Decision could invalidate Kansas ban on gay marriage
By Dion Lefler
By Dion Lefler
The Wichita Eagle
(MCT) — In a decision that could ultimately invalidate Kansas' constitutional prohibition on gay marriage, a federal appeals court panel in Denver ruled Wednesday that banning gay marriage is unconstitutional under federal law.
But gay-rights supporters in Kansas say don't order a wedding cake just yet.
The three-judge panel of the 10th U.S. Circuit Court of Appeals that ruled Utah's ban on gay marriage is invalid also put a stay on its order until appeals are heard. Utah's attorney general immediately announced he'll challenge the decision, although he had not decided whether to seek review by the full appeals court or take the appeal straight to the Supreme Court.
Kansas is under the jurisdiction of the 10th Circuit Court, so rulings there are binding here as well.
The majority opinion by Judge Carlos Lucero came down firmly on the side of gay marriage, turning aside Utah's arguments that it could interfere with traditional marriage, adversely affect child rearing and raise the potential for civic strife.
"We hold that the Fourteenth Amendment protects the fundamental right to marry, establish a family, raise children, and enjoy the full protection of a state's marital laws," Lucero wrote.
A dissenting opinion filed by Judge Paul Kelly Jr. argued that the court was overstepping its bounds.
"We should resist the temptation to become philosopher-kings, imposing our views under the guise of constitutional interpretation of the Fourteenth Amendment," Kelly wrote.
David Brown, a Lawrence lawyer representing gay plaintiffs in a Kansas case, called the circuit ruling "a great decision." But he also cautioned that the automatic stay on enforcement could mean years of waiting for a final answer.
Brown represents two same-sex couples who are challenging Kansas regulations requiring them to file taxes as singles, although they were legally married in other states.
"If it were in effect today, I think it would make all the (legal questions) in my case moot," Brown said.
While his case doesn't directly confront the ban on gay marriage in Kansas, Brown says the circuit decision upholds the heart of his argument, that "one state cannot unmarry people who are legally married in another state."
In 2005, the Kansas Legislature passed and voters — by a 70-30 margin — approved Amendment 1. That added language to the state Constitution affirming that "marriage shall be constituted by one man and one woman only" and all other marriages are void.
The amendment also said that no other relationships would be entitled to the rights and privileges that go along with being married, a hedge against the possibility of "civil union" arrangements for gay couples.
U.S. Rep. Tim Huelskamp, R-Fowler, wrote the Kansas amendment and introduced a similar federal proposal in Congress. He could not be reached for comment, but issued a statement criticizing the Denver court.
"Citizens in Utah, Oklahoma, Colorado, in addition to my home state of Kansas, exercised their clear power and authority by overwhelmingly passing constitutional protections for traditional marriage," Huelskamp said in the statement. "As the author of the Kansas Marriage Protection Amendment, I am incensed that two lawyers (the judges) in Denver, Colorado believe they can overrule 70 percent of Kansas, plus strong majorities in Utah and Colorado.
"In typical liberal fashion, (when) those who seek to destroy marriage can't win in the court of public opinion, they seek to impose through unelected and unaccountable judges with lifetime appointments."
The judges addressed that issue and ruled that the popularity of Utah's anti-gay-marriage amendment was beside the point, because it interferes with basic rights of a minority.
"We may not deny (gay couples) relief based on a mere preference that their arguments be settled elsewhere," the ruling said. "Nor may we defer to majority will in dealing with matters so central to personal autonomy. The protection and exercise of fundamental rights are not matters for opinion polls or the ballot box."
Thomas Witt, executive director of the gay-rights group Kansas Equality Coalition, said the ruling and about a dozen others in lower courts are showing that attitudes toward gay marriage are changing dramatically.
Gay marriage is now legal in 19 states and the District of Columbia. Last year, the Supreme Court struck down key provisions in the federal Defense of Marriage Act, in essence extending federal benefits to same-sex married couples.
Witt said he doubts Kansas Amendment 1 would even make it onto the ballot in today's more tolerant atmosphere. He pointed to the state Legislature's rejection this year of a bill that would have allowed private businesses and government officials to refuse service to gay couples if homosexuality conflicts with their religious beliefs.
The bill passed the House, but died in the Senate after strong public pushback.
"People have learned that the world is not going to come to an end because their (gay) neighbors down the street got married," Witt said. "The sun still rises and the tide still comes in."