What's Going On in Kansas?
Marriage is has started in some Kansas counties, but not in others. It's currently unclear exactly how legal those marriages are. Various lawsuits remain unresolved, and state officials have refused to recognize the licenses that have been issued so far. But the state in early December began issuing gender-neutral marriage forms.
In November, a U.S. District Court judge ruled that the state must stop enforcing its ban on marriage for gay and lesbian couples. Judge Daniel D. Crabtree also stayed his decision so that state officials could appeal to the 10th Circuit. For its part, the 10th Circuit has declined to hear the state's request for a rehearing. Officials can now petition the U.S. Supreme Court as a last resort.
In addition, there's also a case pending before the State Supreme Court. Further action in that case, Nelson v. Kansas Department of Revenue has been postponed indefinitely, with the court waiting for a final federal decision, according to the Wichita Eagle.
Kansas will be the last state in the 10th Circuit where same-sex couples gain the freedom to marry. In the past year, gay and lesbian couples have met with considerable success in the 10th Circuit, which includes Kansas, Utah, Oklahoma, New Mexico, Colorado, and Wyoming. On October 6 the U.S. Supreme Court let stand a ruling from the 10th Circuit Court of Appeals that invalidated marriage bans in Utah and Oklahoma, leading to the swift end of bans in neighboring states as well. Colorado began issuing licenses to same-sex couples October 7, and Wyoming began marriages October 21. New Mexico has had marriage equality since last December.
What Happens Next?
Now that the 10th Circuit has declined to hear the federal case, officials will likely petition the U.S. Supreme Court. But there is a near-unanimous agreement among federal courts that marriage bans are unconstitutional. In nearly-identical cases, the Supreme Court has denied petitions from other states, so it's likely that the lower court ruling will stand. Once that happens, the state will be compelled to recognize marriage equality. What's more, the Supreme Court already refused to delay the start of marriage equality in the Sunflower State, making it even less likely the high court would rule in favor of the state's Republican leadership.
There's a possibility that the state might simply refuse to go along with the order. Kansas officials have been unusually persistent in blocking marriage from starting, and could concoct a creative justification for delaying the start of weddings. But their options for doing so would be few, and their chances of long-term success nonexistent.
How Do Kansans Feel About Marriage?
As in other traditionally conservative states, support for marriage equality has climbed quickly in the state, but it remains below 50 percent in recent polls.
The most recent survey, conducted in October by Public Policy Polling, found that 44 percent of voters favor marriage equality, with 49 percent opposed. That's a significant increase from a February 2013 survey by PPP, in which marriage had 39 percent support and 51 percent opposition.
When voters are able to choose between marriage and civil unions for gay couples, they tend to favor marriage. In the October poll, when civil unions were presented as an option, 41 percent chose marriage, 30 percent chose civil unions, and just 25 percent thought there should be no recognition for same-sex couples at all. In the 2013 survey, 34 percent favored no recognition.
Kansas voters had an opportunity to weigh in on marriage at the ballot in 2005, with about 70 percent supporting a ban written into the state's constitution. That followed a statutory ban approved overwhelmingly by the legislature in 1996 — the state Senate vote was 39-1.
Can Gay and Lesbian Couples Get Married in Kansas?
Only in certain counties. Some counties are refusing to issue licenses, and others have made no indication one way or another whether licenses will be made available. Statewide LGBT organization Equality Kansas has a current directory of which counties are and are not issuing marriage licenses to same-sex couples.
In addition, the state is currently refusing to recognize the licenses issued to gay and lesbian couples. It's impossible to say with certainty whether the licenses issued so far are completely legally valid, though there's no indication that they aren't. The state's stance has been highly unusual and unpredictable, which has left many couples in a legal gray area. The American Civil Liberties Union, representing couples seeking the freedom to marry, has amended its suit with a provision seeking to force the state to recognize same-sex marriages that have taken place.
What Are the Arguments for Marriage Equality?
The federal case in question, Marie v. Moser, is unlike litigation in neighboring Utah and Oklahoma. Those cases started from scratch, establishing a right to marry in their individual states with no direct precedent offered by previous 10th Circuit cases. In contrast, the Kansas case was filed only after the Utah and Oklahoma cases were won, and the U.S. Supreme Court allowed marriage to stand in those states and three others.
But the arguments in the Kansas case are similiar to other marriage cases in other states. The plaintiffs argue that the marriage ban violates the Equal Protection and Due Process clauses of the U.S. Constitution, and imposed "profound harms." They also contend that the ban "is not even rationally related to a legitimate governmental purpose."
What Are the Arguments Against Marriage Equality?
It's fairly common for state officials to defend marriage bans, even when precedent indicates that they're sure to lose. But the arguments in Kansas are particularly weak and almost completely identical to the arguments that have lost in every other federal appeals court in the country. Attorney General Derek Schmidt has indicated that:
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.
It would appear that the sole distinction of this case is that Schmidt is asking for an en banc review — which the court denied in early December. Now, the state's last resort is to appeal to the U.S. Supreme Court, and hope that the same failing arguments used by antigay lawyers in other states will somehow persuade the Court that marriage bans are somehow a legitimate governmental interest, and that preventing same-sex couples from marrying somehow streamlines heterosexual reproduction.
This line of reasoning has met with a particuarly hostile reception in other courts and is unlikely to fare well.