Kansas Marriage Ban Struck Down

On election day, a federal judge unsurprisingly struck down Kansas’ ban on same-sex marriage. The judge did issue a stay of his ruling for a week so that the state could appeal if it wanted to. And despite the fact that the 10th Circuit Court of Appeals has already overturned bans in two other states, they’re going to do so.

Judge Daniel Crabtree, in a written ruling, granted a preliminary injunction that had been sought by the ACLU of Kansas on behalf of two lesbian couples who had been denied marriage licenses in Sedgwick and Douglas counties. The injunction will prevent the state from enforcing the ban on same-sex marriage found in the Kansas Constitution.

However, marriages won’t begin immediately. Crabtree stayed the injunction until 5 p.m. on Nov. 11. Without the injunction, clerks may continue to deny marriage licenses to same-sex couples.

During a hearing last Friday, Kansas Assistant Attorney General Steve Fabert indicated he would appeal if the injunction was granted. It is possible a higher court could intervene and overturn the injunction.

The order is limited in scope, applying only to the clerks who denied licenses to the couples. However, Doug Bonney, legal director and chief counsel for the ACLU of Kansas, said its practical effect would be to allow same-sex marriage throughout the entire state.

“I’m elated of course. Not surprised by the stay, Judge Crabtree brought it up during the hearing last week, I think. I’m hopeful the state will decide its time to fold up this tent,” Bonney said.

Kansas Attorney General Derek Schmidt said in a statement he plans to appeal the ruling. Schmidt said a request for an appeal from the entire Tenth Circuit Court of Appeals was not made in cases that threw out Oklahoma and Utah’s gay marriage ban.

“The District Court recognized the weight of its decision to declare a provision of the Kansas Constitution in violation of the United States Constitution and thus unenforceable. Kansas appreciates Judge Crabtree’s willingness to delay his order while the state defendants file their appeal,” Schmidt said.

This is pure political pandering. Schmidt knows an appeal has zero chance of winning. He knows that the judge was only following two rulings the appeals court already handed down. He’s only appealing in order to pander to the anti-gay right wing, who care nothing at all for things like reality.

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  • chilidog99

    Unfortunately, the 6th circuit has overturned the lower court and ruled FOR the state bans.

    The majority opinion reads like a conservative application for a job as a SCOTUS justice, it is filled more with right wing talking points, than with reasoned legal analysis.

    So this will go to SCOTUS after all.

  • illdoittomorrow

    Moar fiscally conservative small gummint not interfering in peep’s lives, of course.

  • colnago80

    Re chilidog99 @ #1

    Not necessarily, the losing side could ask for an en banc hearing form the entire 6th Circuit.

  • John Pieret

    Unfortunately, the 6th circuit has overturned the lower court and ruled FOR the state bans.

    While it is impossible to predict, I doubt the 6th Circuit’s decision will have much of an impact on whether or not the 10th grants an en banc hearing. For over a year now, Federal appellate judges have had to bite the bullet SCOTUS refuses to. Now the 10th Circuit has an opportunity to return the favor by doing nothing (always a safer course for a judge). My guess is that the 10th Circuit, like a great matador, will gracefully dodge the bull and let it head straight at SCOTUS.

  • whheydt

    The quotes from the Kansas AG look like he’s gunning for an en banc hearing from the 10th Circuit. Though as I understand it, he’s got to get through 3 judges from the circuit first, and allowing an en banc hearing is up to court.

  • abb3w

    Isn’t there a rule in Federal Civil Procedure, which allows sanctions when motions are filed only for futile delay?

  • gshelley

    And the Supreme Court lifted the stay. Scalia and Thomas openly dissented, presumably because they expect the Supreme Court to take up one of the cases and they now have an excuse to do so