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Religious Tolerance logo

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

Part 5 of 8:
2014-OCT: Attempts to oust liberal judges.
Westboro Baptist Church
applies as intervener.
Attempts to oust judges fail. Case is appealed
to 10th U.S. Circuit Court of Appeals.

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This essay is continued from the previous essay

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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. 1

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." 2

It is important to realize that when the state and federal Constitutions are in conflict with each other, that judges, state officials, 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; each has chosen a different Constitution to follow.

The author of this essay posted a comment to the Sun Herald newspaper about this conflict. The newspaper serves Biloxi-Gulfport. MS and the Mississippi gulf coast. The conflict that is widespread in Kansas is also seen in Mississippi and many other states as well. Same battle, different locations, The posting states:

"The problem seems to be confusion about the basic constitutional makeup of the United States. Many religious and social conservatives believe that the vote of the public -- as in a same-sex marriage ban to amend the Kansas Constitution -- is the highest law of the land. They conclude that marriage by same-sex couples must be banned in Kansas. Others believe that the U.S. Constitution is the highest law. Numerous courts have ruled that the latter's due process and equal protection clauses of the 14th Amendment to the U.S. Constitution requires states to practice marriage equality. They conclude that same-sex couples must be able to marry in Kansas.

Until dialog between the two groups resolves this fundamental conflict, the attainment of marriage equality in the remaining approximately 16 states will be very slow. 6

Whether the posting survives the editorial process of the newspaper is anyone's guess.

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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." 1 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." 3

The District Court did not grant the WBC intervener status.

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2014-NOV-04 - Election Day: Attempts to persuade voters to oust judges fail:

Two state Supreme Court justices had concluded their six-year terms and were up for a retention vote on Election Day. Governor Sam Brownback had endorsed the efforts of Kansans for Justice to not renew the judges for another six-year term. The judges were accused of being too liberal. They had formed part of a 6:1 majority that overturned the sentences of Jonathan and Reginald Carr who had been convicted of murder.

According to Dan Margolies, writing for Kansas City Public Media (KCUR):

"Johnson County voters retained District Judge Kevin Moriarty by a comfortable margin. Like Rosen and Johnson, Moriarty was the target of a campaign to remove him from office – in his case because he ordered the court clerk to start issuing marriage licenses to same-sex couples.

Kansas Attorney General Derek Schmidt later asked the Kansas Supreme Court to vacate Moriarty’s order. That case is set to be heard on Nov. 6." 4

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2014-NOV-04: Kansas decided to appeal the District Court's ruling to the full 10th U.S. Circuit Court of Appeals:

The Attorney General of Kansas, Derek Schmidt (R), issued a statement, saying:

"The State of Kansas continues to have a strong interest in the orderly and final determination of the constitutionality of its prohibitions on same-sex marriage. The state defendants will promptly appeal this decision to the Tenth Circuit Court of Appeals and will ask for consideration by the full Circuit Court. Such a request for en banc consideration was not previously made by either Utah or Oklahoma when their cases were heard by a three-judge panel of the appellate court.

"The District Court recognized the weight of its decision to declare a provision of the Kansas Constitution in violation of the United States Constitution and thus unenforceable. Kansas appreciates Judge Crabtree's willingness to delay his order while the state defendants file their appeal." 5 

The term "en banc" is a French term that means "in the bench." It refers to a hearing by the all the judges in a court instead of the usual review by a three-judge panel that is randomly selected from the full court.

The decision by Kansas to appeal the District Court's ruling in the lawsuit Marie v. Moser to the 10th Circuit Court could be a win-win situation for marriage equality in Kansas, and for same-sex couples elsewhere in the U.S.:

  • If the en banc review were to uphold the District Court's decision, then there will be one more ruling in favor of marriage equality by a Circuit Court, making a total of five consecutive rulings that directly affected six states. This would make one more senior court ruling. solidifying the concept that same-sex marriage bans are unconstitutional because they violate the due process and equal protection clauses of the 14th Amendment to the U.S. Constitution.

  • If the Circuit Court overturned the ruling by the District Court, then the U.S. Supreme Court would be much more likely to accept an appeal of the case. That is because there would then be a conflict among four or more Circuit Courts that only the high court could resolve. This could lead in mid-2015 -- or more likely in mid-2016 -- to a ruling that will establish marriage equality across the entire country.

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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. "Westboro Baptist Church seeks to defend Kansas same-sex marriage ban," LGBTNATION, 2014-OCT-26, at: http://www.lgbtqnation.com/
  2. Brad Cooper, "Campaign is launched to oust Johnson County judge who cleared the way for same-sex marriage," Kansas City Star, 2014-OCT-24, at: http://www.kansascity.com/
  3. "Motion to Intervene of Westboro Baptist Church..." LGBTQNATION, 2014-OCT-20, at: http://www.lgbtqnation.com/
  4. Dan Margolies, "Kansas Judges Targeted For Ouster Retain Seats," Kansas City Public Media (KCUR), 2014-NOV-04, at: http://kcur.org/
  5. "Judge orders Kansas to allow same-sex marriages; state to appeal." KWCH 12, 2014-NOV-04, at: http://www.kwch.com/
  6. Emily Wagster Pettus, "US judge mulls challenge to Mississippi gay-marriage ban," Sun Herald newspaper, 2014-NOV-12, at: http://www.sunherald.com/

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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-25
Last updated 2014-NOV-15
Author: Bruce A Robinson
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