Same-sex marriage in Kansas

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Same-sex marriage became legal in the U.S. state of Kansas following the U.S. Supreme Court decision in Obergefell v. Hodges on June 26, 2015, which found the denial of marriage rights to same-sex couples unconstitutional. By June 30, all 31 judicial districts and all 105 Kansas counties were issuing licenses to same-sex couples or had agreed to do so. Kansas state agencies initially delayed recognition of same-sex marriages for purposes including but not limited to changing names, ascribing health benefits and filing joint tax returns, but began doing so on July 6.

The state had previously defined marriage in its Constitution as the union of one man and one woman and had by statute denied recognition to same-sex marriages from other jurisdictions. Before the Supreme Court resolved the issue, a series of lawsuits had challenged the state's policies with mixed success. In Marie v. Moser, U.S. District Judge Daniel D. Crabtree issued a preliminary injunction barring the Secretary of the Kansas Department of Health and Environment, Douglas County and Sedgwick County from enforcing Kansas's same-sex marriage ban on November 4, 2014. He temporarily stayed the injunction until November 11 to give state authorities time to appeal. On November 7, 2014, the Tenth Circuit Court of Appeals denied state officials' request for a stay pending appeal. On November 12, 2014, the U.S. Supreme Court denied the state officials' request for a stay pending the appeal of Marie. As the injunction in Marie was set to take effect, the Kansas Attorney General contended that Crabtree's preliminary injunction only applied to the two counties involved in the lawsuit, not statewide. The American Civil Liberties Union maintained that the injunction applied to all 105 of the state's counties. Some of the state district judges, who issue marriage licenses in Kansas, refused to authorize the issuing of marriage licenses to same-sex couples based on their own interpretation of the legal situation.

On November 18, 2014, the Kansas Supreme Court, acting in Schmidt v. Moriarty, allowed the licensing of same-sex marriages in the state's Tenth Judicial District, which covers Johnson County, to proceed. The court ruled that it was within the jurisdiction of Judge Kevin P. Moriarty, as chief judge of that district, to authorize the issuance of marriage licenses to same-sex couples based on his determination of the law. It left the issue of whether to license same-sex marriages to each judicial district.

Restrictions on same-sex unions[edit]

On April 4, 1996, the Kansas State Senate voted 39–1 in favor of a bill banning same-sex marriage and recognition of same-sex marriage performed outside of state. The Kansas House of Representatives also passed the bill. On April 11, 1996, Governor Bill Graves signed the bill into law.[1]

On January 20, 2005, the Kansas State Senate voted 28–11 in favor of Kansas Amendment 1, a constitutional amendment banning same-sex marriage and the "rights or incidents of marriage".[2] On February 2, 2005, the Kansas House of Representatives voted 86-37 in favor of the amendment.[3] On April 5, 2005, Kansas voters approved the amendment by a margin of more than 2 to 1.[4]

On January 26, 2017, Tom Witt, executive director of Equality Kansas, submitted two bills relating to marriage to the Kansas Legislature. HCR 5006 would repeal the state's constitutional ban on same-sex marriage and civil unions, and HB 2172 would replace statute references to "husband and wife" with "spouses".[5][6][7]

Lawsuits and recognition of some same-sex marriages[edit]

Nelson v. Kansas Department of Revenue[edit]

On December 30, 2013, private lawyers in Topeka filed a lawsuit in state court on behalf of two same-sex couples, Roberta and Julia Woodrick of Lawrence and Michael Nelson and Charles Dedmon of Alma, seeking recognition of their marriage licenses from other jurisdictions in order to be allowed to file joint state income tax returns.[8] The lawsuit is Nelson v. Kansas Department of Revenue and stems from the June 2013 Supreme Court ruling striking down part of the Defense of Marriage Act, after which federal Internal Revenue Service accepted joint income tax returns only if the couple's state of residence recognizes the marriage. The plaintiffs' attorneys in Nelson argue that the Kansas Department of Revenue and the Kansas Constitution's definition of marriage makes it impossible for the plaintiffs to file their state taxes honestly.[9]

Tenth Circuit Court of Appeals[edit]

The U.S. Supreme Court declined to hear two cases from the Tenth Circuit Court of Appeals on October 6, 2014. That left decisions that found Utah's and Oklahoma's bans on same-sex marriage unconstitutional as binding precedent on federal courts in Kansas. Legal experts expected Kansas to be required to allow same-sex marriage before long.[10]

Schmidt v. Moriarty[edit]

On October 8, Chief District Judge Kevin Moriarty of the state district court for Johnson County, the most populous in the state, directed the court's clerk to issue marriage licenses to same-sex couples.[11] A statement from Governor Sam Brownback said: "An overwhelming majority of Kansas voters amended the constitution to include a definition of marriage as one man and one woman. Activist judges should not overrule the people of Kansas." Kansas Attorney General Derek Schmidt said he was prepared for litigation and noted that the Kansas ban on same-sex marriage had not been invalidated in court.[12] Schmidt filed a lawsuit in the Kansas Supreme Court, Schmidt v. Moriarty, asking the court to order Moriarty to stop issuing the licenses.[13] Later that day, Kansas Chief Justice Lawton Nuss issued a temporary injunction suspending Moriarty's order authorizing the issuance of marriage licenses to same-sex couples "[i]n the interest of establishing statewide consistency" on the question of issuing licenses to same-sex couples, but the court allowed for the continued acceptance of applications for marriage licenses.[14]

On November 13, following a federal court decision striking down the state's same-sex marriage ban in Marie v. Moser, Judge Moriarty asked the court to lift its temporary stay and allow him to issue licenses to same-sex couples.[15] On November 18, the court ruled that Judge Moriarty was "within his jurisdiction" in ordering the issuance of marriage licenses to same-sex couples and lifted its stay, leaving other issues, including whether Moriarty's legal judgment was correct, to be resolved pending the final outcome of Marie v. Moser.[16][17]

Marie v. Moser[edit]

Once the decisions of the Tenth Circuit Court of Appeals in Kitchen v. Herbert and Bishop v. Oklahoma became binding precedent on federal courts in Kansas, the ACLU filed a lawsuit, Marie v. Moser, in U.S. district court on October 10 on behalf of two lesbian couples who had been refused marriage licenses since the Supreme Court declined to review those decisions. The suit named as defendants Robert Moser, Secretary of the Kansas Department of Health and Environment (KDHE), and two district court clerks.[18] Judge Daniel D. Crabtree heard oral arguments on October 31.[19] On November 4, he ruled that "[b]ecause Kansas’ constitution and statutes indeed do what Kitchen forbids, the Court concludes that Kansas’ same-sex marriage ban violates the Fourteenth Amendment to the Constitution". He stayed enforcement of his ruling against state officials until 5 pm on November 11 unless the state defendants inform the court before then that they will not appeal the decision.[20][21] The Tenth Circuit Court of Appeals rejected the state's request for a stay pending appeal.[22] The Westboro Baptist Church has sought to intervene in the suit without success.[23] Anticipating the expiration of Judge Crabtree's temporary stay, Chief Judge Wayne Lampson of the state district court in Wyandotte County ordered his court's clerks to issue marriage licenses to same-sex couples beginning November 12.[24] The state defendants asked Supreme Court Justice Sonia Sotomayor, as Circuit Justice for the Tenth Circuit, to issue a stay pending appeal, and on November 10 she granted a temporary stay pending consideration of their request.[25] In their briefs, the parties disputed the significance of the order issued by the Kansas Supreme Court in State v. Moriarty and of the recent decision of the Sixth Circuit Court of Appeals in DeBoer v. Snyder.[26][27] The Supreme Court denied the state's request for a stay on November 12, 2014, allowing the district court order to take effect.[28][29] Attorney General Schmidt said that order only applied to Douglas and Sedgwick counties.[30]

On November 26, the plaintiffs amended their complaint to include three additional couples as plaintiffs and three additional defendants: the Secretary of the Kansas Department of Revenue, the Director of the Division of Vehicles, and the Director of the State Employee Health Plan.[31] On December 2, the Tenth Circuit denied the request of the state defendants for an initial hearing en banc of their appeal.[32] On December 8, the plaintiffs asked the court to extend its order to cover the three additional defendants and "any officers, agents, servants, employees, attorneys, other persons who are in active concert or participation with them".[33] On December 10, the three original named defendants asked the district court to remove them as defendants. Moser wrote that he had resigned on November 30 after complying with the court's order, though stayed, by modifying the state's marriage license forms to accommodate same-sex couples, leaving no further action to be compelled from his successor. He and the two clerks noted that the plaintiffs had not married even though they were able to do so and that the plaintiffs had no ongoing dispute with the clerks and therefore no longer had standing.[34][35] The plaintiffs' briefs in reply noted that Moser was named in his official capacity and is therefore succeeded as the principal named defendant by Susan Mosier, Interim Secretary of KDHE. They noted that the duties of that office extend beyond provided marriage license forms and include "supervising the registration of all marriages" and related activities.[36] They argued that the clerks' compliance with a preliminary injunction does not moot the case and that the "plaintiffs are entirely within their rights in adjusting the timing of their marriage so that their claims do not become moot before final judgment is entered."[37]

Despite the replacement of Moser as Secretary of KDHE by Mosier, the case remained Marie v. Moser.[38] The new state defendants filed a motion to dismiss on January 20, 2015. Unlike most state officials' briefs, it cited section 2 of the Defense of Marriage Act to defend the state's refusal to recognize same-sex marriages from other jurisdictions.[39] On March 17, Judge Crabtree rejected the defendants' motions to suspend proceedings pending action in similar cases by the U.S. Supreme Court. He gave them until April 13 to respond to the plaintiffs' motion for summary judgment.[40] On August 10, 2015, Judge Crabtree issued an order declaring that "Article 15, § 16 of the Kansas Constitution, ... and any other Kansas statute, law, policy, or practice that prohibits issuing marriage licenses to same-sex couples in Kansas or recognizing such marriages on the same terms and conditions that apply to opposite-sex couples contravene the Fourteenth Amendment to the United States Constitution."[41]

State agency response[edit]

As of November 19, 2014, state executive agencies such as the Division of Vehicles continued to deny recognition to same-sex marriages. The Governor's office said policies would not change as long the state was appealing the ruling in Marie, citing income tax filing as an example. A spokesperson for the Governor said state agencies would "take the necessary legal actions once this issue is resolved." The Department of Health and Environment, on the other hand, under the U.S. district court's order not to enforce the state's ban, has modified its marriage license application forms to accommodate same-sex couples.[42]

Marriage licenses issued[edit]

One same-sex couple married in Kansas in the week following the U.S. Supreme Court's refusal to hear appeals in cases from Oklahoma and Utah on October 6, 2014. A same-sex couple consisting of one lesbian and one bisexual woman applied for a marriage license on October 7, a day when most county clerks were waiting for instructions, and submitted it to their district court the next day. Following the state's 3-day waiting period, they received their license on October 10 and held their wedding service at the Johnson County Courthouse just a few hours before the Kansas Supreme Court issued an injunction to halt to issuance of marriage licenses to same-sex couples there.[43]

Several Kansas counties began issuing marriage licenses to same-sex couples for the first time on November 13, 2014, though the state Attorney General contended that the federal court order in Marie v. Moser only applied to two counties.[44] The head of the LGBT advocacy group Equality Kansas said it was unclear whether all counties were required to issue such licenses,[45] while the ACLU said "[t]he ruling was clear" and applied to all counties.[46] Johnson County remained under a state court's temporary order not to issue such licenses.[44] More counties began issuing licenses on November 17, even while the Kansas Supreme Court was deliberating whether district judges had the authority to authorize them.[47] The National Organization for Marriage (NOM) urged Kansas Governor Sam Brownback to "order local clerks to refuse to issue marriage licenses that violate Kansas law defining marriage as the union of one man and one woman." Its president, Brian Brown, said: "The question for the people of Kansas, and indeed the nation, is whether we are going to allow an illegitimate order by federal judges to trump state law and the vote of 70% of the Kansas electorate. Fifty million Americans in over thirty states have voted in support of traditional marriage and it's time that states fight back to protect the decision of those voters."[48]

Following the Kansas Supreme Court ruling in Schmidt v. Moriarty, Kansas Equality confirmed that 19 counties were issuing licenses to same-sex couples: Brown, Chase, Cherokee, Cloud, Cowley, Crawford, Douglas, Jewell, Johnson, Labette, Lincoln, Lyon, Mitchell, Republic, Riley, Sedgwick, Shawnee, Washington and Wyandotte. On November 20, Judge Richard Walker, chief of the state's 9th Judicial District, said his district began issuing. Administrative directives existed in the 8th and 19th Districts to issue as well.[49] Judge Ed Bouker, chief of the state's 23rd Judicial District, also mentioned he would issue licenses although "...no one has [yet] filled out an application." This adds the following counties to those issuing licenses: Dickinson, Ellis, Geary, Gove, Harvey, Marion, McPherson, Morris, Rooks and Trego. A November 24 update by Kansas Equality added the following counties, not listed previously, as issuing licenses: Doniphan, Marshall, and Nemaha.[50][51] The following day, Kansas Equality confirmed the state's 31st district, adding Allen, Neosho, Wilson, and Woodson counties. As of December 16, Kansas Equality reported another 7 counties were issuing such licenses: Clark, Clay, Comanche, Ford, Gray, Kiowa, Meade counties.[52] The six counties in the 26th Judicial District began issuing licenses during the week of December 22: Grant, Haskell, Morton, Seward, Stanton, and Stevens counties.[53] Altogether these 54 counties include 76% of the state's population. The 1st Judicial district which includes Atchison and Leavenworth approved handing licenses, as did the 6th Judicial District, comprising Miami, Linn, and Bourbon counties.[54] The 28th Judicial District, which includes Ottawa and Saline counties, began issuing licenses in February.[55] On June 26, the 27th judicial district which includes Reno agreed to start issuing same-sex marriages licenses, bringing the total population living in counties that issue same sex marriage licenses to 86%.

The state's 4th Judicial District had announced that it "[would] have to wait for another court ruling before it will begin issuing licenses" after the ruling in Moriarty. Counties affected under this decision were: Anderson, Coffey, Franklin, and Osage.[56] Judge David Ricke of the state's 13th Judicial District indicated that the ban would remain there as well, affecting Butler, Elk and Greenwood counties.[57] Twelve more counties reported as deciding to deny marriage licenses to same-sex couples were: Cheyenne, Jackson, Jefferson, Logan, Pottawatomie, Rawlins, Sheridan, Sherman, Thomas, Wabaunsee, and Wallace counties.[53] As of February 9, most of the remaining counties had announced that they would also refuse to issue licenses.[58] These 38 counties comprise 12% of the state's population.

Eventually, after the Supreme Court ruling in Obergefell, all 105 counties had agreed to issue marriage licenses to same-sex couples.

U.S. Supreme Court ruling[edit]

Following the decision of the U.S. Supreme Court in Obergefell v. Hodges on June 26, 2015, which ruled that the denial of marriage rights to same-sex couples is unconstitutional, the number of judicial districts issuing marriage licenses to same-sex couples increased steadily. By the afternoon of June 30, all judicial districts had agreed to issue marriage licenses to same-sex couples, though some had yet to receive an application from a same-sex couple.[59][60][61] On both July 9 and 14, 2015, state attorneys announced that the state was now fully recognising the marriages of same-sex couples for state benefits, taxation and other purposes.[62][63]

Religious exemption order[edit]

On July 7, 2015, Governor Brownback issued an executive order to prohibit "state government from taking any discriminatory action against any 'individual clergy or religious leader,' or any 'religious organization' that chooses not to participate in a marriage that is inconsistent with its sincerely held religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman."[64]

State recognition of same-sex marriages[edit]

On June 26, Governor Sam Brownback decried the Obergefell ruling saying "Activist courts should not overrule the people of this state, who have clearly supported the Kansas Constitution’s definition of marriage as being between one man and one woman".[65] He later said the state would study the decision.[66] The Governor's spokesperson said: "Our office is fully reviewing and analyzing the ruling in order to understand the implications and policy changes in order to follow and comply with the law".[67]

It remained unclear whether or when state agencies would begin complying with the Supreme Court ruling for such purposes as filing joint tax returns and providing spousal healthcare benefits, including the state's Medicaid program, with respect to same-sex couples married in Kansas or in other jurisdictions.[68][69] Without making an official announcement, some state agencies began doing so on July 6[70] and July 7,[71] although details of the state's implementation remained unclear as officials made contradictory statements about the state's policy change.[72]

On July 9, 2015, it was discovered that state agencies were recognizing same-sex marriages. Attorneys for the state filed a motion in federal court to dismiss a lawsuit against state agencies for not recognizing same-sex marriages, contending that agencies were now treating same-sex couples the same as heterosexual couples, eliminating the need for litigation. The state acknowledged in the brief that "driver license applications are being handled in the same manner for all married couples whatever the gender of the parties... and Kansas income tax returns filed jointly are now being accepted for all married couples."[62] A spokesperson from the Governor's office announced on July 14 that married same-sex couples would be able to file joint tax returns for the 2014 tax year.[63]

Continuing litigation[edit]

On August 10, 2015, Judge Crabtree granted the plaintiffs in Marie v. Moser the specific relief they sought, but deferred judgment on their request for an injunction prohibiting enforcement of Kansas' denial of marriage rights to same-sex couples.[73]

On July 22, 2016, Judge Crabtree issued a final ruling in Marie v. Moser. He denied the state's motion that the case was moot in light of Obergefell given the failure of state officials to comply with that U.S. Supreme Court ruling consistently. He issued a permanent injunction against the enforcement of Kansas' denial of marriage rights to same-sex couples. He indicated that the court would maintain supervisory oversight for three years, allowing anyone who believes a state official is not complying with the injunction to address their complaint to his court rather than file a new lawsuit.[74]

Legislation[edit]

In February 2019, several state lawmakers introduced the so-called Marriage and Constitution Restoration Act to the Kansas Legislature. The bill seeks to define same-sex marriages as "parody marriages", forbid the state from recognizing such marriages, and establish an "elevated marriage" option for different-sex couples who seek "higher standards of committment". The Wichita Eagle has reported that the legislation stands very little chance of advancing.[75]

One of the bill's sponsors, Representative Ron Highland, later asked to have sponsorship removed. His daughter, who describes herself as a "proud member of the LGBTQ+ community in Kansas City", publicly condemned her father's decision to sponsor the bill.[76]

Economic impact[edit]

According to a study conducted by the Williams Institute in 2015, Kansas would see more than 2,000 same-sex marriages in the next three years, which could add $14.1 million to the state's economy.[77]

Domestic partnerships[edit]

Map of Kansas counties and cities that offer domestic partner benefits either county-wide or in particular cities.
  City offers domestic partner benefits
  County-wide partner benefits through domestic partnership
  County or city does not offer domestic partner benefits

Lawrence[edit]

On May 22, 2007, the Lawrence City Commission voted 4–1 in favor of the creation of a domestic partnership registry. On August 1, 2007, the ordinance went into effect.[78][79]

Topeka[edit]

On May 20, 2014, the Topeka City Council voted 5–3 in favor of the creation of a domestic partnership registry. The ordinance went into effect on June 30, 2014.[80][81]

Public opinion[edit]

Public opinion for same-sex marriage in Kansas
Poll source Date(s)
administered
Sample
size
Margin of
error
% support % opposition % no opinion
Public Religion Research Institute April 5-December 23, 2017 686 ? 57% 37% 6%
American Values Atlas/Public Religion Research Institute May 18, 2016-January 10, 2017 1,091 ? 61% 32% 7%
American Values Atlas/Public Religion Research Institute April 29, 2015-January 7, 2016 876 ? 53% 38% 9%
Public Policy Polling October 9–12, 2014 1,081 likely voters ± 3% 44% 49% 7%
New York Times/CBS News/YouGov September 20–October 1, 2014 2,013 likely voters ± 2.6% 44% 41% 15%
Public Policy Polling February 18–20, 2014 693 voters ± 3.7% 44% 48% 8%
Public Policy Polling February 21–24, 2013 1,229 registered voters ± 2.8% 39% 51% 9%

See also[edit]

References[edit]

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  6. ^ KS HB2172 | 2017-2018 | Regular Session
  7. ^ LGBT advocates ask lawmakers to roll back laws they say discriminate The Wichita Eagle
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External links[edit]