Johnson County judge’s order allowing same-sex marriages won’t settle the issue in Kansas

Amy Norris and Edwina Dailey had mapped out a trip to Iowa, where same-sex marriage is legal. There they would get hitched, return to Kansas and hope it would be legal here soon.

The trip was scratched. They will marry here instead.

A Johnson County judge directed the district court clerk this week to issue marriage licenses to same-sex couples without fear of being prosecuted under Kansas law.

“I’ve just been in nonstop tears,” Norris said outside the court clerk’s window after plopping down $85.50 for the wedding license. “It is such a big deal that our state looks at us as a legal couple, a real couple.”

Well, sort of. The status of same-sex marriage in Kansas shifted quickly this week, but it appears still unsettled.

The U.S. Supreme Court opened the door for couples such as Norris and Dailey to get married in Kansas after it let stand lower court rulings from five states that found same-sex marriage bans unconstitutional.

That decision led Chief District Judge Kevin Moriarty of Johnson County to issue an order Wednesday allowing marriage licenses to be issued to same-sex couples. So far, Johnson County is the only one of 105 Kansas counties doing so.

By late Thursday afternoon, the county received 42 applications for same-sex couples seeking licenses, with almost half of them received before 11 a.m. The state’s first same-sex wedding license could be issued as early as Friday.

The change might be short-lived, depending on how the legal drama plays out in the days ahead.

Couples might be wed in Johnson County, but questions persist if such marriages would be recognized elsewhere in the state — for now.

Some legal critics don’t believe the judge had the authority to permit same-sex wedding licenses without ruling on a specific challenge to the state’s gay marriage ban.

“You can go ahead and get a marriage license,” cautioned University of Kansas law professor Richard Levy. “But if you do that, you may run the risk that the order under which you got your license is declared invalid.”

Judges in other areas such as nearby Douglas and Wyandotte counties have said that same-sex marriage licenses will not be issued until a court overturns the state’s ban on them.

“The federal courts have not ruled on Kansas law, therefore the prohibition of same-sex marriage remains intact in Kansas,” Wyandotte County Chief Judge R. Wayne Lampson wrote in an order issued Thursday.

There was no indication how Kansas Attorney General Derek Schmidt would respond to the order issued in Johnson County. His office didn’t return repeated messages for comment Thursday.

Kansas has banned same-sex marriages since 2005, when voters overwhelmingly passed a constitutional amendment banning gay marriage. There is also a law on the books in Kansas allowing only opposite-sex marriages.

But courts have gradually tossed out similar laws across the country, reaching a crescendo this week with the U.S. Supreme Court’s decision.

One of those rulings came out of the 10th U.S. Circuit Court of Appeals, which has jurisdiction over Kansas and five other states. Only Oklahoma and Utah had pending lawsuits directly addressed by the the appeals court.

Kansas was not a party in that case. Yet a federal judge would be bound by the same appeals court decision unless the state could show its same-sex marriage ban was markedly different from those of the other states.

Some legal experts believe that Kansas’ law will ultimately be struck down as unconstitutional. But they question whether Moriarty might have acted too soon in anticipation of how he thinks the federal courts will ultimately rule.

“The only way the Kansas law gets overturned is if there is a case or controversy that comes before the court,” Washburn University law professor Jeff Jackson said. “As a judge, you can’t unilaterally overturn Kansas law based on what you think is going to happen.”

Efforts to reach Moriarty for comment Thursday were unsuccessful. He told The Star on Wednesday that the order was his alone. He acknowledged that other Johnson County judges didn’t agree with his decision.

The case challenging the state’s same-sex marriage ban could come as early as next week. The American Civil Liberties Union of Kansas has already lined up three or four couples as plaintiffs who have have been denied marriage licenses, said the organization’s legal director, Doug Bonney.

Bonney praised Moriarty’s marriage license order but pointed out that so far no other court in the state has followed his lead.

“People will be able to get married,” Bonney said, “but the next step is go and try to … file joint tax returns and see what the state says.”

This story was originally published October 9, 2014 at 10:30 PM with the headline "Johnson County judge’s order allowing same-sex marriages won’t settle the issue in Kansas."