U.S. Supreme Court ponders Kansas’ same-sex marriage ban

Kail Marie and Michelle Brown waited patiently Tuesday to learn whether the U.S. Supreme Court would clear the way for same-sex marriage in Kansas.

The wait will last until at least Wednesday as the high court decides whether it should lift a stay of a lower-court ruling allowing same-sex marriage in the state.

The Lecompton women weren’t in a rush to marry even if the high court agreed to allow gay marriages to proceed.

“We’ve been together 21 years. We’re used to waiting,” Marie said. “We never thought we would see this in our lifetime.”

Last week, U.S. District Judge Daniel Crabtree issued a preliminary injunction barring Kansas from enforcing its ban on gay and lesbian couples getting married.

Crabtree’s ruling was set to take effect at 5 p.m. Tuesday. But Supreme Court Justice Sonia Sotomayor temporarily halted the order Monday night so the state could make its case for keeping the same-sex marriage ban in place.

Lawyers for Kansas Attorney General Derek Schmidt and the American Civil Liberties Union filed their legal papers Tuesday afternoon. But there was no sign of a decision coming from the high court.

Schmidt argued that the lower federal courts should not be allowed to “disable” a state’s constitutional ban on same-sex marriage. In 2005, the ban was approved in a statewide referendum by 70 percent of Kansas voters.

The state and its people will “suffer irreparable harm to their sovereign immunity” if the lower-court order is not blocked, Schmidt argued.

ACLU attorneys argued that legal protections provided married couples are critical, especially for life-changing events such as a loved one getting sick or dying.

Keeping the ban in place “would be guaranteed to impose severe irreparable harm on same-sex couples in Kansas and on their children,” ACLU lawyers told the court.

Marie and Brown, along with another couple from Sedgwick County, are plaintiffs in the lawsuit challenging the state’s ban.

Brown, a lawyer, points out that even if the Supreme Court stops gay marriage in Kansas for now, the state still has an appeal filed with the 10th Circuit U.S. Court of Appeals. While a three-judge panel of that court has already decided in favor of gay marriage, the state wants the full court to hear its appeal.

“We’re not going to be able to get married until this is all said and done and all the appeals are satisfied,” Brown said.

University of Richmond law professor Carl Tobias thinks the Supreme Court will side against the ban.

The Supreme Court already let stand a 10th Circuit Court ruling striking down gay marriage bans in Oklahoma and Utah. He is doubtful that the court will reverse course from an Oct. 6 ruling that upheld the appeals court’s decision.

“It may be a long shot,” Tobias said of the state’s appeal. “The attorney general is wasting a lot of time, money and effort, and I don’t think it’s going to yield anything.”

This story was originally published November 11, 2014 at 7:11 PM with the headline "U.S. Supreme Court ponders Kansas’ same-sex marriage ban."