On 2014-NOV-08, the Tenth Circuit Court of Appeals denied Kansas' request to extend the stay of Judge Crabtree's ruling. Attorney General Derek Schmidt issued a statement saying:
Today’s decision by the Tenth Circuit means that the federal District Court’s preliminary injunction remains the controlling authority in this case. Pursuant to that order, state district court clerks in Douglas and Sedgwick counties will be barred from denying marriage license applications solely because the applicants are of the same gender as of 5 p.m. on Tuesday, November 11, unless the U. S. Supreme Court intervenes.
“Because the federal District Court’s injunction will effectively disable a provision in the Kansas Constitution, I believe I have a duty to exhaust all of the state’s options for appeal. Yesterday’s decision by the Sixth U.S. Circuit Court of Appeals in Cincinnati, which held that similar laws in four states do not violate the U. S. Constitution, creates for the first time a split of authority among the federal appeals courts and increases the likelihood that the U. S. Supreme Court will address this important constitutional question. Therefore, I will take the additional step before Tuesday of asking Justice Sonia Sotomayor, who handles these matters arising within the Tenth Circuit, to stay the District Court’s injunction pending appeal."
In an apparent violation of District Court Judge Crabtree's stay, a few same-sex couples were able to apply for marriage licenses in Kansas City. KS a few days before the stay was scheduled to end. 3
2014-NOV-10: Same-sex marriage comes to Kansas:
The first stay -- imposed by Judge Crabtree -- was scheduled to automatically expire at 5 PM CST on Tuesday, NOV-11. Many same-sex couples were planning to to apply for marriage licenses after that time.
After the 10th Circuit Court Court of Appeals refused Attorney General Schmidt's stay request, he made still another stay request to Justice Sonia Sotomayor. She is the U.S. Supreme Court justice who handles emergency appeals from Kansas. On Monday, NOV-10, the day before Judge Crabtree's stay was scheduled to expire, Justice Sotomayor issued a temporary stay which prevented same-sex Kansas couples from applying for licenses on Wednesday, NOV-12, and subsequently marrying. 4
Justice Sotomayor also asked the American Civil Liberties Union (ACLU) -- the group who represents the plaintiffs -- to file their response to Attorney General Schmidt's stay request, on or before 4 PM on Tuesday, NOV-11 Central Time.
Video by KAKE-TV, in Wichita, KS:
Apparently, the ACLU's response was convincing because, on Wednesday evening, NOV-12, the U.S. Supreme Court lifted their stay. 6 Same-sex couples were able to apply for their licenses on Thursday morning in either Douglas or Sedgwick county, pick them up later after the normal three-day waiting period, and be married. According to USMarriageLaws.com, once the couple has picked up the license, they can use it to be married anywhere in the state. 5
Kansas has thus become the th jurisdiction (including the District of Columbia and 34 states) to legalize same-sex marriage in the U.S. However, as of mid-2014-NOV there is resistance to the issuance of marriage licenses to same-sex couples in some Kansas counties. So many such couples had to visit a nearby county to obtain their license, and then return home to be married.
2014-NOV-13: A patchwork of same-sex marriage laws across Kansas emerges:
There are chronic disagreements in Kansas between political and religious conservatives and liberals. On marriage by same-sex couples, one critical difference is over the scope of the Marie v. Moser lawsuit:
The American Civil Liberties Union, which has represented the plaintiffs in the lawsuit, interprets the U.S. Supreme Court's ruling on NOV-12 as clearing the way for same-sex couples throughout Kansas to go to their local county clerk, apply for a marriage license, wait for the usual three day interval, pick up their license, and be able to marry.
Doug Bonney, the ACLU legal director issued a statement saying that the federal judge:
"... specifically held that Kansas’ marriage bans are unconstitutional on their face and cannot be enforced against anyone under any circumstances. It is our expectation that the attorney general and all other Kansas officials will — like their counterparts in Oklahoma, Utah, Colorado, and Wyoming — stop enforcing the marriage bans."
Attorney General Derek Schmidt (R) believes that the high court ruling only applies to two out of the state's 105 counties. These are the two counties -- Douglas County in northeastern Kansas and Sedgwick County in south-central Kansas -- whose court clerks were named as defendants in the Marie v. Moser case.
Rick Levy, a professor of constitutional law at Kansas University, believes that the Supreme Court’s order should be applied statewide. He said:
"I think that if Judge Crabtree’s order means Kansas constitutional and statutory provisions violate the equal protection clause, those provisions are void. And if they’re void because they’re unconstitutional, then they’re void not only for the judges that were directly subject to the order but also for every other judge in the state. ..."
"A lot of people think if the [U.S. Supreme] Court’s majority was going to rule that same-sex marriage was illegal, they would have done so sooner. A lot of people who look at the denial of (requests to review) in those other cases saw it as significant, not because the Supreme Court tipped its hand, but because if the court was going to stop same-sex marriages going forward, that was the time to do it, before a lot of couples had gotten married.”" 7
Johnson County's Court Clerk Sandra McCurdy of Johnson County said:
"Until I hear something from the Kansas Supreme Court, I'm not issuing any marriage licenses."
Law Professor Carl Tobias at the University of Richmond, VA said that other clerks are likely to withhold the issuance of licenses:
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/
Michael winter, "Gay couples begin to marry in Kansas City," The Wichita Eagle, 2014-NOV-07, at: http://www.kansas.com/
Lawrence Hurley, "U.S. justice temporarily blocks gay marriage in Kansas," Reuters, 2014-NOV-10, at: http://news.yahoo.com/
"Obtaining a marriage license in Kansas," US Marriage Laws, at: http://www.usmarriagelaws.com/