WASHINGTON and WICHITA, Kansas (AP/KSN) — The U.S. Supreme Court said Wednesday that same-sex marriages can go ahead in Kansas.
The nation’s highest court denied the state’s request to prevent gay and lesbian couples from marrying while Kansas fights the issue in court. The state constitution includes a provision banning gay marriage, approved overwhelmingly by voters in 2005.
“So excited, still kind of an ohmigosh, it really happened, kind of day,” Donna DiTrani, one of the plaintiffs who filed the suit, said. “[I] didn’t ever know it would happen, just thought it would keep getting dragged on.”
“This might seem fast and quick for so many people for the last few weeks but the fact of the matter is a lot of people have been working on equality in Kansas for years,” Kerry Wilks, her partner and one of the other plaintiffs, added.
However, Kansas’ emergency appeal was closely watched to see if the court would change its practice following last week’s appellate ruling upholding anti-gay marriage laws in Kentucky, Michigan, Ohio and Tennessee. Those cases now are headed to the Supreme Court, and the gay marriage issue nationwide could be heard and decided by late June.
The Supreme Court last month declined to hear cases from three appeals courts that had overturned gay marriage bans. Kansas, South Carolina and Montana all have refused to allow gay couples to obtain marriages licenses despite rulings from federal appeals courts that oversee them.
Kansas went to the Supreme Court after the American Civil Liberties Union sued on behalf of two female same-sex couples. A judge issued an injunction barring the state from enforcing its gay-marriage ban, but the case hasn’t yet gone to trial.
The ACLU says Kansas’ ban violates the couples’ constitutionally protected rights to due legal process and equal legal protection. Gay-rights advocates saw the Supreme Court’s action Wednesday as another sign they’re likely to ultimately prevail.
“Now, this is a day to celebrate,” said Tom Witt, executive director of the gay rights group Equality Kansas.
Still, Kansas Attorney General Derek Schmidt maintains the ruling applies only in Douglas and Sedgwick counties, because the ACLU’s lawsuit was prompted by judges’ orders there.
Legal analysts say it is important to note that the 7-2 ruling only overrules the stay on the federal court injunction blocking the state’s constitutional ban on same-sex marriage, while the case is awaiting hearing in the 10th Circuit Court of Appeals in Denver.
“But while that decision proceeds, Kansas authorities must issue marriage licenses to same-sex couples,” legal analyst Dan Monnat said.
The ACLU contends the decision applies in all 105 counties, but attorney Doug Bonney acknowledged some court clerks could resist.
A federal district judge last week blocked the state from enforcing its ban, saying it was in keeping with an earlier ruling by a federal appeals court that struck down bans in Oklahoma and Utah.
The judge’s ruling was supposed to go into effect Tuesday, but Justice Sonia Sotomayor temporarily put it on hold while the high court reviewed the case.
Justices Antonin Scalia and Clarence Thomas would have sided with the state.
The legal situation was complicated in Kansas because state Attorney General Derek Schmidt filed his own case with the Kansas Supreme Court, seeking to block marriage licenses for gay couples. The Kansas court blocked further licenses while it reviewed the case and its order is still in effect, making it unclear how the U.S. Supreme Court’s decision Wednesday will be applied in individual counties.
However, that proceeding would also be stayed pending action by the 10th Circuit, Monnat told KSN.
Schmidt’s case came after one county — prompted by the U.S. Supreme Court action last month — issued a license to a lesbian couple. The couple quickly wed, becoming the only known same-sex Kansas couple to do so.
Marriage licenses in Kansas are issued by district court clerks’ offices after a mandatory three-day wait.
Schmidt has promised to defend the state’s gay-marriage ban in court as long as he can, and fellow Republican Gov. Sam Brownback issued a statement suggesting he’s not giving up on defending the policy. Voters in 2005 overwhelmingly approved an amendment to the Kansas Constitution against same-sex marriage.
“I swore an oath to support the Constitution of the State of Kansas,” Brownback said in a statement. “I will review this ruling with the attorney general and see how best we continue those efforts.”
Gay marriage is legal in 32 other states. In Missouri, a federal judge in Kansas City and a state judge in St. Louis each declared its ban unconstitutional, and gay-rights advocates urged the state’s attorney general not to appeal.
The Supreme Court on Oct. 6 refused to hear appeals from five states seeking to preserve their bans following adverse federal appeals court rulings. The states included Virginia, under the 4th U.S. Circuit Court of Appeals with South Carolina, and Oklahoma and Utah, which are with Kansas in the 10th Circuit.
Wednesday’s two-sentence order noted conservative Justices Antonin Scalia and Clarence Thomas would allow Kansas to continue enforcing its gay-marriage ban.