The attorney general of Kansas is calling on his state’s highest court to stop same-sex marriages from taking place in his state, following a decision from at least one state judge to allow gay couples to marry.
In a statement, Kansas Attorney General Derek Schmidt, a Republican, said he filed a request before the Kansas Supreme Court to place a stay on same-sex marriages because the state judge acted without proper authority.
“No lawsuit was pending that asked the Judge to evaluate current Kansas law, and there was no opportunity for the State of Kansas or anybody else to challenge or even have input into the Judge’s administrative order before it was issued,” Schmidt said. “This is not a proper way to determine whether a provision of the Kansas Constitution remains in force and effect.”
Following the Supreme Court’s refusal to hear the U.S. Tenth Circuit Court of Appeals’ decision against same-sex marriage bans in Utah and Oklahoma, Chief Judge Moriarty of the Tenth Judicial Circuit issued guidance saying same-sex couples will be able to wed in Johnson County, which is the largest county in Kansas.
The reasoning was that Utah and Oklahoma lie in Tenth Circuit, which is the same judicial circuit as Kansas.
On Friday, the day after Moriarty issued his guidance to county clerks, a same-sex couple married in Johnson County, according a local media report. A photo of “Kelli and Angela” was posted on Equality Kansas’ Facebook page, saying the same-sex couple was the first to wed in the state.
But unlike state officials in West Virginia and Colorado, who conceded to marriage equality in their states after the Supreme Court’s action, Kansas Gov. Sam Brownback and Schmidt said the prohibition on same-sex marriage remains the law of the land.
But Schmidt said the decision to allow same-sex couples to marry in Johnson County is a violation of the law because no court has explicitly overturned Kansas’ ban on same-sex marriage.
“The Johnson County Court’s decision is an outlier,” Schmidt said. “Numerous other Kansas Courts have concluded, as I have, that the law in Kansas remains unchanged and same-sex marriage remains unlawful unless and until a Court of competent jurisdiction, deciding a properly presented case or controversy, holds otherwise as a matter of federal constitutional law. Because that has not happened, I have concluded the Judge’s decision to order the issuance of licenses is unlawful and I now have no choice but to ask the Kansas Supreme Court to set it aside.”
No pending lawsuit in Kansas explicitly challenges the state’s ban on same-sex marriage, although the state has a related case dealing with taxes for same-sex couples. The American Civil Liberties Union of Kansas has pledged to file by the end of the month a lawsuit seeking compliance with the Tenth Circuit decision on marriage in the state.
Schmidt also took aim at the Supreme Court for refusing to take up the marriage issue, saying it has led to confusion and differing laws among the states.
“The U.S. Supreme Court’s decision to refuse to consider the pending appeals has resulted in an inconsistent patchwork of how the U.S. Constitution is to be applied in different states throughout our country,” Schmidt said. “In Kansas, the confusion and uncertainty have been made worse by this outlier decision that effectively renders the Constitution’s meaning different from county to county.”
A similar situation took place this week in South Carolina, where Attorney General Alan Wilson called on the state Supreme Court to halt same-sex marriages in the state after Charleston County Judge Irvin Condon announced same-sex couples would be able to marry in his jurisdiction. The court agreed to stay the weddings pending the outcome of federal litigation challenging the South Carolina’s ban on same-sex marriage.
Thomas Witt, executive director of Equality Kansas, lambasted state officials for continuing to fight the marriages of same-sex couples in his state.
“Sam Brownback and Attorney General Schmidt need to stop playing election year politics with people’s lives and allow these legal marriages to proceed,” Witt said. “The federal courts have ruled, and we all know how this will end. Delaying the inevitable is a waste of time and taxpayer money, and a gross injustice to LGBT Kansans and their families.”
UPDATE: Kansas Chief Justice Lawton Nuss late Friday partially agreed to the request from Schmidt, barring clerks from issuing marriage licenses to same-sex couples in the state. However, Nuss enabled same-sex couples to continue to apply for marriage licenses for the time being.
“In the interest of establishing statewide consistency, we grant the Attorney General’s alternative request, advanced in his memorandum, for a temporary stay of Chief Judge Moriarty’s Amended Administrative Order 14-11, insofar as this Order allows issuance of marriage licenses,” Nuss stated. “Applications for mamage licenses may continue to be accepted during the period of the stay. The stay shall remain in force pending further order by th is Court.”
In the order, Nuss expresses skepticism over attorney general’s arguments in defending the state law given the precedent in the Tenth Circuit.
“Simply put, the Attorney General’s right to reliefon the merits is not clear, nor is it apparent per the Rule ‘that no valid defense to the petition can be offered,’ given the interpretation and application of the United States Constitution by panels of the United States Tenth Circuit Court of Appeals,” Nuss said.
The court sets a briefing schedule for the issue in the coming weeks and schedules oral arguments on November 6.