Kansas: Is No Marriage News Good Marriage News?

Supreme Court and same-sex marriage watchers were anxiously expecting Justice Sotomayor to issue an order lifting the stay on same-sex marriage in Kansas Tuesday. What’s going on?

Last month, after the Supreme Court refused to review any same-sex marriage case, the State of Kansas slowly allowed same-sex couples to apply for marriage licenses. Thanks to a three-day waiting period and mass confusion, only one couple actually married before the Kansas Supreme Court intervened and refused to allow any more marriages.

Then, on Election Day, a federal judge struck down Kansas’ ban on same-sex marriage. Judge Daniel Crabtree placed a stay on his ruling through November 11 – yesterday – barring any stays from a higher court.

But on Monday, Kansas appealed to the Supreme Court, urging Justice Sonia Sotomayor to place a stay on Judge Crabtree’s ruling that the State must allow same-sex couples to marry. Justice Sotomayor within minutes agreed to a stay, and ordered Kansas and the ACLU to submit briefs on their positions by 5:00 PM EST Tuesday.

In response, the ACLU told the Court that any delay harms families headed by same-sex parents.

“While this case remains pending in this Court, children will be born, people will die, and loved ones will fall unexpectedly ill,” the ACLU noted. “The substantive legal protections afforded by marriage can be critical, if not life-changing, during such major life events and personal crises.”

In his brief, Attorney General Derek Schmidt claimed Kansas will “suffer irreparable harm to their sovereign immunity” should same-sex marriage be allowed.

Brad Cooper at the Kansas City Star reports “University of Richmond law professor Carl Tobias thinks the Supreme Court will side against the ban.”

The Supreme Court already let stand a 10th Circuit Court ruling striking down gay marriage bans in Oklahoma and Utah. He is doubtful that the court will reverse course from an Oct. 6 ruling that upheld the appeals court’s decision.

“It may be a long shot,” Tobias said of the state’s appeal. “The attorney general is wasting a lot of time, money and effort, and I don’t think it’s going to yield anything.”

But Justice Sotomayor’s stay on Monday did not mention when she would make any decisions, just when briefs were due.

So, for now, same-sex couples wait.

And wait.

 

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