Update on Kansas federal court hearing on marriage

Kansas City, Kan. (AP) — The Kansas attorney general's office told a federal judge Friday that he should not consider blocking the state from enforcing its gay-marriage ban until the state Supreme Court weighs in, while the American Civil Liberties Union argued same-sex couples suffer legal harm if the judge delays a decision.

The arguments came in a hearing on the ACLU's request for a preliminary injunction blocking enforcement of Kansas' gay-marriage ban while U.S. District Judge Daniel Crabtree considers the group's lawsuit on behalf of two lesbian couples.

The ACLU filed the lawsuit earlier this month after the U.S. Supreme Court refused to hear appeals from five states seeking to preserve similar gay-marriage bans after adverse lower-court rulings. The couples were denied marriage licenses in Douglas County in northeast Kansas and in Sedgwick County in south-central Kansas.

One of the women involved, Kerry Wilks, of Wichita, said after the hearing that "one minute is too long to wait" for the right to marry.

"Look me in my eyes. Look me in my human face," Wilks told reporters. "We are people. We want to get married."

The legal situation in Kansas is complicated by another case arising from an administrative order from the chief state district court judge in a third county, Johnson County, the state's most populous county and home to affluent Kansas City suburbs, that briefly cleared the way for same-sex marriages there. Attorney General Derek Schmidt filed a petition with the Kansas Supreme Court to overturn it, and the state's highest court blocked same-sex marriages while it hears Schmidt's petition.

Crabtree didn't rule Friday on the ACLU's request but said he will decide whether to issue a preliminary injunction against the gay-marriage ban "as promptly as we can."

Tom Witt, Executive Director of Equality Kansas, sent an email to EK members, saying, “At the conclusion of the proceeding, he [Judge Crabtree]stated that he would be issuing a written order ‘very soon.’ My understanding of initial reports is that the order may come in a matter of just a few days.

“According to our Equality Kansas State Chair, Sandra Meade, the judge extensively questioned the Assistant Attorney General arguing the state's side.  Sandra says the judge seemed ‘incredulous’ at times, asking the AG's office how their arguments got ‘from here to there.’

“So we continue to wait. Next Thursday, November 6, is the hearing scheduled before the Kansas Supreme Court on AG Schmidt's October 10 demand that marriages be stopped.  Depending on the timing and substance of Judge Crabtree's soon-to-come order, that hearing may not happen.”

The Kansas Supreme Court has scheduled arguments in its case for Nov. 6, and Assistant Attorney General Steve Fabert predicted that it will rule quickly. He questioned whether a lower federal court has the authority to hear issues before the state's highest court, saying that under past precedents, federal courts defer to state courts.

"The Kansas Supreme Court has to be allowed to move forward," Fabert said. "They may address the ultimate constitutional questions."

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. In challenging it, the ACLU pointed to rulings striking down similar bans in Oklahoma and Utah by the same federal appeals court overseeing Kansas.

An AP story by John Hanna, Associated Press, formed the basis of this story, with additional information from Equality Kansas.

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