Kansas: Attaining same-sex marriage (SSM) and equal rights for
Gay, Bisexual and Transsexual (LGBT) community.
Part 4 of 8:
2014-OCT: Westboro Baptist Church applies for
intervener status. Attempts to vote
liberal judges out of office fail. U.S. District
Court rules ban
on same-sex marriages to be
Kansas appeals ruling.
2014-OCT-25: Attempt to defeat re-election bid of Johnson County District Court Judge, Kevin Moriarty:
Judge Moriarty is up for re-election on NOV-04. Brian Baumgardner, husband of state Senator Molly Baumgardner, has organized an effort to convince voters to vote against Judge Moriarty's retention, apparently because the judge followed normal court protocol by authorizing the temporary distribution of marriage licenses to same-sex couples. 2
Brian Baumgardner issued a statement saying:
"Mr. Moriarty obviously believes his personal views supersede legal protocol, the will of the voters and the Kansas Constitution. This most recent disregard for the Kansas Constitution is the final straw." 1
It is important to realize that when the state and federal Constitutions are in conflict with each other, that judges and others have to choose to obey one of them and reject the other. Both Brian Baumgardner and Judge Moriarty have been faced with this clash of Constitutions, and have chosen a different Constitution to follow.
2014-OCT-26: The Westboro Baptist Church (WBC) files a request with the court for intervener status:
The Church is probably best known for its web site http://www.godhatesfags.com and the strident posters that members of the church carry during their demonstrations. Examples are: "Fags are beasts," "God hates Obama," "Fags Wed" (with a picture of a dog), "America is Doomed," "God hates you," "Your 're going to Hell." 2 One of their specialties is to demonstrate at, and disrupt, military funerals.
The WBC describe themselves as:
"... an independent Bible-believing church located in Topeka, Kansas (since
1955), which has had a highly conspicuous public testimony against the proud
ruinous sins of this generation; including a nearly 25-year street ministry,
engaging the state, nation and world in a robust debate about its policies of sin,
and the consequence of such pervasive proud sin to the country and its people.
Throughout its years of picketing, WBC has warned Kansas that the sin of homosexuality, and particularly same sex marriage, will bring great woe and
harm to this state. Today the number one moral issue facing this nation is same-sex marriage. WBC has a vital interest in what the courts rule regarding this
issue, as it directly impacts their religious practices, beliefs, preachments,
picketing, association and speech, as well as the well being of their fellow man.
At the core of WBC’s picketing is the Bible doctrine that a proper marriage is
between one man, one woman, for life, is a Scriptural symbol of the great
mystery of Christ and His Bride, the Church of the Lord Jesus Christ. ... Same sex marriage rips that symbol to
shreds, and is utterly contrary to Bible doctrine.
This lawsuit is, at its core, a pursuit by the plaintiffs to have the government of
the State of Kansas endorse, and officially require respect and dignity and social approval of, same sex marriage, in the form of a government marriage license,
which will bind and impact every citizen of the State. All other arguments in plaintiffs’ filings and other similar litigation about financial and health issues,
and the like, are offered only to buttress this core goal, to wit, societal
acceptance, by force of government power, of the same sex union." 6
Webmaster's comment: (Bias alert):
It is correct that the loving, committed same-sex couples who are plaintiffs in this case seek marriage licenses from the government and permission to marry. However, individual citizens of Kansas will remain free to disapprove of and demonstrate against same-gender sexual behavior, relationships involving same-sex couples, marriage of same-sex couples, etc. No citizen of Kansas will be forced to marry a person of the same sex. No member of the clergy will be required to marry a same-sex couple.
The WBC motion claims:
"The Kansas Attorney General (representing all defendants) is unable to adequately represent WBC because of the political pressure that flows from widespread disagreement with WBC and her ministry and religious message. ..."
"WBC desires to assert that it is constitutional folly to suggest that a sinful-based behavior union should be a union that is afforded civil rights and granted the imprimatur of respectability by a license from the government; and that in doing so the government violates its duty of religious neutrality; and puts itself in the position of imposing sin on the citizens, to the great detriment and harm of the health and welfare of the citizenry." 2
This raises the question of whether a state has the constitutional right to prohibit behaviors simply because some people considered those behaviors to be immoral. This question was answered by the U.S. Supreme Court in the famous 2003 case "Lawrence v. Texas." In their ruling, the high court declared unconstitutional the laws in Texas and many other state that had criminalized same-gender sexual behavior by consenting adults in private. Those "anti-sodomy" laws had been passed because of the public's moral disapproval of the LGBT community. All of the laws were overturned by the Supreme Court.
2014-OCT-28: New hearing scheduled:
U.S. District Judge Daniel Crabtree has scheduled a new hearing for Friday, 2014-OCT-31. 3
Kansas is the only state under the jurisdiction of the 10th U.S. Circuit Court of Appeals that is still enforcing its marriage ban on same-sex couples. Marriage equality has come to the other five states in the Circuit Court by various means. They are: Colorado, New Mexico, Oklahoma, Utah, and Wyoming.
2014-NOV-04: District Court rules same-sex marriage ban is unconstitutional:
Federal District Court Judge Daniel Crabtree in Kansas issued a ruling in Marie v. Moser. As almost everyone expected, he found that the same-sex marriage ban in the Kansas Constitution is unconstitutional, and that same-sex couples must be allowed to marry in the state. He based his decision on an earlier decision by the 10th U.S. Circuit Court of Appeals in Kitchen v. Herbert. It stated that the 14th Amendment grants every couple -- opposite-sex or same-sex:
"... the fundamental right to marry, establish a family, raise children, and enjoy the full protections of a state's marital laws."
The Jurist web site commented that Judge Crabtree:
"... found in favor of the plaintiff's claim, which asserted that the law in Kansas denying same-sex couples the right to marry is unconstitutional. Judge Daniel Crabtree stated in his opinion:
'[F]ollowing precedent is a core component of the rule of law. When the [U.S.} Supreme Court or the Tenth Circuit [Court of Appeals] has established a clear rule of law, our Court must follow it.'
Kansas is the last state within the Tenth Circuit to grant a preliminary injunction against the same-sex marriage ban. The court set the effective date of the decision as November 11 to allow the defendants time to appeal." 14
The federal 10th Circuit Court of Appeals includes Kansas among the six states under its jurisdiction. The others are Colorado, New Mexico, Oklahoma, Utah, and Wyoming. Federal District Court judges are required to follow precendents established by their state's Circuit Court.
Judge Crabtree did not rule whether Kansas would have to recognize legal marriages solemnized out-of-state by same-sex couples.
He issued a temporary stay on his ruling, so that same-sex couples cannot marry immediately. This gave the individual county clerks time to accommodate the new law. It also gave the State of Kansas time to appeal his ruling. His stay was set to expire on Tuesday, NOV-11, at 5 PM local time.
The Secretary of Kansas' Department of Health and Environment had one week to decide whether to appeal the District Court decision to the 10th U.S. Circuit Court of Appeals. However, that court has already ruled in favor of marriage equality in two separate lawsuits from Utah and Oklahoma during the summer of 2014. Those two cases were appealed to the U.S. Supreme Court. On OCT-06, the high court refused to accept the appeal. Most legal experts believe that this automatically made the two cases final and binding on Utah, Oklahoma, Kansas and the other three states over which the 10th Circuit Court has jurisdiction. Thus, if today's lawsuit in Kansas were appealed, it is difficult to see how the Circuit Court could fail to uphold the District Court ruling. 4,12
Michael winter, "Gay couples begin to marry in Kansas City," The Wichita Eagle, 2014-NOV-07, at: http://www.kansas.com/
Bill Chappell, "Federal Judge Overturns Kansas Ban On Same-Sex Marriage,"The Two-Way by NPR, 2014-NOV-04, at: http://www.npr.org/
Amy Himmelberg, "Kansas Attorney General responds to Tenth U.S. Circuit Court of Appeals denial of application for a stay in Marie v. Moser," Kansas First News, 2014-NOV-08, at: http://kansasfirstnews.com/
"Federal judge declares Kansas same-sex marriage ban unconstitutional," Jurist, 2014-NOV-05, at: http://jurist.org/