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Religious Tolerance logo

Attaining same-sex marriage and equal rights for the Lesbian,
Gay, Bisexual and Transsexual (LGBT) community in Kansas

Part 2 of 8: 2014-OCT: State firmly resists
marriage
equality.
One same-sex couple were
actually married. ACLU launches lawsuit in
federal court.

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This essay is continued from the previous essay

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2014-OCT-07: The State of Kansas resisted implementing same-sex marriage:

A large percentage of social conservative, religious conservatives, and Republicans believe that the United States is a pure democracy.

That is, when voters pass an amendment to a state constitution, the will of the voters automatically becomes the law of the land.

In Kansas, almost 70% of voters approved the Kansas Marriage Amendment in a plebiscite held on 2005-APR-05. 1 It was one of the 28 amendments to various states' constitutions that were promoted mainly during the 2000's as a method of preventing state Supreme Courts from legalizing marriage equality. In reality, the Kansas amendment prohibited both same-sex marriage and civil unions.

Since 2005 there has been a major change in acceptance of same-sex marriage and/or civil unions for same-sex couples within the state. A survey by Public Policy Polling in 2014-FEB showed that 66% of voters in Kansas either support same-sex marriage or civil unions being made available to same-sex couples. Only 32% are opposed to the state recognizing the relationships of such couples. Even a 53% majority of Republican voters either support same-sex marriage or civil unions. If the Kansas Marriage Amendment were voted upon today, it is obvious that it would be overwhelmingly defeated.

Governor Sam Brownback (R) strongly favors upholding the amendment. He said:

"The state of Kansas voted on this issue. The people of Kansas voted. Nearly 70 percent supported the definition of marriage as the union of a man and a woman. I support that. ... I think the state of Kansas should defend how the people have spoken and how the people have voted." 2

On another occasion, he said:

"The people have spoken on this. I don't know how much more you can bolster it than to have a vote of the people to put in the constitution that marriage is the union of a man and a woman." 3

Kansas Attorney General, Derek Schmidt (R) also committed himself to defend the Kansas Marriage Amendment. He said:

"Kansas finds itself in a difficult position at this time. Where there has not been a challenge directly to the Kansas Constitutional provision, no court has therefore spoken to the continued viability to that provision." 2

Both the Governor and Attorney General are themselves in a difficult position, because their oath of office includes a promise for them to uphold both the state and federal Constitutions. It offers no guidance on what to do if the two Constitutions conflict.

On the other hand, most constitutional experts believe that the U.S. is a constitutional democracy.

They believe that the highest law in a state is not the will of the people but the content of the U.S. Constitution. Dozens of courts have recently ruled that the due process and equal protection clauses of the 14th Constitution require the federal, state and local governments to treat people equally, unless a very strong contraindication exists. About three dozen courts since mid-2013 have interpreted same-sex marriage bans in this way. All but one court decided that the 14th Amendment requires that if opposite-sex couples can marry then same-sex couples should similarly be able to marry.

To further complicate matters, the mid-term elections are scheduled for early 2014-NOV. Republican candidates in Kansas would lose a significant number of votes from among the overwhelming majority of Republican voters who oppose marriage equality if the state government allowed same-sex marriages to became available without a major fight.

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2014-OCT-07: A same-sex couple almost obtained a marriage license:

Roxana Hegeman, writing for the Huffington Post on OCT-07, said"

"In Kansas' Reno County, Julia and Regina Johnson were given the necessary paperwork Tuesday for a marriage license before a clerk called them hours later to say their application was denied.

Reno County Chief Judge Patricia Macke Dick said she had no choice because there is no case that specifically overturns the Kansas same-sex marriage ban.

The only gay marriage-related lawsuit now in the Kansas courts is a narrow case filed by two couples who married in other states and sued Kansas over tax treatment. Their case is being heard next month [2014-NOV]." 4

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2014-OCT-10: A same-sex couple actually obtained a marriage license and were married:

On OCT-08, Johnson County District Court Judge, Kevin Moriarty, ordered the District Court Clerk to issue marriage licenses to qualified same-sex couples. By the next day, the clerk had received 42 applications from same-sex couples for marriage licenses.

University of Kansas law Professor Richard Levy advised same-sex couples that they:

"... can go ahead and get a marriage license. But if you do that, you may run the risk that the order under which you got your license is declared invalid."

That is, if they married, their marriage may later be ruled invalid, and they may be forcibly divorced by the state against their will.

Brad Cooper of the Kansas City Star wrote that Kansas was not a party in either the Utah or Oklahoma cases decided by the 10th U.S. Circuit Court of Appeals. They were among the cases that the U.S. Supreme Court refused to hear on OCT-06:

"Yet a federal judge would be bound by the same ... [Circuit Court] decision unless the state could show its same-sex marriage ban was markedly different from those of the other states. 4

Proving the bans to be different would be a challenging task for even the most expert of lawyers.

Washburn University law professor Jeff Jackson disagreed, saying:

"The only way the Kansas law gets overturned is if there is a case or controversy that comes before the court. As a judge, you can’t unilaterally overturn Kansas law based on what you think is going to happen."

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2014-OCT-10: ACLU in Kansas files lawsuit in federal District Court:

The American Civil Liberties Union of Kansas filed a lawsuit on behalf of two lesbian plaintiff couples who want to marry in Kansas. Kail Marie and Michelle Brown, of Lecompton, and Kerry Wilks and Donna DiTrani of Wichita had been denied marriage licenses in Douglas and Sedgwick counties. 4

Doug Bonney, the ACLU of Kansas legal director said:

"People will be able to get married. But the next step is go and try to ... file joint tax returns and see what the state says." 5

Plaintiff Kerry Wilks said:

"I shouldn't have to leave my state to get a basic civil right. This is part of a larger issue. It's about basic equality for gays and lesbians." 6

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2014-OCT-10: Kansas Attorney General requested that further same-sex marriage licenses be prohibited:

Attorney General Derick Schmidt (R) filed a request with the Kansas Supreme Court a few hours after the Johnson County clerk issued a marriage license. He claimed that Johnson County District Court Judge Kevin Moriarty exceeded his authority when he issued his order two days previously.

Schmidt said that his goal is to:

"... freeze the status quo in place until the legal dispute can be properly resolved. ... I am a strong advocate for an orderly resolution of this dispute in a way that will be accepted by all parties as legally correct and that allows the state to defend its constitutional provision and its laws." 7

Later that day, the Kansas Supreme Court issued an order that temporarily blocked the issuance of more marriage licenses to same-sex couples. The Court set NOV-06 as the date to hear oral arguments.

Also on OCT-10, two women were married outside a county courthouse. Their names have not been released.

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This topic is continued in the next essay

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "Kansas Marriage Amendment (2005),"Ballotpedia, at: http://ballotpedia.org/
  2. Stephen Koranda, "Despite SCOTUS Decision, Kansas Holds On To Same-Sex Marriage Ban," National Public Radio, 2014-OCT-07, at: http://www.npr.org/
  3. Roxana Hegeman, "These States Still Won't Issue Same-Sex Marriage Licenses," Huffington Post, 2014-OCT-07, at: http://www.huffingtonpost.com/
  4. "ACLU files federal lawsuit challenging Kansas same-sex marriage ban," LGBTQNATION, 2014-OCT-12, at: http://www.lgbtqnation.com/
  5. Brad Cooper. "Johnson County judge’s order allowing same-sex marriages won’t settle the issue in Kansas, " The Kansas City Star, 2014-OCT-09, at: http://www.kansascity.com/
  6. Kevin Murphy, "Kansas Supreme Court temporarily blocks gay marriages." Reuters, 2014-OCT-10, at: http://www.reuters.com/
  7. "Kansas seeks to block county gay marriage licenses; briefs filed," KSN-TV, 2014-OCT-10, at: http://ksn.com/

Site navigation: Home > Same-sex marriage > SSM menu > Kansas > here

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Copyright © 2014 by Ontario Consultants on Religious Tolerance
Originally published: 2014-OCT-11
Last updated 2014-OCT-29
Author: Bruce A Robinson
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