TOPEKA, Kansas (AP) — Kansas plans to ask the U.S. Supreme Court to preserve its gay-marriage ban while a legal challenge from two lesbian couples is considered by lower federal courts.
Attorney General Derek Schmidt said Friday that he’ll act before a federal judge’s injunction barring the state from enforcing its ban takes effect Tuesday.
Schmidt announced his plans after the 10th U.S. Circuit Court of Appeals in Denver refused to stay the injunction issued by U.S. District Judge Daniel Crabtree earlier this week. Crabtree delayed his injunction to allow the state to appeal.
Schmidt said he has a duty to exhaust all the state’s options because the state constitution bans gay marriage. Voters approved the constitutional provision in 2005.
He said his request would go to U.S. Supreme Court Justice Sonia Sotomayor.
But the legal climate is complicated by a separate gay-marriage case before the Kansas Supreme Court.
The 10th U.S. Circuit Court of Appeals in Denver on Friday denied a request from Kansas Attorney General Derek Schmidt’s office to put on hold a lower-court injunction preventing the state from enforcing anti-gay marriage laws, including a provision in the state constitution. The injunction is set to take effect 5 p.m. Tuesday.
But the Kansas Supreme Court blocked marriage licenses for gay couples while it considers a separate case filed by Schmidt. The Kansas court’s spokeswoman says its order remains in effect.
ADDITIONAL DOCUMENTS: U.S. Court of Appeals 10th Court ruling
We conclude that the [appellants] have failed to make the showings necessary to obtain a stay, and we deny the emergency motion for stay pending appeal. We note that the district court’s temporary stay of its own preliminary injunction order remains in effect until 5:00 p.m. CST on November 11, 2014.” – excerpt from the court document.
U.S. District Judge Daniel Crabtree issued the injunction this week in a lawsuit filed by the American Civil Liberties Union on behalf of the couples, who were denied marriage licenses. Crabtree stayed his order until 5 p.m. Tuesday to give the state time to appeal. Kansas asked the appeals court to issue its own stay so the state could keep its gay-marriage ban in place while the appeals judges reviewed the case.
Crabtree’s injunction is now set to take effect, allowing same-sex couples to marry legally. But a separate case — filed by Schmidt to block counties from issuing marriage licenses — is before the Kansas Supreme Court, which barred such licenses while it reviewed its case.
It wasn’t immediately clear how the two separate cases would interact. Schmidt and a spokeswoman did not immediately return telephone messages seeking comment.
Both cases arose from the U.S. Supreme Court’s refusal last month to hear appeals from five other states seeking to preserve gay-marriage bans following adverse lower court rulings. Kansas voters overwhelmingly approved an anti-gay marriage amendment to the state constitution in 2005.
Two of the appeals spurned by the U.S. Supreme Court were from Oklahoma and Utah, which also are covered by the 10th Circuit. Crabtree noted in issuing his injunction that the appeals court previously struck down the Oklahoma and Utah bans, similar to the one in Kansas.
The Kansas Supreme Court case involves an order by Chief Judge Kevin Moriarty of Johnson County District Court, directing marriage licenses to be issued to same-sex couples.
A lesbian couple received a license and wed, but Schmidt quickly filed a petition to prevent any more licenses from being issued.
The Kansas court had directed the parties in Schmidt’s case to submit written arguments by Nov. 14 on whether it should continue blocking same-sex marriage licenses and whether it should wait to consider Schmidt’s petition until the federal courts resolve the ACLU lawsuit.