|"We seek to ensure the dignity, safety and legal equality of all Kansans"|
As of this writing on the morning of October 23, the marriage issue here in Kansas remains unsettled.
On Monday, October 6, the United States Supreme Court upheld the 10th Circuit Court of Appeals rulings in two cases overturning state bans on marriage equality: Utah and Oklahoma. Both states in the past twelve months had their bans overturned by Federal district courts. You may remember the scenes almost a year ago in Utah of happy couples rushing to get marriage licenses before being blocked by an appeal from their state's Attorney General. Both states lost their appeals to the 10th Circuit - in June, Utah's ban was again ruled unconstitutional, followed by Oklahoma's a couple of weeks later.
Those victories for marriage equality did not mean that people in Utah and Oklahoma could start marrying, as the 10th Circuit wrote "stays" into their rulings pending further appeals to the US Supreme Court. Both states, of course, continued their appeals.
On October 6, the US Supreme Court issued an order allowing to stand, without comment, the appeals coming from the 10th Circuit, which covers Kansas, Utah, Oklahoma, Colorado, New Mexico, and Wyoming. At the same time, they also let stand appeals from the 4th and 7th Circuits, which involved unconstitutional bans in Indiana, Wisconsin, and Virginia.
The stays written into the appellate rulings were automatically lifted, and states involved in the October 6 Supreme Court orders began issuing marriage licenses.
Even though Kansas did not have a case before a Federal court at the time of the 10th Circuit ruling and the subsequent Supreme Court action, the fact that we are part of the 10th Circuit means their rulings on similar cases in other states applies here. The Utah ban, in fact, is very similar to the Kansas ban. The 10th Circuit was clear: "similar statutory enactments do not withstand constitutional scrutiny."
There are some who believe the US Supreme Court, by denying the appeals of the three Appellate rulings, has refused to weigh in on the subject of marriage equality. We at Equality Kansas don't all take that view. The majority opinion in last year's "DOMA" case (US v Windsor) was quite clear: Same-sex marriages must be recognized by the Federal government. Local Federal district judges across the nation have almost unanimously agreed, and have applied Federal recognition to the state cases brought before them.
All of the Appeals courts have agreed with the lower courts, and have issued opinions that are quite direct and clear: State bans on marriage equality are unconstitutional. The Supreme Court typically only takes cases where there is a conflict between the Circuit courts, or where there is a conflict with previous Supreme Court precedent. In the marriage cases, all of the Circuit courts are in agreement, and none of those decisions conflict with Windsor. In one sense, the Supreme Court has already spoken on this matter, the lower courts are following that original ruling, and there is no point in hearing appeals where there is no conflict between the courts.
Equality Kansas had been preparing for exactly this scenario since the Utah and Oklahoma cases were appealed to the 10th Circuit over a year ago. We knew that, if the 10th decided in favor of marriage equality in those states, Kansas would ultimately be included in that decision. We were ready in June, when the Utah case was decided, to have our members go to local courthouses and demand marriage licenses. What stopped us then was the stay of the ruling pending disposition by the US Supreme Court. On October 6, that stay was lifted, and we immediately began contacting our members and letting them know the time for marriage equality had come.
That Monday, Equality Kansas members began going to local county courthouses across the state, applying for marriage licenses. By Tuesday, the trickle had turned into a flood, as dozens - perhaps hundreds - of couples around the state answered our call to action.
The results were mixed. Confusion reigned. Court clerks and county judges were unsure of what to do. Some allowed couples to complete their marriage license applications, pending the three-day waiting period. Others were quickly turned away without being allowed to complete an application. In many cases, applications were accepted but then denied within hours.
In an attempt to get some control over the situation, on Tuesday, October 7, the Kansas Office of Judicial Administration issued a guidance letter to the county courts around the state: Accept marriage license applications, but don't issue the actual marriage license at the end of the three-day waiting period. Some counties followed that guidance, some chose their own path.
On Wednesday, October 8, Johnson County Chief Judge Kevin Moriarty made a bold decision. The only couple to successfully apply in Johnson County for a marriage license the previous day could come back at the end of the three days on Friday, October 10, pick up their license and legally marry. His order to the other Johnson County judges and to the court clerks was to accept applications and issue licenses.
That Thursday, nearly 60 more same-sex couples applied for marriage licenses in Johnson County. Other couples across the state continued the campaign to press the issue with their local county courthouses. No other judges took the same step as Judge Moriarty, but with the long Columbus Day weekend coming in the middle of the three-day waiting period, there was a "wait and see what happens next" undercurrent to many conversations.
When the Johnson County Courthouse opened Friday morning, October 10, the first same-sex couple to be granted a marriage license were married within minutes (no other applications accepted in Johnson County on Tuesday, so the earliest any other weddings could take place would be the following Tuesday, October 14). By 11am, the Kansas Attorney General filed an action with the Kansas Supreme Court demanding that no more applications be accepted and no more marriage licenses be issued.
Late Friday afternoon, the Kansas Supreme Court issued an order stopping the issuance of marriage licenses. However, they also ordered district courts to continue to accept applications. They have set a hearing for Thursday, November 6, where they have demanded that Attorney General Derek Schmidt explain why he believes the Kansas ban should be left in place given the 10th Circuit rulings in the Utah and Oklahoma cases. From Equality Kansas' point of view, this ruling can be viewed as favorable to our cause. The Kansas Supreme Court could have stopped the issuance of applications, and they could have been far less direct on the matter of the 10th Circuit ruling.
Also late on Friday the 10th, the ACLU of Kansas filed a lawsuit in Federal district court directly challenging the Kansas marriage ban. With Equality Kansas members as plaintiffs, there has been a hearing set for Friday, October 24, at 10am before Federal district judge Daniel D. Crabtree. As of this writing, there are questions whether the hearing will happen, and if so, whether it will be in Topeka or in Kansas City, Kansas. The speed with which the case was assigned and scheduled has made the hearing time, date, all up in the air as other cases were already on the docket.
What will happen at the hearing on Friday, October 24th? We don't know the answer to that. We are hoping Judge Crabtree issues an immediate injunction, blocking Kansas from continuing to enforce its unconstitutional marriage ban. He may or may not do that, as Governor Brownback and Attorney General Scmidt have made it clear they intend to fight to preserve this vestige of bigotry as far as they can. If we are unsuccessful in Federal court in the short term, that could leave it to the Kansas Supreme Court, at the hearing November 6, to find the Kansas ban unconstitutional.
We shall see.
In the meantime:
Yes, you may continue to apply for your marriage license, but you will not yet be given a license at the end of the three-day waiting period. The applications are good for six months, and since we hope and expect this to be resolved well before then, Equality Kansas encourages couples who wish to legally marry to complete their application at their earliest opportunity.
If you are already legally married out of state, you will continue to have trouble updating your drivers license with your married name, and doing all the other things married couples get to do. That shouldn't stop you from trying, however. As with marriage license applications, we encourage LGBT couples around the state to try to force the issue with local officials. Whatever your outcome, please let us know if you've succeeded or not in asserting your rights. If you meet with refusals, keep the names of the people with whom you speak.
While the marriage fight is almost over, the fight for protection from legalized discrimination will be heating back up. Kansas has seen four years in a row - 2011 through 2014 - of radical right legislation that seeks to permanently enshrine legalized anti-LGBT discrimination in our state laws. That fight will continue.