The Kansas City Star / Tammy Ljungblad / AP

Judge orders Kansas to let gay couples marry

The decision, if upheld, would make Kansas the 33rd state where same-sex marriage is legal

A federal judge on Tuesday ordered Kansas to allow same-sex couples to marry, but he delayed enforcement of his order until next week to give the state time to appeal.

U.S. District Judge Daniel Crabtree issued a preliminary injunction barring the state from enforcing its same-sex marriage ban as of 5 p.m. next Tuesday.

"This is a great day for marriage equality in Kansas and for gay and lesbian couples, because now they can do what straight people have been able to do forever. They can get married," said Doug Bonney, legal director of the ACLU's Kansas chapter, which filed the suit on the behalf of two lesbian couples who were denied marriage licenses after a decision by the U.S. Supreme Court last month not to hear appeals from states whose bans had been overturned.

Kansas Attorney General Derek Schmidt, whose office has been defending the state's constitutional ban, said he would quickly appeal. Gov. Sam Brownback's spokeswoman, Eileen Hawley, said the governor took an oath to defend the Kansas Constitution and would work with Schmidt "to ensure an orderly judicial process in determining this issue and to avoid the confusion created by inconsistent judicial rulings."

The high court refused to hear appeals from five states seeking to preserve similar gay-marriage bans that were struck down by federal appeals courts, whose decisions extend to other states within their jurisdiction. Among those five states were Oklahoma and Utah, which, like Kansas, fall under the 10th U.S. Circuit Court of Appeals.

Gay marriage is now legal in 32 states and the District of Columbia.

"The handwriting is on the wall," Bonney said. "Marriage equality is here. It is time to quit fighting about this and allow people to exercise their fundamental right to marriage, and to do otherwise wastes the public's money."

After the U.S. Supreme Court ruling, the chief district judge in Johnson County — Kansas' most populous county — ordered licenses to be issued to same-sex couples. Two women obtained one and quickly wed.

Schmidt then filed a petition with the Kansas Supreme Court, which temporarily blocked new licenses to gay couples and scheduled a Nov. 6 hearing. Schmidt said his goal was to "freeze the status quo in place until the legal dispute can be properly resolved."

The ACLU filed its federal lawsuit only hours later on behalf of the two lesbian couples, one in Douglas County and one in Sedgwick County. ACLU lawyers contend that the group's lawsuit is likely to prevail and that denying the couples the right to marry, even for a short time, would do them irreparable harm.

Crabtree wrote that Kansas' ban is infringing on the plaintiffs' constitutional rights, and he seemed reluctant to delay their right to marry, even by a week. He said the 10th Circuit had already settled the substance of the constitutional challenge but conceded that the appeals court may view the case differently.

"On balance, the court concludes that a short-term stay is the safer and wiser course," he wrote.

Tom Witt, executive director of the gay rights group Equality Kansas, called on the governor to stop fighting. "This already has already been a waste of time and money," Witt said. "This has only one outcome. He is playing games with people's lives, and we've waited long enough."

Kansas law has never recognized same-sex marriages, and voters overwhelmingly approved an amendment to the state constitution in 2005 to add a gay-marriage ban.

The Associated Press

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