Constitutional challenge brought against Kansas gay marriage ban

Angela and Kelli, the first same-sex couple married in Kansas, celebrated their union with a wedding cake.
Angela and Kelli, the first same-sex couple married in Kansas, celebrated their union with a wedding cake. The Kansas City Star

The constitutional assault on same-sex marriage bans zeroed in on Kansas on Friday with a new legal challenge that could clear the way for gay marriage in the state.

Two lesbian couples — one from Lecompton and another from Wichita — challenged the Kansas ban in federal court Friday afternoon. Their lawsuit sets up a legal battle that scholars believe spells doom for the ban, maybe as early as next week when it could be heard in court.

Filed at the close of business Friday, the lawsuit capped a topsy-turvy day that began with the state’s first same-sex marriage in Johnson County.

It ended when the state Supreme Court temporarily stopped the county from issuing any more licenses to gay couples.

The lawsuit by the two couples comes just days after the U.S. Supreme Court opened the door for same-sex couples to wed in Kansas when it let stand lower court rulings that found bans on their marriages unconstitutional.

While the court did not rule on the Kansas law, it kept in place an appeals court ruling that would be binding if a challenge were brought against the state law.

Legal experts believe Kansas won’t prevail in the lawsuit unless it can show how its ban differs from those in other states where laws have already been struck down.

“The attorney general can save the state money, time and energy by just conceding,” said University of Richmond law professor Carl Tobias, who has tracked same-sex marriage fights nationally.

Tobias pointed out that a judge on Friday followed a federal appeals court ruling from a different part of the country to strike down North Carolina’s same-sex marriage ban approved by voters in 2012.

Likewise, legal experts believe a federal judge in Kansas will be obligated to follow a ruling from the 10th Circuit U.S. Court of Appeals striking down same-sex marriage bans in Oklahoma and Utah.

“There is little chance that a court would conclude that the Kansas constitutional provision and statutes are valid even though the Oklahoma and Utah ones were not,” said University of Kansas law professor Richard Levy.

Republican Gov. Sam Brownback has called for a vigorous defense of the state constitutional amendment banning same-sex marriage and the Kansas statute limiting marriages to straight couples. The amendment was approved by 70 percent of the voters in 2005.

“I support that, that marriage is union of a man and a woman, and we will work to defend what the people have expressed and voted at the ballot box to put in their constitution,” Brownback said.

Kansas Attorney General Derek Schmidt could not be reached late Friday for comment on the lawsuit, which was brought by the American Civil Liberties Union of Kansas on behalf of the two couples.

Schmidt spent Friday in state court trying to stop Johnson County from issuing marriage licenses to same-sex couples.

He persuaded the state’s high court to temporarily delay Johnson County Chief Judge Kevin Moriarty’s order directing the court clerk to issue marriage licenses for same-sex couples. The county, however, can continue to accept the applications.

However, the court didn’t set a hearing on the Johnson County case until Nov. 6, well after the ACLU expects to have a ruling on the much larger question of whether the state’s gay marriage ban is constitutional.

It was unclear how the Kansas Supreme Court’s ruling would immediately affect two Olathe women married Friday morning at the Johnson County Courthouse.

Moriarty issued his order earlier this week, reasoning the state had to comply with a standing federal appeals court decision that found same-sex marriage bans unconstitutional.

Moriarty’s ruling made Johnson County the only place in Kansas where same-sex couples could get marriage licenses. As of Friday, 62 same-sex couples had applied for marriage licenses in the county.

But the attorney general asked the state Supreme Court to stop the county from issuing marriage licenses to same-sex couples, arguing the judge acted prematurely since the Kansas law had not yet been challenged with a lawsuit that would give a judge the power to act.

Moriarty, the attorney general said, abandoned “all pretense of objectivity” and rushed “to declare a victor in a fight that has not yet commenced.”

The dispute between Schmidt and Moriarty might be irrelevant if the ACLU prevails in getting the entire same-sex marriage ban thrown out.

“Our lawsuit tees up the fundamental constitutional question of whether Kansas’ prohibition on same-sex marriage is unconstitutional,” said Doug Bonney, the state ACLU’s legal director.

Amanda Goodwin and Jena Knight were among those applying for a marriage license Friday in Johnson County. Regardless of whether Johnson County can issue marriage licenses, they were confident they’ll ultimately be legally married.

“These walls have been coming down for a long time,” Goodwin said. “It’s going to happen eventually.”

For Kelli and Angela, the walls did come down Friday when they received a marriage license shortly after 8 a.m.

Their ceremony took less than five minutes with a short exchange of vows and rings followed by an embrace and kiss. By 8:23 a.m., they were married.

They said they purposefully did not go to another state because they wanted to be married in Kansas.

“We’ve just been waiting for Kansas to get on board with marriage equality,” Angela said after the ceremony held just outside the court clerk’s office. She and her spouse, Kelli, asked that their last names not be used.

“This is our home state. This is where we live. This is where we pay our taxes. This is where we raise our children.”

More importantly, Kelli said the wedding established the couple among Kansas families who are already recognized by state law.

Angela, 36, and Kelli, 29, were joined at the ceremony by their children, Kelli’s mother and a family friend. The ceremony was conducted by a pastor from the Shawnee Mission Unitarian Universalist Church in Lenexa.

“We are hoping that this is a good opportunity for everyone in Kansas to see that we are a normal, regular family,” Kelli said. “We are excited that other families will be recognized as regular families now.”

To reach Brad Cooper, call 816-234-7724 or send email to bcooper@kcstar.com.

Court rulings elsewhere

▪ The U.S. Supreme Court issued an order Friday that appears to have cleared the way for gay marriages in Idaho. State officials were trying to determine when weddings might take place. At least one county clerk began issuing same-sex marriage licenses.

▪ A federal judge in North Carolina struck down the state’s gay marriage ban, opening the way for the first same-sex weddings in the state to begin immediately. The ruling follows Monday’s announcement by the U.S. Supreme Court that it would not hear any appeals of cases before the 4th Circuit Court, which has jurisdiction over North Carolina.

The Associated Press