Decision on Kansas Marriage Licenses Likely Soon

A federal judge in Kansas says he will rule soon on whether same-sex couples can obtain marriage licenses, even though state officials have asked him not to issue a decision at all because a marriage equality case is pending in a state-level court.

U.S. District Judge Daniel Crabtree heard oral arguments Friday in Kansas City on a request that he block enforcement of the state’s ban on same-sex marriage while he considers a case challenging the ban, thus allowing gay and lesbian couples to obtain the licenses. But Kansas attorney general Derek Schmidt and his staff said that if Crabtree issues a preliminary injunction against enforcement of the ban, they will appeal it immediately to the U.S. Court of Appeals for the 10th Circuit, the Lawrence Journal-World reports.

The Kansas situation is complicated. At the federal court level, two same-sex couples represented by the American Civil Liberties Union are asking for the state’s marriage ban to be struck down, and they are also asking for the injunction, which would bring marriage equality to Kansas immediately if granted.

At the state court level, Johnson County Judge Kevin Moriarty last month ordered that county officials issue marriage licenses to gay and lesbian couples. But Schmidt’s office asked the Kansas Supreme Court to overrule Moriarty, and the high court blocked his order while it considers the case, for which oral arguments are scheduled Thursday.

“The Kansas Supreme Court has to be allowed to move forward,” Assistant Attorney General Steve Fabert said Friday, according to the Associated Press. “They may address the ultimate constitutional questions.” Federal courts, he said, usually defer to state courts when both are looking at similar questions.

ACLU attorney Doug Bonney, however, “said the Kansas Supreme Court could decide that case without ever addressing the constitutional question of whether the Kansas ban violates the U.S. Constitution’s 14th Amendment, which prohibits states from denying its citizens equal protection of the laws,” according to the Journal-World.

Bonney also said Kansas’s ban should be struck down because it is similar to those invalidated in Utah and Oklahoma by federal district courts and the 10th Circuit appellate court. The U.S. Supreme Court in October let those rulings stand, and Kansas, as a part of the 10th Circuit, should be bound by that ruling as well, he said.

One of the couples in the suit, Kerry Wilks and Donna DiTriani, told the Journal-World they feel they are being used as “election fodder,” as Gov. Sam Brownback has run ads saying his challenger, Paul Davis, would appoint “liberal judges” like those who’ve overturned marriage bans.

Speaking to reporters after the hearing Friday, Wilks also said there’s no reason to delay allowing same-sex couples to marry. “One minute is too long to wait,” she said, according to the AP. “Look me in my eyes. Look me in my human face. We are people. We want to get married.”