Johnson County can issue marriage licenses to same-sex couples effective immediately, the Kansas Supreme Court said Tuesday.
The court’s narrow ruling did not legalize same-sex marriages throughout the state. Instead, the court said Johnson County Chief Judge Kevin Moriarty was within his rights on Oct. 8 when he ordered the marriages to proceed.
The decision means Johnson County will join a handful of Kansas jurisdictions where marriage licenses can be issued to same-sex couples. At least two such couples are expected to seek the licenses Wednesday, supporters of same-sex marriage said.
But the ruling eventually might be expanded beyond Johnson County. The court said other Kansas judges were free to reach the same conclusion as Moriarty — language that might convince other judges to order the licenses in their courthouses.
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“It’s another step toward full marriage equality in Kansas,” said Tom Witt of the Kansas Equality Coalition. “We’re not there yet, but every couple of days we get a little closer.”
Moriarty was not available for comment.
While the court’s ruling allows same-sex marriages in Johnson County to proceed, it also leaves open the possibility of further legal scrimmaging over same-sex marriage in the state.
Kansas Attorney General Derek Schmidt has gone to court to protect the state’s same-sex marriage ban, which is embedded in the Kansas constitution. In its ruling Tuesday, the state Supreme Court said it would revisit its decision once the federal courts conclude their examination of the ban.
Schmidt, who was re-elected to another four-year term two weeks ago, released a written statement in response to the ruling.
“Although we asked the Kansas Supreme Court to provide statewide uniformity, today’s ruling leaves the decision whether to issue licenses in the hands of the federal judiciary and of district court judges throughout the state,” the statement said. “Because a provision in the Kansas Constitution is at peril, the State of Kansas will continue its defense in federal court as long as a defense is properly available.”
Schmidt added that he hopes the U.S. Supreme Court will quickly agree to take up a case from a federal appeals court in Cincinnati that could settle the issue for “Kansas and the rest of the country.”
In court filings, the state has argued that the ban must remain in place until it is formally overturned.
That means the status of same-sex marriage license applications will remain a county-by-county determination for the immediate future.
As of Tuesday evening, same-sex couples in at least 10 Kansas counties — including Johnson, Wyandotte, Douglas and Sedgwick — appeared able to obtain marriage licenses.
But some judges in other jurisdictions have refused to issue the licenses. Others have accepted applications but won’t issue the licenses until they receive a definitive opinion from a higher court.
The statewide confusion frustrates some supporters of marriage equality.
“Derek Schmidt could just accept the inevitable,” Witt said. “Stop playing politics with our lives, stop burning taxpayers’ money on a quest that is absolutely going to fail.”