Kansas Supreme Court opens door to more same-sex marriages

TOPEKA, Kan. - The Kansas Supreme Court cleared the way Tuesday for additional same-sex marriages in the state's most populous county while declaring that it would defer to the federal courts on whether Kansas' ban on same-sex marriages is constitutional.

The Kansas court also declined to say whether all of the state's 105 counties fall under a U.S. Supreme Court order last week blocking the state from enforcing laws and a provision in its constitution against same-sex marriage. The nation's highest court acted in a lawsuit filed by the American Civil Liberties Union over the denial of marriage licenses to lesbian couples in two counties.

Since the Supreme Court decision, gay couples have obtained marriage licenses and wed in at least a few counties, but not in those where the chief state district court judges were blocking them. In Kansas, district court clerks issue marriage licenses after a mandatory three-day waiting period.

The inconsistency appeared likely to continue. Kansas Attorney General Derek Schmidt said in a statement that the state court's decision leaves it to the federal courts and local state judges to decide whether marriage licenses are issued to same-sex couples.

"Because a provision in the Kansas Constitution is at peril, the state of Kansas will continue its defense in federal court as long as a defense is properly available," Schmidt said.

But Tom Witt, executive director of the gay-rights group Equality Kansas, said the Kansas Supreme Court is telling lower-court judges it won't stop them if they authorize same-sex marriage licenses.

"It's yet another step in the right direction toward full marriage equality," Witt said.

The Kansas Supreme Court lifted its hold on licenses to same-sex couples in Johnson County, home to affluent Kansas City suburbs. The chief judge of its district court authorized such licenses last month after the U.S. Supreme Court declined to hear cases from three federal appeals courts that had overturned same-sex marriage bans. Schmidt then went to court to stop the Johnson Count marriages.

The Kansas court said it would hold off on further review of Schmidt's petition until the U.S. Supreme Court resolves the issue. But the Kansas court also said Johnson County District Judge Kevin Moriarty "was within his jurisdiction" to consider federal court decisions striking down gay-marriage bans in other states.

In its order signed by Chief Justice Lawton Nuss, the Kansas court also said there's no reason to keep the hold on same-sex marriage licenses in place in Johnson County when the U.S. Supreme Court has authorized them elsewhere in the state.

Schmidt, recently re-elected by a 2-to-1 margin, has justified his defense of the gay-marriage ban by noting that voters overwhelmingly approved adding the policy to the state constitution in 2005.

The attorney general also has said the U.S. Supreme Court order in the ACLU lawsuit applies only in Douglas County in northeast Kansas and Sedgwick County, home to Wichita in south-central Kansas, because no other court clerks were defendants. The ACLU contends the order applies statewide.

The Kansas court said the U.S. Supreme Court decision "is not as localized as the State argues" but declined to spell out its scope. The Kansas court also refused to set a single rule for all counties in handling marriage licenses for same-sex couples, saying state courts don't issue advisory opinions.