Politics & Government

Judge orders Kansas to let gay couples marry, but stays order until Nov. 11

A federal judge has ruled that the state’s ban on same-sex marriage is unconstitutional, but gay and lesbian couples can’t marry just yet.

Judge Daniel Crabtree granted a stay on his order, which calls for county court clerks to issue same-sex couples marriage licenses, until Nov. 11, which will give the state time to appeal the case. However, the court that the state would appeal to – the 10th Circuit Court of Appeals – has already ruled state bans on same-sex marriage are unconstitutional.

When Wyoming, which like Kansas is part of the 10th Circuit, saw its ban ruled unconstitutional last month, state officials declined to appeal the matter. LGBT activists in Kansas are hoping that Kansas officials do the same.

"This is one more giant step down the round to marriage equality," said Thomas Witt, the executive director of Equality Kansas. "We thank Judge Crabtree for honoring the constitution and we call on Gov. Brownback and Attorney General Schmidt to do the same."

When arguing before Crabtree last Friday, however, Assistant Attorney General Steve Fabert said that the state already had plans to appeal should Crabtree issue a ruling overturning the ban.

Eileen Hawley, the governor’s spokeswoman, said that Gov. Sam Brownback "will review the ruling with the Attorney General and work to ensure an orderly judicial process in determining this issue and to avoid the confusion created by inconsistent judicial rulings."

Brownback has been outspoken in his support of the ban, which passed as a constitutional amendment by voters in 2005.

"As we have said before, the governor swore an oath to support the Constitution of the State of Kansas," Hawley said.

The Attorney General’s Office did not immediately respond with a comment of its own.

Two of the women challenging the ban live in Wichita.

"Donna and I are both thrilled to pieces that the judge did the right thing and ruled in our favor," said Kerry Wilks, who has been in a committed relationship with Donna DiTrani for five years.

Wilks said that the state appealing the case would be a "waste of taxpayers’ money."

"I’m still in shock," DiTrani said of the ruling. "It’s not over yet, but I think we’re getting very close to the end of the tunnel."

She said she was not expecting the ruling to come down on the same day as the election. The Kansas Supreme Court also will review the constitutionality of the state’s ban this Thursday, two days after the election. Fabert had asked the federal judge to defer to the state court.

Despite the favorable ruling, DiTrani said she’s not quite ready to celebrate.

"I think once the stay if lifted and we can actually get a marriage license in our hands then it will be real," she said.

Wilks teaches Spanish at Wichita State University and was on her way out the door to teach evening classes when reached by The Eagle.

"I’m going to celebrate by imparting knowledge which seems like a very fitting activity. I’ll be looking to going home and being with Donna after I teach," she said.

Crabtree’s ruling tore the Attorney General Office’s arguments apart.

Fabert had argued that the Kansas law differed from the bans in Oklahoma and Utah, which were ruled unconstitutional, because Kansas has a common law marriage system in addition to licensed marriages.

Crabtree ruled that the state’s ban violated the U.S. Constitution’s 14th Amendment, which guarantees equal protection under the law, and that the state’s argument actually proved this point.

"This argument, even if accurate, proves too much. On its best day, this argument contends that Kansas’ common law marriage alternative provides same-sex couples access to a separate but equal classification of marriage," Crabtree wrote. "That is, opposite-sex citizens can marry by either statutory or common law marriage while same-sex couples must confine their marriages to the common law alternative. Thus, defendants’ alternative way of looking at the same-sex ban still denies plaintiffs equal protection of Kansas’ marriage laws."

Crabtree, who was appointed to the bench by President Barack Obama, wrote that the "plaintiffs suffered an actual (‘in fact’) injury when the Clerks, acting on account of state law, refused to issue marriage licenses to plaintiffs."

Reach Bryan Lowry at 785-296-3006 or blowry@wichitaeagle.com . Follow him on Twitter: @BryanLowry3 .