On Monday, the nation's highest court refused to take up appeals from five states seeking to preserve their gay marriage bans. Six other states — Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming — would be bound by those same appellate rulings that were put on hold.
Kansas Attorney General Derek Schmidt noted that, to date, no court has squarely decided whether the Kansas Constitution's prohibition of same-sex marriage is invalid and that the state will deal with any litigation as it comes. And Republican Gov. Sam Brownback, fighting a close re-election battle in which he needs conservative support, says the state should defend the ban.
"The people have spoken on this," Brownback said. "I don't know how much more you can bolster it than to have a vote of the people to put in the constitution that marriage is the union of a man and a woman."
Wyoming Gov. Matt Mead said the state's attorney general will also defend its constitution defining marriage between a man and a woman, and that the U.S. Supreme Court's refusal to hear appeals of gay marriage bans had no impact on a state case contesting that definition. South Carolina's attorney general said if a court specifically rules against that state's gay marriage ban, he will then decide how to proceed.
In liberal Colorado, which is also covered by the same 10th Circuit Court of Appeals as Kansas, gay marriage is now officially legal. Attorney General John Suthers said Tuesday that all of the state's counties must issue the licenses.
But in Kansas, it will likely take a federal court ruling directly about that state to change its gay marriage ban. The American Civil Liberties Union spent Tuesday reaching out to lawyers to join its federal challenge seeking an immediate court order blocking the ban, given the precedent in the 10th Circuit. It could be filed as soon as next week, said Doug Bonney, legal director of the ACLU of Kansas and Western Missouri.
Nationally, the ACLU plans to fight state bans from circuit court to circuit court, said staff attorney Joshua Black, noting Tuesday's decision in the 9th U.S. Circuit Court striking down Idaho and Nevada's bans.
In Kansas' Reno County, Julia and Regina Johnson were given the paperwork Tuesday to apply for a marriage license before a clerk called them hours later to say their application was denied. Prepared for the worst, the Hutchinson couple had been surprised that the clerk just scratched out the word "man" and said new forms hadn't been printed yet. The couple, who have six children, tried to absorb the news they had waited 16 years together to hear.
"It was wow — it sounds surreal," Julia Johnson said. "It was actually surreal for us."
Reno County Chief Judge Patricia Macke Dick later said she had no choice but to deny their license because the Kansas same-sex marriage ban has not specifically been overturned.
The only related lawsuit now in Kansas courts is one filed by two couples who married in other states and sued Kansas over tax treatment. Their case is being heard next month.
In Wyoming, three same-sex couples and the gay rights group Wyoming Equality have a lawsuit pending contesting the state's definition of marriage as solely between a man and woman. It is set for a hearing in December. An attorney for Wyoming Equality took issue with Mead's comment that the Supreme Court action had no impact on the state case.
"At the end of the day, the 10th Circuit's ruling is now the law in Wyoming, which means that same-sex couples now have the fundamental right to get married in Wyoming and the governor and the AG's office are trying to interfere with that right," said attorney James Lyman.
And by Tuesday afternoon, four Wyoming couples had filed a federal lawsuit against the governor, Laramie County Clerk Debbye Lathrop and other state officials seeking the immediate right to marry.
South Carolina's Attorney General Alan Wilson says no ruling has been made in a lawsuit by a same-sex couple legally married in Washington, D.C., who live in South Carolina, and that he was required to keep defending the state until a judge rules that the 4th U.S. Circuit Court of Appeals ruling applies to the South Carolina lawsuit.
"When those options are gone, we will have a discussion on how the state moves forward," Wilson said Tuesday.
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