Same-sex couples will have to hold out a little longer before learning whether they can marry in Kansas.
A federal judge on Friday put off making an immediate decision after hearing oral arguments in a lawsuit challenging the state’s ban on same-sex marriage.
The lawsuit was brought by the American Civil Liberties Union on behalf of two lesbian couples, one from Wichita and the other from Lecompton.
Some legal experts think the judge will likely be bound by a federal appeals court ruling that struck down gay marriage bans in Oklahoma and Utah. The federal appeals court decision was later allowed to stand by the U.S. Supreme Court.
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“There is no reason why we shouldn’t follow the law,” said Kerry Wilks, one of the plaintiffs in the case. “We are people who want to be married. We want the same protections of every other Kansan.”
Nevertheless, a state attorney argued Friday that the federal court should not interfere in a related case pending before the Kansas Supreme Court.
In that case, the state’s high court was asked to set aside a Johnson County judge’s order directing a court clerk to issue marriage licenses to gay and lesbian couples. The judge’s order was temporarily halted. A hearing on that case is set for Thursday.
Judge Kevin Moriarty said he was following the precedent set by the federal court, but critics said he acted prematurely because he had no actual case before him.
Assistant Kansas Attorney General Steve Fabert argued that the federal court should let the Moriarty case play out before deciding on the constitutional merits of the Kansas same-sex wedding ban raised in the ACLU lawsuit.
“This court has no jurisdiction,” Fabert told Judge Daniel Crabtree. “The Kansas Supreme Court has to be allowed to go forward.”
Fabert also raised other questions, including whether it was appropriate for the challenge to be lodged against the state health secretary, who doesn’t enforce the ban on same-sex marriage.
The lawsuit, he said, needed to be brought against the state’s judges and the other executive branch agencies enforcing the ban.
Kansas voters passed a constitutional amendment banning same-sex marriage in 2005 with about 70 percent of the vote.
The future of the ban was thrown into doubt when the U.S. Supreme Court upheld decisions from two appellate circuits that struck down gay marriage bans, including the circuit that covers Kansas and has binding precedent for the state.
Since the Supreme Court’s decision, judges have knocked down similar marriage bans in North Carolina, Arizona, Alaska and Idaho. Currently, there are 32 states that allow same-sex marriage.
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