On Monday, the U.S. Supreme Court let stand a lower court ruling that said prohibitions on same-sex marriage violated the U.S. Constitution.
Two days later, a Johnson County judge directed the district court clerk to issue marriage licenses to same-sex couples without fear of being prosecuted under Kansas law. His ruling outraged some and delighted others.
“It feels like we are part of history,” said Angela Schaefer, who rushed to the Johnson County Courthouse in Olathe on Wednesday afternoon with her partner, Jennifer Schaefer, to get a marriage license application. “That is a really cool feeling.”
Chief District Judge Kevin Moriarty of Johnson County wrote in his Wednesday afternoon order that “administration of justice should be free of any ambiguity or inconsistency in the administration of justice, including the issuance of marriage licenses.”
Because Kansas does not have a residency requirement for marriage licenses, that means same-sex couples from outside Johnson County can get a license there to marry, said Tom Witt, the executive director of the Kansas Equality Coalition.
The ruling makes Johnson County the first place in the Kansas City area where same-sex couples can legally wed. Before Moriarty’s ruling, the closest place was Iowa.
“We are ecstatic, and it is about time,” said Witt, whose group advocates for gay rights, among other things. “We look forward to this ruling being applied to the entire state.”
Kansas is under the jurisdiction of the 10th U.S. Circuit Court of Appeals. Earlier this year, a federal judge in Utah in that district ruled that state gay marriage bans violate the U.S. Constitution. The 10th Circuit upheld that decision in June.
When the U.S. Supreme Court refused this week to hear appeals of that ruling, the justices essentially affirmed it for Kansas and other states in the district.
Both Kansas law and the state constitution define a legal marriage as being between members of the opposite sex. Under state law, a clerk who issues a license to “unqualified” people could be found guilty of a misdemeanor.
In his order Wednesday, Moriarty said that state laws, whether statutory or constitutional, must be considered void if they contradict federal law. And, the judge said, Kansas is now bound by the 10th Circuit decision.
Moriarty prepared the order after a same-sex couple came to the Johnson County Courthouse in Olathe on Tuesday and applied for a marriage license. There is a three-day waiting period for licenses, so one was not issued. The judge’s order now authorizes the clerk to issue that license.
Moriarty said in an interview that the order was his alone. Some other judges in Johnson County, he said, did not agree with him. He also emphasized that it applies only to Johnson County and that the chief judges in the state’s other judicial districts would have to set their own rules.
While the judge’s ruling Wednesday creates the first place in the Kansas City area for same-sex couples to marry, it at least momentarily creates a patchwork of marriage rules across Kansas.
In other Kansas counties that have been tested so far, judges have said this week that it’s illegal to issue licenses for same-sex marriages — in stark contradiction to the latest ruling in Johnson County.
Reno County Chief Judge Patricia Macke Dick denied at least one couple a license this week, later saying she had no choice but to deny the license because Kansas’ same-sex marriage ban, specifically, had not been overturned.
The only related lawsuit now in Kansas courts is one filed by two couples who married in other states and sued Kansas over tax treatment. Their case is being heard next month.
Meanwhile, Attorney General Derek Schmidt and Gov. Sam Brownback, both Republicans, have expressed dismay over any court rulings that would trump the state’s laws and constitution specifying that only opposite-sex couples are allowed to marry in Kansas.
Brownback’s office issued a statement late Wednesday saying the Johnson County ruling didn’t change his outlook.
“An overwhelming majority of Kansas voters amended the constitution to include a definition of marriage as one man and one woman,” the governor’s statement read. “Activist judges should not overrule the people of Kansas.”
Earlier this week, Schmidt noted that no court had squarely decided whether the Kansas constitution’s prohibition of same-sex marriage is invalid and that the state will deal with any litigation when it comes.
The American Civil Liberties Union on Tuesday reached out to lawyers to join its federal challenge seeking an immediate court order blocking the state’s same-sex marriage ban, given the precedent in the 10th Circuit. It could be filed as soon as next week, said Doug Bonney, legal director of the ACLU of Kansas and Western Missouri.
Nationally, the ACLU plans to fight state bans from circuit court to circuit court, said staff attorney Joshua Black.
In Olathe on Wednesday, the Schaefers, who have been together for nine years and have a 9-month-old son, said walking out with their paperwork was “surreal.”
“We both are a little bit skeptical,” Angela Schaefer said. “I don’t think this will be the last we will hear from the people who disagree with the judge.”