Attaining same-sex marriage and equal rights for the Lesbian,
Gay, Bisexual and Transsexual (LGBT) community in Kansas
Part 1 of 8:
2014-OCT: A U.S. Supreme Court decision
will require Kansas to implement marriage
However, the state administration
2014-OCT-05: Status of same-sex marriage in Kansas and in the rest of the U.S.:
As of this date, same-sex couples could routinely obtain marriage licenses and subsequently marry in 19 states and the District of Columbia. At that time, about 45% of Americans lived in areas of the country where same-sex couples could marry. There were 31 states where same-sex marriage was not permitted due to statutes passed by their state Legislatures or, more likely, by amendments to the state Constitutions passed by the voters.
Kansas was one of the approximately 28 states with the latter. It is called Amendment 1 -- a.k.a. the Kansas Marriage Amendment and was passed by 70% of the voters during 2005. It states:
"(a) The marriage contract is to be considered in law as a civil contract. Marriage shall be constituted by one man and one woman only. All other marriages are declared to be contrary to the public policy of this state and are void.
(b) No relationship, other than a marriage, shall be recognized by the state as entitling the parties to the rights or incidents of marriage." 1
In order to understand developments in Kansas, it is necessary to first observe events that happened in two nearby states.
The 10th U.S. Circuits Court of Appeals has jurisdiction over six states in the Mid-west and in the Mountain Region of the Western U.S. Kansas is one of the states. The others are Colorado, New Mexico, Oklahoma, Utah, and Wyoming.
- During 2014-JUN, a three-judge panel in the 10th Circuit Court upheld a Utah District Court decision legalizing SSM in that state. Utah appealed that ruling to the U.S. Supreme Court on AUG-05. More details.
- During 2014-JUL, a three-judge panel of the same Circuit Court upheld an Oklahoma District Court decision legalizing SSM in that state. The decision was appealed to the U.S. Supreme Court on AUG-06. More details.
Both of these rulings were stayed so that same-sex couples could not actually obtain marriage licenses and be married.
Both the 4th Circuit Court on the East coast and the 7th Circuit Court of Appeals in the Lake Michigan area also had a same-sex marriage case. Media commentators at the time debated what the response of the U.S. Supreme Court would be. The Justices could grant certiorari -- decide to accept an appeal -- of none of the cases, of one case, or of a group of cases. The near universal consensus was that the high Court would select one or two cases, announce their decision to grant certiorari in 2014, hold hearings in the Spring of 2015, and announce their ruling in late 2015-JUN. Commentators speculated whether the high court's eventual decision would make marriage available to same-sex couples across the entire country. They did just that in a previous marriage-related case, Loving v. Virginia, during 1967. The high court then made interracial marriages available throughout the U.S. At the time, 72% of adults in the U.S. opposed
interracial marriage. Also, 48% felt that marrying a person of another race should
be prosecuted as a criminal act. In comparison, a majority of about 55% of adults currently favor same-sex marriage.
2014-OCT-06: The surprise decision by the U.S. Supreme Court that directly affected Utah, Oklahoma and three other states:
This time, the U.S. Supreme Court marched to a different drummer.
On OCT-06, the high Court announced that it would not grant certiorari to any of the four lawsuits from three Circuit Courts of Appeals. 2 This included lawsuits from Utah and Oklahoma which are under the juridsiction of the 10th Circuit Court of Appeals. Other states in this Circuit Court are Kansas, along with Colorado, New Mexico, and Wyoming.
With the stroke of a pen, same-sex marriage thus became final and the stays were lifted in all five states directly involved in the four lawsuits: Indiana, Oklahoma, Utah, Virginia and Wisconsin
Some minor housekeeping tasks were quickly cleaned up, and same-sex couples all five states were able to start purchasing their marriage licenses, either on Monday, OCT-06 or -- in the case of residents of Indiana -- on the next day.
Having same-sex marriage suddenly come to five additional states had never happened before in U.S. history. Same-sex couples were then able to marry in any of 24 states or the District of Columbia. This was very close to forming a majority of jurisdictions in the U.S. with marriage equality.
Reactions by the Lesbian, Gay, Bisexual and Transgender community (LGBT) were mixed. There was much joy that marriage equality had come to loving, committed couples in five more states. The Internet was flooded with pictures of many happy couples. Some were holding their marriage licenses; others were getting married; still others were kissing. But most in the community were also saddened that there was now no possibility that the Supreme Court would rule marriage by same-sex couples to be legal across the entire country in mid-2015.
Religious and social conservatives were generally shocked at this sudden development. There were many references to the out of control federal court system, lawless courts, rogue judges, and to courts, Attorneys General, and Governors ignoring the will of the people. The latter was a reference to amendments to state constitutions that had banned marriage equality and were now found unconstitutional because they violated the due process and/or the equal protection clauses of the 14th Amendment to the U.S. Constitution. There were calls for Congress to initiate a new amendment to the U.S. Constitution so that these two clauses would no longer apply to marriages. That would allow the voters in individual states to amend their state constitution to ban marriage for any group that was disfavored by a simple majority of voters, and have their amendments found constitutional by the courts. This is called the "tyranny of the majority." Preventing that was a major concern of the founding fathers of the U.S.
But the affects of the U.S. Supreme Court's decision on OCT-06 went far further than directly affecting five states: Indiana, Oklahoma, Utah, Virginia, and Wisconsin. It also indirectly affected six more states, including Kansas.
When a ruling of a Circuit Court becomes final, it normally becomes applicable to all of the other states under the jurisdiction of that Circuit Court. This would imply that same-sex couples in six other states with same-sex marriage bans, who were also under the jurisdiction of the 4th, 7th, and 10th Circuit Courts, should be allowed to marry. These states are Kansas, as well as Colorado, North Carolina, South Carolina, West Virginia, and Wyoming. These will take a bit of time to sort out, because some of the legislators, Attorneys General and/or Governors in these states are strongly opposed to marriage equality. To further complicate matters, mid-term elections were only a few weeks away when the U.S. Supreme Court denied the appeals. If Republican Attorneys General and/or Governors didn't resist marriage equality coming to their state, they could lose significant support from conservative Republican voters.
The ripple effect of the Supreme Court's decision of OCT-06 was a game-changer, It impacted five states directly. It either has or is expected to bring marriage equality to six other states indirectly. It is also expected to influence additional states as various federal courts take notice of the trend towards marriage equality in their own rulings elsewhere in the country.
As of OCT-24, only the government of Kansas was left resisting the decision of the Supreme Court by tenaciously defending their same-sex marriage bans.
How six states, including Kansas, became affected by the U.S. Supreme Court's decision:
When, a decision by a federal Circuit Court of Appeals becomes final for one state, it may or may not also affect other states under the jurisdiction of the same Circuit Court.
For example, consider an environmental lawsuit that originated in Utah and involves a species of fish found only in large salt water lakes. A ruling by the 10th Circuit Court of Appeals that became final would directly affect Utah. However, it would not significantly affect the other five states under the jurisdiction of the 10th Circuit Court of Appeals: Colorado, Kansas, New Mexico, Oklahoma, or Wyoming -- because they have no large salt lakes within their borders.
However, since in this case, the lawsuits that originated in Oklahoma Utah involved marriage equality, then it would probably affect marriage laws in the other five states over which the 10th Circuit Court has jurisdiction. This is because there is no real difference among same-sex couples in these states:
- Since about 5% of the newborns in every state will grow up to find that they are gay or lesbian, and
- Since about another 5% of newborns in every state will find out later in life that they are bisexual, and
- Since most people are social beings and seek out a loving, committed relationships with another person,
- Then, a small but significant minority of people in every state will fall in love with a member of the same sex, and want to make a lifelong commitment by marrying that person.
Thus the same-sex marriages in Utah and Oklahoma are identical to marriage equality in the other five states under the jurisdiction of the 10th U.S. Circuit Court of Appeals.
It is probable that the 10th Circuit Court's final decisions on marriage equality in Utah and Oklahoma will also be found to be binding on Kansas, as well as Colorado, and Wyoming. (It would also apply to New Mexico except that this state has already legalized same-sex marriage.)
For the same reasons, it was probable that same-sex marriage would be legalized all states handled by the 4th Circuit Court of Appeals in the Eastern U.S., and the 7th Circuit Court of Appeals in the midwest.
When the smoke clears, most expect that the U.S. Supreme Court's decision on OCT-06 will have increased the number of states attaining marriage equality from 19 to about 30.
Many religious and social conservatives in Kansas undoubtedly believe that this indirect approval of marriage equality is unfair to them. It will happen simply because Kansas is under the jurisdiction of the 10th Circuit Court of Appeals. When the boundaries of the 8th and 10th Circuit Courts of Appeals were drawn many decades ago, Kansas could have easily ended up in the 8th Circuit Court. Then, Kansas would have been unaffected by the decision by the 10th Circuit Court in the Utah and Oklahoma case.
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
- "Kansas Marriage Amendment (2005),"Ballotpedia, at: http://ballotpedia.org/
- "High court ruling may lead to gay marriage in 30 states," USA Today, 2014-OCT-06, at: http://www.usatoday.com/
- "Kansas Miscellany," Public Policy Polling, 2014-FEB-24, at: http://www.publicpolicypolling.com/
Copyright © 2014 by Ontario Consultants on
Originally published: 2014-OCT-11
Last updated 2014-OCT-26
Author: Bruce A Robinson