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Gay Couple Says Marriage Decision Delay Is Election-Year Politics

CJ Janovy

A federal judge on Friday did not rule on a case filed by two gay couples who want marriage licenses in Kansas. One of the couples blamed the state's delay on election-year politics.

The case, originally filed Oct. 10, was heard in open court by U.S. District Judge Daniel Crabtree, who did not say when he would announce a decision.  The couples are seeking marriage licenses, which would, in effect, overturn the Kansas gay marriage ban.

Same sex marriage advocates argue that Kansas should have started issuing licenses in June when the 10th Circuit Court of Appeals, a circuit that includes Kansas, overturned similar bans in Oklahoma and Utah, saying marriage was a fundamental right.

Kerry Wilks, who with her partner Donna DiTrani filed the case after they were denied a license in Sedgwick County, blamed the delay on Gov. Sam Brownback, who supports the state's gay marriage ban and who is in a tight race against Democrat Paul Davis.

“There is absolutely no reason why we should not be following the law of the land,” Wilks said, referring to higher court decisions that same-sex marriage bans such as the one in Kansas are unconstitutional.

“Look me in the eyes, look at my human face,” Wilks said. “We are people. We want to get married. We want the same protections as every other Kansas citizen.”

Assistant Attorney General Steve Fabert defended the ban, saying the federal court had no right to meddle in state marriage laws.

Kansas is different from Utah and Oklahoma, he said, because it has a “double track marriage system,” one that allows for licenses and common law unions.

Seemingly to open the door for common law marriages for same sex couples, Fabert implied that gay couples could use this second marriage track. He told Crabtree that he should wait until the Kansas Supreme Court rules on a similar case, which involves a Johnson County judge issuing a marriage license earlier this month.

“To suggest the state of Kansas can’t have a say (on the marriage law) … is truly remarkable,” Fabert said.

The common-law marriage argument is a “red herring,” said Doug Bonney, legal director of the ACLU of Kansas, who is representing the gay couples. The issue is a federal constitutional question and a federal court should rule on it, he said.

Saying poetry conveys the importance of the marriage-equality issue better than dry legal language, Bonney opened his arguments with the last stanza of Walt Whitman’s “Song of the Open Road.” The Kansas marriage ban deeply impacts same-sex couples and the state should start issuing licenses quickly, he said.

“The law forbids these committed loving couples from giving to each other themselves,  their hands, their lives, their loves,” Bonney said.

Three states, including Kansas, are denying gay marriage licenses despite rulings from federal appeals courts.

I’m a veteran investigative reporter who came up through newspapers and moved to public media. I want to give people a better understanding of the criminal justice system by focusing on its deeper issues, like institutional racism, the poverty-to-prison pipeline and police accountability. Today this beat is much different from how reporters worked it in the past. I’m telling stories about people who are building significant civil rights movements and redefining public safety. Email me at lowep@kcur.org.
A free press is among our country’s founding principles and most precious resources. As director of content-journalism at KCUR, I want everyone in our part of America to know we see them and we’re listening. I work to make sure the stories we tell and the conversations we convene reflect our complex realities, informing and inspiring all of us to meet the profound challenges of our time. Email me at cj@kcur.org.
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