TOPEKA, Kan. (AP) — The U.S. Supreme Court on Nov. 12 said same-sex marriages can go ahead in Kansas in a decision that the state insists applies to only two counties.
Separately on Nov. 12, a federal judge struck down South Carolina’s ban on gay marriage as unconstitutional.
The nation’s highest court denied a request from Kansas to prevent gay and lesbian couples from marrying while the state fights the issue in court. The order is consistent with how the justices have handled recent requests from other states that have sought to keep their bans in place while they appealed lower court rulings in favor of gay and lesbian couples.
However, Kansas’ emergency appeal was closely watched to see if the court would change its practice following last week’s appellate ruling upholding anti-gay marriage laws in Kentucky, Michigan, Ohio and Tennessee. Those cases now are headed to the Supreme Court, and the gay marriage issue nationwide could be heard and decided by late June.
The Supreme Court last month declined to hear cases from three appeals courts that had overturned gay marriage bans. Kansas, South Carolina and Montana all have refused to allow gay couples to obtain marriages licenses despite rulings from federal appeals courts that oversee them.
Kansas went to the Supreme Court after the American Civil Liberties Union sued on behalf of two lesbian couples. A judge issued an injunction barring the state from enforcing its gay-marriage ban, but the case hasn’t yet gone to trial.
The ACLU says Kansas’ ban violates the couples’ constitutionally protected rights to due legal process and equal legal protection. Gay-rights advocates saw the Supreme Court’s action Wednesday as another sign they’re likely to ultimately prevail.
“Now, this is a day to celebrate,” said Tom Witt, executive director of the gay rights group Equality Kansas.
Still, Kansas Attorney General Derek Schmidt maintains the ruling applies only in Douglas and Sedgwick counties, because the ACLU’s lawsuit was prompted by judges’ orders there.
The ACLU contends the decision applies in all 105 counties, but attorney Doug Bonney acknowledged some court clerks could resist.
The legal situation in Kansas is complicated by a separate case before the Kansas Supreme Court, which Schmidt filed last month. He persuaded the Kansas court to block marriage licenses for same-sex couples while his case is heard.
Schmidt’s case came after one county — prompted by the U.S. Supreme Court action last month — issued a license to a lesbian couple. The couple quickly wed, becoming the only known same-sex Kansas couple to do so.
Marriage licenses in Kansas are issued by district court clerks’ offices after a mandatory three-day wait.
Schmidt has promised to defend the state’s gay-marriage ban in court as long as he can, and fellow Republican Gov. Sam Brownback issued a statement suggesting he’s not giving up on defending the policy. Voters in 2005 overwhelmingly approved an amendment to the Kansas Constitution against same-sex marriage.
“I swore an oath to support the Constitution of the State of Kansas,” Brownback said in a statement. “I will review this ruling with the attorney general and see how best we continue those efforts.”
In South Carolina, state Attorney General Alan Wilson promised to appeal the ruling against his state’s ban from U.S. District Judge Richard Gergel. The judge put his order on hold until noon Nov. 20.
“Today’s ruling comes as no surprise and does not change the constitutional obligation of this office to defend South Carolina law,” Wilson said in a statement.
Gay marriage is legal in 32 other states. In Missouri, a federal judge in Kansas City and a state judge in St. Louis each declared its ban unconstitutional, and gay-rights advocates urged the state’s attorney general not to appeal.
The Nov. 12 two-sentence order from the Supreme Court noted conservative Justices Antonin Scalia and Clarence Thomas would allow Kansas to continue enforcing its gay-marriage ban.
