Government & Politics

Federal judge declares the Kansas same-sex marriage ban unconstitutional

Angela Schaefer, 31, and longtime partner Jennifer Schaefer, 28, got a application for a marriage license last month at the clerk’s office at the Johnson County Courthouse in Olathe.
Angela Schaefer, 31, and longtime partner Jennifer Schaefer, 28, got a application for a marriage license last month at the clerk’s office at the Johnson County Courthouse in Olathe. The Kansas City Star

Kansas same-sex couples took one step closer to the altar Tuesday when a federal judge issued a preliminary injunction barring the state from enforcing its ban on their marriages.

U.S. District Judge Daniel D. Crabtree wrote in his 38-page order that he was bound by a federal appeals court opinion holding such bans to be unconstitutional. The U.S. Supreme Court later allowed that decision to stand.

Same-sex couples cannot get their licenses just yet, however. Crabtree said his injunction would not take effect until 5 p.m. Nov. 11. It could take effect sooner if state lawyers tell him they will not appeal his order to the 10th U.S. Circuit Court of Appeals in Denver, Crabtree wrote.

But Attorney General Derek Schmidt said the state “will promptly appeal.”

“Kansas appreciates Judge Crabtree’s willingness to delay his order while the state defendants file their appeal,” Schmidt said in a statement.

Judging the constitutionality of democratically enacted laws is a grave and delicate task, Crabtree wrote, but he could reach no other conclusion.

“When the Supreme Court or the 10th Circuit has established a clear rule of law, our court must follow it,” Crabtree wrote.

Two lesbian couples, one from Wichita and the other from Lecompton, brought the suit challenging the constitutionality of Kansas’ same-sex marriage ban. The 10th Circuit previously had struck down similar laws in Oklahoma and Utah. The U.S. Supreme Court later allowed that decision to stand.

Independent legal analysts quickly predicted that those decisions doomed prohibitions against same-sex marriage in other 10th Circuit states, including Kansas.

Doug Bonney, a lawyer for the American Civil Liberties Union of Kansas, noted that one of the couples in the case, Kail Marie and Michelle Brown of Lecompton, have been together for 21 years.

“Very soon, they’ll be able to do what every straight couple has been able to do forever, which is get married,” Bonney said. “This is a great day for marriage equality in Kansas.”

A state attorney argued at a hearing Friday that the federal court should not rule because a related case was 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 clerk to issue marriage licenses to gay and lesbian couples. The judge’s order was temporarily halted, and a hearing on that case is set for Thursday.

Kansas voters passed a constitutional amendment banning same-sex marriage in 2005 with about 70 percent of the vote.

To reach Mark Morris, call 816-234-4310 or send email to mmorris@kcstar.com.

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