When U.S. District Judge Daniel D. Crabtree ruled on November 4 in Marie v. Moser, 2014 WL 5598128, 2014 U.S. Dist. LEXIS 157093, that Kansas’s ban on same-sex marriage was unconstitutional, he issues a preliminary injunction directing the defendants not to enforce the ban, but stayed the effect of this Order until 5 pm on November 11 to give the state time to seek a stay from the 10th Circuit or the Supreme Court. Judge Crabtree had rejected the state’s argument that he should stay his own ruling until such time as the state could get it reviewed on the merits by an appellate court. The obvious reason for refusing such a stay was that the 10th Circuit Court of Appeals has already ruled in two other cases that state bans on same-sex marriage are unconstitutional, and the Supreme Court refused to review both decisions as well as similar rulings from other circuits. Thus, any appeal on the merits would most likely be a waste of time, undertaken mainly for the purpose of delaying implementation of the court’s order.
The 10th Circuit turned down the state’s request for a longer stay on November 7. The Supreme Court, after extending Judge Crabtree’s stay briefly so that the Court could consider the application and the plaintiffs’ Response, denied the state’s request around 5 pm on November 12. Only Justices Scalia and Thomas indicated that they would have granted the request for a longer stay pending final resolution of the issue by an appellate court, so the vote was 7-2 to deny the stay. Thus, Judge Crabtree’s opinion goes into effect.
But what does that mean “on the ground” in Kansas? The named defendants in the case, who are enjoined from enforcing the state’s ban, are Robert Moser, the Secretary of the Kansas Department of Health and Environment, Douglas Hamilton, the Douglas County Clerk, and Bernie Lumbreras, the Sedgwick County Clerk. Hamilton and Lumbreras were named as defendants because their offices turned down marriage license requests by the plaintiffs. Moser was named as a defendant because his department is the operative agency of state government in Kansas with responsibility for administering the marriage license and marriage recordation process. The lawsuit did not name the governor or attorney general as defendants because they do not have any direct operative responsibility with respect to these functions.
However, even after the Supreme Court denied the stay request, some in Kansas are arguing that only the Douglas and Sedgwick County Clerk offices are obliged to issue marriage licenses, on the theory that none of the other clerks were directly enjoined by Judge Crabtree. Other clerks are saying they will not move on this until ordered by higher authority. This is silly and obtuse. But it can be quickly cured. Judge Crabtree was ruling on a motion for a preliminary injunction. The ACLU, which represents the plaintiffs, can now move to make the preliminary injunction permanent, and can specifically request that the judge frame his order to bind all Kansas state officials, in compliance with the 10th Circuit’s finding in the Utah and Oklahoma cases that state bans on same-sex marriage violate the fundamental right of same-sex couples to marry.
Another point worth making. In resisting the court’s order and announcing that Kansas will appeal to the 10th Circuit seeking en banc review, Governor Sam Brownback emphasizes his oath to protect and defend the Constitution of the State of Kansas, which includes a provision banning same-sex marriage. He conveniently overlooks that his oath of office also requires him to protect and defend the Constitution of the United States, which by its Supremacy Clause overrides the Kansas Constitution where there is any conflict. Judge Crabtree has applied binding 10th Circuit precedent to find that there is such conflict, and the Supreme Court has refused to stay his decision. It sounds like the governor’s compliance with his oath — his entire oath, since Kansas is, at least for now, part of the United States — mandates compliance with the court’s order. Of course, the losing party in a district court proceeding has a right to seek appellate review. But seeking appellate review from the same judicial body that has twice rejected all the arguments being raised by Kansas in its decisions from other states seems like a delaying tactic more than anything else.
Why seek delay? Obviously, to try to string things out in the hope that the Supreme Court will eventually affirm the 6th Circuit Court of Appeals’ November 7 ruling holding that state bans on same-sex marriage do not violate the constitution, the first dissenting opinion by a circuit court on this issue since 2006 and contrary to the views of the 4th, 7th, 9th and 10th Circuits, relying in part on the reasoning underlying the Supreme Court’s decisions in U.S. v. Windsor (2013) and Lawrence v. Texas (2003). If Brownback and Company can string things out that long, they would never have to allow same-sex marriage in Kansas. But actions taken primarily for purposes of delay are certainly disfavored in American law.