If you're confused by the legal status of marriage in Kansas right now, you're not alone. Legal analysts, state officials, and more than 100 county clerks charged with issuing state marriage licenses are grappling with how to proceed after the Supreme Court lifted a temporary stay that allowed the state to continue defining marriage for itself.
On Wednesday afternoon, a divided court effectively allowed gay “marriage” to go forward in the state of Kansas. The three-sentence-long document noted, “Justice [Antonin] Scalia and Justice [Clarence] Thomas would grant the application for stay.” But what happens next is far from clear.
Justice Sonia Sotomayor granted the state of Kansas a temporary exemption in the case of two lesbian couples who wanted to obtain marriage licenses, Marie, et al., v. Moser, et al. U.S. District Judge Daniel D. Crabtree, an Obama appointee, ruled in their favor and ordered that marriage licenses be distributed to homosexuals beginning on Tuesday. Sotomayor momentarily delayed the order and asked the American Civil Liberties Union (ACLU) to respond to the state's arguments.
The ACLU responded by saying, “While this case remains pending in this Court, children will be born, people will die, and loved ones will fall unexpectedly ill.” They added that the “substantive legal protections afforded by marriage can be critical, if not life-changing, during such major life events.”
The deeply religious state's leadership reacted with a mix of outrage and determination. Congressman Timothy Huelskamp, who represents much of western Kansas, tweeted:
#SCOTUS undermines will of KS voters and undermines KS constitution. #JudicialActivismhttps://goo.gl/pWbbxP
— Cong. Tim Huelskamp (@CongHuelskamp) November 13, 2014
Gov. Sam Brownback promised to work with Schmidt to uphold marriage. “I swore an oath to support the Constitution of the State of Kansas,” Gov. Brownback said. “I will review this ruling with the attorney general and see how best we continue those efforts.” Brownback, who won an upset re-election last week, stressed his fidelity to traditional marriage in the waning days of the campaign.
Yet homosexual activists rejoiced at the legal imposition. “Now, this is a day to celebrate,” said Tom Witt, executive director of Equality Kansas, an organization dedicated to redefining marriage and normalizing homosexuality.
Regardless of their political views, everyone agrees on one thing: Allowing same-sex “marriage” to go forward has thrown the state's county clerks into confusion.
Differences of interpretation pose one problem. The ACLU, which brought the case, believes the court case applies to all Kansas' 105 counties. Kansas Attorney General Derek Schmidt believes the order is limited to only two: Douglas and Sedgwick counties, where the plaintiffs sued.
“Until I hear something from the Kansas Supreme Court, I'm not issuing any marriage licenses,” Johnson County Court Clerk Sandra McCurdy told the Associated Press.
Potentially conflicting rulings from within Kansas are another. The ACLU filed suit with Crabtree approximately one hour after Attorney General Schmidt filed another case before the Kansas Supreme Court. That case, which is still pending, could uphold state law, further muddying the legal waters.
At stake is the fate of the voter-approved Kansas Marriage Amendment, which defines marriage as a “civil contract between one man and one woman only.” Kansas voters adopted the amendment in 2005 with a whopping 70 percent of the vote.
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Kansas is under the jurisdiction of the Tenth Circuit Court of Appeals, which has struck down marriage protection amendments in other states. So far, the Supreme Court has refused to hear appeals brought by states seeking to protect marriage, although the Sixth Circuit Court of Appeals' ruling may open the door for a new hearing.
With yesterday's motion, same-sex “marriage” has been imposed in 33 states, 23 by judicial fiat. A total of 12 states and the District of Columbia have democratically passed laws to change the meaning of marriage, including two states where marriage had already been imposed by court order (California and Connecticut). In only three states – Maryland, Maine, and Washington – have voters directly chosen to redefine marriage by referendum.