Federal judge rules against Kansas's gay marriage ban

A federal judge on Tuesday moved to invalidate the same-sex marriage ban in Kansas, saying there was clear legal precedent from a federal appeals court. State officials have until Nov. 11 to file an appeal.

Tammy Ljungblad/The Kansas City Star/AP/FILE
Angela Schaefer, left, and partner, Jennifer Schaefer, hold an application for a marriage license at the clerk's office at the Johnson County Courthouse in Olathe, Kan., in October. A federal judge ruled Tuesday that Kansas's ban on same-sex marriage was unconstitutional.

A federal judge on Tuesday moved to invalidate the same-sex marriage ban in Kansas, saying clear legal precedent from a federal appeals court commanded that result despite support for the ban among many citizens of the state.

US District Judge Daniel Crabtree found that the state’s ban likely violated the constitutional rights of gay men and lesbians in Kansas to marry.

“Judging the constitutionality of democratically enacted laws is among the gravest and most delicate enterprises a federal court ever undertakes,” Judge Crabtree wrote in a 38-page decision. 

“But just as surely, following precedent is a core component of the rule of law,” he said. “When the Supreme Court or Tenth Circuit has established a clear rule of law, our court must follow it.” 

The judge issued a preliminary injunction blocking state officials from refusing to issue marriage licenses to same-sex couples. But he also said he would stay his ruling for one week, until 5 p.m. on Nov. 11, to give state officials time to file an expected appeal with the Tenth US Circuit Court of Appeals in Denver.

Judge Crabtree said the stay would also give Kansas officials time to prepare to honor his injunction and begin facilitating same-sex marriages, should the Tenth Circuit reject the appeal.

“On balance, the court concludes that a short-term stay is the safer and wiser course,” he said.

The action is not a surprise. Kansas is the last of the six states in the Tenth Circuit to continue to defend its same-sex marriage ban. Five other states in the circuit – Utah, Oklahoma, Colorado, New Mexico, and Wyoming – all recognize same-sex marriages performed in other states and are allowing such marriages in their own states. 

The New Mexico Supreme Court ruled earlier this year that the state constitution required recognition of such marriages. Same-sex marriage bans fell in the other states after the Tenth Circuit upheld lower court decisions striking down bans in Utah and Oklahoma.

Those two decisions established legal precedents within the entire Tenth Circuit early last month, when the US Supreme Court declined to take up either of those cases.

After the Supreme Court refused to hear the Tenth Circuit cases, two same-sex couples in Kansas sought to obtain marriage licenses. They were denied.

Lawyers with the American Civil Liberties Union took their case to Judge Crabtree. They asked the judge to temporarily block the state’s same-sex marriage ban, pending a trial.

The judge conducted a hearing last week.

The Kansas Supreme Court is also considering the state’s ban on same-sex marriages. That court has set a hearing for Nov. 6. 

Kansas Attorney General Derek Schmidt had asked Judge Crabtree to postpone his consideration of the case and defer to the Kansas courts on the issue.

In rejecting that request, Crabtree said the underlying issue presents federal constitutional questions that are squarely within the jurisdiction of a federal judge to decide.

Kansas officials also argued that the state’s same-sex marriage ban had been upheld in a 2001 state-court decision, and thus was not covered by any Tenth Circuit precedent.

Crabtree disagreed. He said federal courts are not bound by state court interpretations of federal constitutional issues. He added that federal courts must follow legal precedents established by the federal appeals court.

In weighing whether the court should issue the injunction, Crabtree said that competing considerations “collide head-on.”

“On one hand, it is always in the public interest to prevent the violation of a party’s constitutional rights,” he said. “On the other hand, the public interest values enforcement of democratically enacted laws.”

The judge added: “The latter value must yield though, when binding precedent shows that the laws are unconstitutional. In this setting, the public’s interest in enforcement must give way to the more profound and long-term interest in upholding an individual’s constitutional rights.”

According to the Williams Institute at the University of California, Los Angeles School of Law, there are an estimated 4,000 same-sex couples in Kansas.

According to the institute’s research, roughly half of those couples are expected to marry within the next three years. The institute also estimates that the 4,000 same-sex couples are currently raising more than 1,700 children in their homes. 

The case is Kail Marie v. Robert Moser (14cv2518).

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