November 7, 2014 at 10:50 pm EDT | by Chris Johnson
Judge nixes Westboro intervention in Kansas marriage case
Westboro Baptist Church, gay news, Washington Blade

A judge denied intervention of the Westboro Baptist Church in the Kansas marriage case. (Washington Blade file photo by Michael Key)

The virulently anti-gay Westboro Baptist Church made an insufficient case to intervene in a lawsuit challenging the ban on same-sex marriage in Kansas, a federal judge ruled Friday.

U.S. District Judge Daniel Crabtree, an Obama appointee who on Election Day ruled against the Kansas ban on same-sex marriage, determined in a seven-page decision state officials defending Kansas law adequately represent Westboro’s interests.

“WBC has not identified any differences between the defendant’s ultimate objective in the litigation and its own,” Crabtree writes. “Nor can the Court identify any—both seek to uphold Kansas’ constitutional and statutory prohibitions against same-sex marriage. A shared ultimate objective between an existing party and an applicant for intervention triggers a presumption of adequate representation.”

Instead of being allowed to intervene, Crabtree permits the Topeka-based church to file a friend-of-the-court brief “asserting any arguments it would like the Court to consider.”

[UPDATE: In a subsequent filing on Sunday, Westboro declared has appealed its request to intervene to the U.S. Tenth Circuit Court of Appeals on the basis that no one else “will truly vigorously defend against the unholy matrimony plaintiffs propose.”]

Two weeks ago, lawyers for the church, which has gained a reputation for protesting events bearing signs with anti-gay slurs like “God Hates Fags, filed a request to intervene in the case.

Although the brief didn’t contain the virulently anti-gay language associated with Westboro, the filing maintained marriage equality in Kansas would incur God’s wrath and “destroy” the state. Further, the church argued Kansas officials wouldn’t represent the interests of the church because of past disagreements and argued state officials were, unlike the church, unable to invoke religious reasons in their arguments.

Crabtree issued a preliminary injunction against the ban on same-sex marriage in Kansas as a result of the litigation, but the lawsuit isn’t yet entirely resolved.

Also on Friday, Kansas Attorney General Derek Schmidt filed a request for an “en banc” re-hearing before the full U.S. Tenth Circuit Court of Appeals. The court ordered a response to the request from plaintiffs same-sex couples by Nov. 21.

The lawsuit was initially filed by the American Civil Liberties Union of Kansas of behalf of same-sex couples to compel the state to comply with legal precedent in the Tenth Circuit in favor of marriage equality.

That precedent, which Crabtree drew upon in his decision to issue a preliminary injunction against the Kansas marriage ban, already exists within the Tenth Circuit thanks to decisions from a three-judge panel on the appeals court striking down laws in Oklahoma and Utah that the U.S. Supreme Court refused to review.

Crabtree’s decision to deny intervention to Westboro is along the lines of his denial of intervention to Phillip and Sandra Unruh, a couple in Harper, Kansas, who sought to defend the state’s marriage law on the basis of religious arguments. On the same day the court denied Westboro’s intervention in the case, the couple appealed its request to intervene to the Tenth Circuit.

In related news on Friday, the Tenth Circuit denied a request from Kansas state officials to extend the stay Crabtree placed on his injunction against the state’s prohibition of same-sex marriage. That means gay couples should be allowed to marry in the state as soon as that stay dissolves Tuesday at 5 pm Central Time.

[h/t Kathleen Perrin]

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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