The U.S. Supreme Court ruled Wednesday that Kansas can’t block gay and lesbian couples from getting married.
State officials battling to keep the same-sex marriage ban vowed to fight on. And they raised the idea that the court’s decision might apply only to Douglas and Sedgwick counties, where plaintiffs challenging the ban pressed their cases.
The high court, without explanation, refused to further delay a federal judge’s ruling allowing same-sex marriages as the state battles the issue in court.
Justices Antonin Scalia and Clarence Thomas would have granted Kansas’ request to delay the order. Their positions weren’t explained.
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“This is a great day for same-sex couples who want to be married in Kansas,” said Doug Bonney, legal director of the American Civil Liberties Union of Kansas. “They are now on equal footing with everybody else.”
ACLU lawyers challenged the Kansas same-sex marriage ban on behalf of two lesbian couples, one from Douglas County and one from Sedgwick County.
“It’s kind of overwhelming,” said Michelle Brown, a plaintiff from Lecompton who has been with her partner, Kail Marie, for 21 years. “We are absolutely thrilled. We didn’t expect this.”
However, there is an immediate caveat to the U.S. Supreme Court ruling.
The Johnson County court clerk cannot issue marriage licenses to same-sex couples. The clerk had been ordered to do so by a local judge last month.
But that case playing out in state courts falls under an order from the Kansas Supreme Court and is still pending in Topeka. It wasn’t immediately clear Wednesday night how the federal case would influence that state case.
Meanwhile, Republican Gov. Sam Brownback vowed to defend state laws banning same-sex marriage, including a constitutional amendment passed in 2005 with 70 percent of the vote.
“I swore an oath to support the constitution of the state of Kansas,” Brownback said in a statement. “I will review this ruling with the attorney general and see how best we continue those efforts.”
Kansas Attorney General Derek Schmidt is appealing U.S. District Judge Daniel Crabtree’s preliminary decision barring Kansas from enforcing its ban. The U.S. Supreme Court’s decision Wednesday related to what would happen during the appeals of that federal case.
Schmidt took Crabtree’s decision to the 10th Circuit U.S. Court of Appeals. While a three-judge panel of that court has already decided in favor of same-sex marriage in other states, Kansas wants the full court to hear its appeal.
The U.S. Supreme Court already let stand a 10th Circuit Court ruling striking down same-sex marriage bans in Oklahoma and Utah. Legal scholars are highly skeptical that Schmidt will win the appeal.
Schmidt seemed to suggest in a statement that Wednesday’s U.S. Supreme Court ruling only applied to the two counties that denied licenses to the lesbian couples. He noted that the clerks in Sedgwick and Douglas counties were barred from enforcing the same-sex marriage ban.
“As of Wednesday evening, the court clerks in Douglas and Sedgwick counties are under a federal court order to begin issuing licenses,” a spokeswoman said in an email response to a reporter’s question.
The spokeswoman didn’t answer whether the court order applied to other Kansas counties that might refuse to give licenses to same-sex couples.
She suggested calling the chief judges from other judicial districts to answer that question and declined to comment further.
Bonney believes the federal court order applies across Kansas. He hoped that Schmidt wouldn’t turn the case into a county-by-county battle over marriage.
The Supreme Court’s decision is the latest in a series of legal actions that have played out since it let stand several appeals court decisions striking down same-sex marriage bans as unconstitutional.
Since the Supreme Court’s decision in early October, bans have fallen in North Carolina, Arizona, Alaska and Wyoming.
Just last week, a federal judge in Kansas City found that Missouri’s law banning same-sex marriage violated the U.S. Constitution. His order was not set to start until all appeals were resolved.
Kansas, meanwhile, was one of three states battling same-sex marriage in jurisdictions where federal appeals courts had struck those bans down.
A second of those states, South Carolina, lost in federal court Wednesday. A federal judge struck down South Carolina’s same-sex marriage ban but gave the state a week to appeal his decision. His order doesn’t start until Nov. 20.
Experts believe the marriage issue is inevitably headed back to the U.S. Supreme Court, especially since the federal appeals courts are divided on the matter after same-sex marriage bans were upheld in four states last week.
Joan Hollinger, a retired law professor from the University of California at Berkeley School of Law and an expert on family law, said she thinks the high court will eventually rule that marriage is a constitutional right for same-sex couples.
The Kansas decision, she said, further indicates that the Supreme Court isn’t going to change its mind on same-sex marriage after already agreeing to let it stand in so many states. The only justification for blocking same-sex marriage in Kansas, she said, would be if the court thought it would be struck down.
“I am not an optimist by nature,” she said, “but I must now say I think there’s no going back.”