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Federal Judge Says Kansas Must Allow Same-Sex Marriages, Puts Order On Hold

CJ Janovy

A federal judge today struck down Kansas’ law and constitutional amendment banning same-sex marriage, ruling they violated the 14th Amendment of the U.S. Constitution and handing a major victory to same-sex marriage proponents.

With the ruling, Kansas becomes the 33rd state in the country to allow same-sex unions. Almost all the federal courts that have ruled on the issue have found the bans on those marriages unconstitutional.

U.S. District Judge Daniel D. Crabtree ruled that he was bound by decisions handed down earlier this year by the 10th U.S. Circuit Court of Appeals in Denver. Those decisions found that Utah’s and Oklahoma’s similar laws and constitutional amendments prohibiting same-sex marriage were unconstitutional. The 10th judicial circuit encompasses the state of Kansas.

The 10th Circuit decisions held that the fundamental right to marry includes the right to marry a person of the same sex. Crabtree found that Kansas’ same-sex marriage ban “does not differ in any meaningful respect from the Utah and Oklahoma laws the Tenth Circuit found unconstitutional.”

The plaintiffs in the case were two couples, Kail Marie and Michelle Brown, who have lived together for 20 years, and Kerry Wilks and Donna DiTrani, who have lived together for five years. Both couples sought marriage licenses in their respective counties, Douglas and Sedgwick, and were turned down.

"The lead plaintiffs, Kail Marie and Michelle Brown, just a week or two ago celebrated their twenty-first anniversary, but all those years, they've been denied their fundamental right to get married to each other," said Doug Bonney, legal director of the ACLU of Kansas, who is representing the gay couples. "And now we have a ruling that says they can."

The couples sued in federal court, seeking a preliminary injunction declaring the laws in question unconstitutional and ordering state officials to issue marriage licenses to same-sex couples.

While issuing the injunction, Crabtree delayed its effective date to Nov. 11 to give the state the chance to appeal to the 10th Circuit.

"This is the victory we've been hoping for," said Thomas Witt, executive director of the advocacy group Equality Kansas, "but we still have another week, at least, to wait."

Late Tuesday afternoon, Kansas Attorney General Derek Schmidt said he would appeal Crabtree's decision.

"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," he said in a statement. 

While declaring Kansas' ban on same-sex marriage unconstitutional, Crabtree declined to rule on the plaintiffs' claim seeking to recognize same-sex couples married outside Kansas. Because neither had married outside the state, Crabtree ruled, they lacked standing to challenge that aspect of Kansas' same-sex marriage ban. 

Crabtree, however, rejected the state's argument that because a parallel case is pending in the Kansas Supreme Court, he should have abstained from issuing a decision. 

The Kansas high court is set to hear oral arguments on Thursday in the case, which involves a challenge by Schmidt to Johnson County District Judge Kevin Moriarty's order in October directing the court clerk to issue same-sex licenses.

Moriarty, who was appointed  by Gov. Kathleen Sebelius in 2004, is up for retention on Tuesday's election ballot. 

Dan Margolies has been a reporter for the Kansas City Business Journal, The Kansas City Star, and KCUR Public Radio. He retired as a reporter in December 2022 after a 37-year journalism career.
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