Kansas Marriage Equality Ruling May Go to the 10th Circuit for En Banc Review

U.S. District Judge Daniel Crabtree ruled on November 4 in Marie v. Moser that the Kansas ban on same-sex marriage violates the 14th Amendment.  The Obama appointee, who has been a federal judge for less than a year, rejected the state’s argument that the U.S. Supreme Court’s 1972 ruling in Baker v. Nelson “controls the outcome here” and instead applied the recent decisions by the 10th Circuit Court of Appeals, Kitchen v. Herbert and Bishop v. Smith, which struck down Utah’s and Oklahoma’s s same-sex marriage bans as a violation of the 14th Amendment.  The Supreme Court denied petitions to review those rulings on October 6, making them the binding precedent for all federal courts within the 10th Circuit, including Kansas.

Before the Supreme Court’s announcement, the only state in the 10th Circuit where same-sex couples could marry was New Mexico, as a result of a 2013 ruling by that state’s highest court.  After October 6, same-sex couples began marrying in Utah and Oklahoma, and soon thereafter federal district court rulings in Wyoming and Colorado led to marriage equality in those states, leaving Kansas the last state in the circuit resisting the marriage equality tidal wave.

Litigation in Kansas proceeded on parallel tracks.  An existing marriage equality case was going nowhere fast, so the ACLU of Kansas filed this new lawsuit, Marie v. Moser, on behalf of two same-sex couples seeking the right to marry in the state, naming as defendants Kansas Secretary of Health and Environment Robert Moser, whose department is responsible for administration of the state’s marriage laws, and two county clerks whose offices were unwilling to allow same-sex marriages by the two couples.  Meanwhile, Chief Judge Robert Fairchild of the state’s Seventh Judicial District (Douglas County) issued an administrative order requiring the Douglas County clerk to issue licenses to same-sex couples, relying on the Supreme Court’s denial of review for the 10th Circuit rulings. Kansas Attorney General Derek Schmidt promptly applied to the Kansas Supreme Court for an ruling invalidating Fairchild’s order.  That court stated that the Douglas County clerk could continue to accept license applications, but none should be processed until the Supreme Court could hold a hearing to determine whether Fairchild exceeded his authority and whether, indeed, the 10th Circuit precedent overrides Kansas law and requires the state to allow same-sex marriages. The Supreme Court set that hearing to take place on November 6.

Meanwhile the ACLU pushed forward quickly with a motion for preliminary injunction in its case.  Judge Crabtree held a hearing on the motion on October 31.  Attorneys for the state urged Crabtree to abstain from deciding the case while the matter was pending before the Kansas Supreme Court, and he devoted much of his November 4 ruling to refuting the state’s various arguments as to why the federal court should let this issue be decided first by the state court.  This is why it took Crabtree 38 pages of legal analysis to decide a case that, at least as to the merits, has already been decided.  He spent little time in his opinion on the merits, and almost all his time on issues of standing, jurisdiction, justiciability and federal abstention, ultimately concluding that none of the state’s technical arguments would justify delaying his ruling in light of the 10th Circuit’s clear precedent.

“At the preliminary injunction hearing,” he wrote, “defendants’ counsel tried to differentiate Kansas — and its same-sex marriage ban — from the Utah and Oklahoma provisions nullified in Kitchen and Bishop.  He argued that Kansas, by statute, recognizes common law marriage and plaintiffs could achieve married status under the common law variant of marriage.”  This is an outright falsehood, of course, as Kansas has never applied the doctrine of common law marriage to same-sex couples and has not indicated any willingness to do so prior to this hearing. “This argument,” continued Crabtree, “even if accurate, proves too much.  On its best day, this argument contends that Kansas’ common law marriage alternative provides same-sex couples access to a separate but equal classification of marriage.  That is, opposite-sex citizens can marry by either statutory or common law marriage while same-sex couples must confine their marriages to the common law alternative.  Thus, defendants’ alternative way of looking at the same-sex ban still denies plaintiffs equal protection of Kansas’ marriage laws.”  And, he concluded, “Because Tenth Circuit precedent is binding on this Court, Kitchen and Bishop dictate the result here.”

However, acknowledging that his refutation of the various procedural arguments had an outside chance of catching the attention of the 10th Circuit, Crabtree acceded to the state’s request that he stay any ruling to give them time to file an appeal.  “Defendants’ stay request presents a relatively close call,” he wrote.  On the one hand, the 10th Circuit “has settled the substance of the constitutional challenge plaintiffs’ motion presents” and “under the Circuit’s decisions, Kansas law is encroaching on plaintiffs’ constitutional rights.  But defendants’ arguments have required the Court to make several jurisdictional and justiciability determinations, and human fallibility is what it is; the Circuit may come to a different conclusion about one of these threshold determinations.  On balance, the Court concludes that a short-term stay is the safer and wiser course.”

Thus, Judge Crabtree stayed his order for one week until 5 pm on November 11 to give the state time to seek a longer stay pending appeal from the 10th Circuit.  Responding to the ruling, Attorney General Schmidt announced that the state would ask the 10th Circuit to take the case en banc, by-passing the usual three-judge panel to a hearing before the entire 10th Circuit bench of twelve active judges.  (Of those, five were appointed by President Obama, two by President Clinton, one by the first President Bush, and four by the second President Bush.)  Schmidt pointed out that neither Utah nor Oklahoma had asked for en banc review of the decisions in their cases by the same three-judge panel, and neither Colorado nor Wyoming appealed the recent district court rulings in light of the Supreme Court’s refusal to review the Utah and Oklahoma cases.  Thus, Schmidt found a glimmer of hope that Kansas might persevere as a bastion of traditional marriage in the 10th Circuit.  Both Schmidt and Governor Sam Brownback, staunch opponents of same-sex marriage, won re-election on the day that Judge Crabtree issued his opinion.

Update Note:  The 10th Circuit turned down the state’s request for a stay of Judge Crabtree’s decision on Nov. 7.  On Nov. 10, the state filed an application for a stay pending appeal with Justice Sonia Sotomayor at the Supreme Court, and she gave the plaintiffs until 5 pm on Nov. 11 to file their response, which the ACLU of Kansas accomplished with time to spare.  At the end of the workday on Nov 12, the Supreme Court rejected the state’s motion for a stay pending appeal.  Justices Scalia and Thomas noted that they would have granted the stay.


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