TOPEKA, Kan. (AP/KSNT) — A federal appeals court has cleared the way for gay marriages to start in Kansas next week.
But Kansas Attorney General Derek Schmidt says he’ll appeal the ruling to the U.S. Supreme Court before any marriage could take place starting at 5:00 p.m. next Tuesday.
The 10th U.S. Circuit Court of Appeals in Denver on Friday denied a request from the state to block an order from a lower-court judge preventing Kansas from enforcing its ban on gay marriage.
U.S. District Judge Daniel Crabtree put on hold the order he issued this week until 5 p.m. Tuesday to give Kansas time to appeal. The state did, asking the appeals court to issue a stay to keep the gay-marriage ban in place until the appeals judges resolved the case.
But the 10th Circuit refused.
“We conclude,” writes Elisabeth A Shumaker, Clerk of the Court, on behalf of the court “that defendants have failed to make the showings necessary to obtain a stay, and we deny the emergency motion for a stay pending appeal. We not 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.”
Schmidt late in the day said he’ll file an appeal with U.S. Supreme Court Justice Sonia Sotomamayor, the court’s on-call Justice for the state of Kansas.
“Today’s decision by the Tenth Circuit means that the federal District Court’s preliminary injunction remains the controlling authority in this case,” said Schmidt in a written statement. “Pursuant to that order, state district court clerks in Douglas and Sedgwick counties will be barred from denying marriage license applications solely because the applicants are of the same gender as of 5 p.m. on Tuesday, November 11, unless the U. S. Supreme Court intervenes.
“Because the federal District Court’s injunction will effectively disable a provision in the Kansas Constitution,” he continues “I believe I have a duty to exhaust all of the state’s options for appeal. Yesterday’s decision by the Sixth U.S. Circuit Court of Appeals in Cincinnati, which held that similar laws in four states do not violate the U. S. Constitution, creates for the first time a split of authority among the federal appeals courts and increases the likelihood that the U. S. Supreme Court will address this important constitutional question. Therefore, I will take the additional step before Tuesday of asking Justice Sonia Sotomayor, who handles these matters arising within the Tenth Circuit, to stay the District Court’s injunction pending appeal.”
The ruling by Crabtree was in a federal lawsuit by two lesbian couples who were denied marriage licenses.
A separate gay-marriage case is before the Kansas Supreme Court. On Thursday that case was put on indefinite hold while the federal case winds through the courts.
The state Supreme Court also set a deadline of 5:00 p.m. November 14th for the State of Kansas and the American Civil Liberties Union to file briefs on whether a temporary restraining order barring the issuance of marriage licenses in Johnson County should continue. That order was sought by the Kansas Attorney General after a Johnson County District Court Judge was ready to begin granting marriage licenses early last month in violation of the state’s constitutional amendment defining “marriage” as being only between a man and a woman.
The Associated Press contributed to this story.