will escalate into open and prolonged defiance of legal rulings by federal appeals court judges and the US Supreme Court.

In a brief to Judge Crabtree, a lawyer with the Kansas attorney general’s office argued that the Kansas Supreme Court had upheld the state’s same-sex marriage ban in a 2002 decision. He said that decision remains a controlling precedent throughout Kansas.

Assistant Attorney General Steve Fabert said the federal judge was “obligated to give full faith and credit” to the Kansas decision, unless and until it is reversed by the Supreme Court and/or the Denver-based 10th US Circuit Court of Appeals.

Although the 10th Circuit did not specifically address the Kansas high court ruling, its decisions invalidating same-sex marriage bans in Utah and Oklahoma establish relevant legal precedents that apply to Kansas.

Those precedents became binding throughout the 10th Circuit after the US Supreme Court on Oct. 6 declined to review the Utah and Oklahoma cases.

There are six states in the 10th Circuit. The appeals court struck down same-sex marriage bans in Utah and Oklahoma. The New Mexico Supreme Court invalidated that state’s ban in December. Citing the 10th Circuit’s precedent, judges in Colorado invalidated marriage restrictions there. And earlier this week, officials in Wyoming announced that they would not appeal a judge’s ruling striking down that state’s ban on same-sex marriages.

That leaves Kansas.

Despite the 10th Circuit decisions and the Supreme Court’s action, Kansas is one of the least likely states in the US to voluntarily embrace same-sex marriage.

In 2005, 70 percent of voters agreed to ban same-sex marriages and bar recognition of such marriages performed in other states.

Attitudes are shifting. A statewide poll conducted a week ago shows that 44 percent of likely voters in Kansas support same-sex marriage. The poll also showed that 49 percent of respondents continue to oppose it.

But it may not matter what people in Kansas think or believe about homosexuality. Federal judges – and, by default, the US Supreme Court – have determined that same-sex couples have a right under the US Constitution to marry in certain jurisdictions just as heterosexual couples do.

The federal court case is a bit more complicated because the Kansas Supreme Court has also entered the fray and has scheduled a hearing for Nov. 6.

At issue in that case is whether a state judge acted properly when he directed clerks in his own county (one of Kansas’s 105 counties) to begin issuing marriage licenses to same-sex couples.

Kansas Attorney General Derek Schmidt complained that the judge exceeded his authority by issuing an order without an actual case or controversy pending before him. He said the judge’s administrative order “de facto overruled the Kansas constitution, Kansas statutory law, and Kansas Supreme Court precedent.”

ACLU lawyers say the dispute between the attorney general and the state judge is a side issue. They are urging Crabtree not to wait for the Kansas Supreme Court, but to go ahead and issue a ruling.

Stephen Bonney of the ACLU Foundation of Kansas wrote in his brief to the court that four federal appeals courts based in San Francisco; Richmond, Va.; Chicago, and Denver had ruled that bans on same-sex marriage violate US constitutional protections and must be struck down.

“Every district court within those four circuits has rejected attempts by other states to argue that the circuit’s binding precedent is somehow distinguishable from the marriage bans in their own states,” he said. The US Supreme Court, he added, has also “rejected all requests by states for a stay of lower court injunctions.”

In Kansas’s brief to Crabtree, the state argues that it is not bound to follow the 10th Circuit’s lead.

“The Kansas Supreme Court is constitutionally obligated to follow precedents of the United States Supreme Court, but not decisions of a federal circuit court of appeals particularly when, as here, there is contrary binding precedent on point,” Mr. Fabert wrote.

“The United States Supreme Court has not abandoned principles of federalism, and has instead strengthened its support for state-by-state experimentation in addressing difficult social questions,” he said.

The ACLU case was brought on behalf of two lesbian couples who sought and were denied marriages licenses on Oct. 8 and 9.

The case is Marie v. Moser (14cv2518).