The State of Kansas ran into an incredulous judge as the Federal Court in Kansas City Kansas began a hearing with regards to the status of gay marriages in Kansas.
Doug Bonney, representing the plaintiff began his oral argument with a recitation of a Walt Whitman poem, evoking the idea that denying basic human rights to individuals is a constitutional and federal question, and one that has already been answered by the Circuit Court in this case.
The state, however, began their argument by admitting the idea that they were not as likely to succeed. Notifying the judge before the arguments began that the State of Kansas had decided they would appeal any injunction issued by the court, the state asked for a stay to be considered before the case went further. The state proceeded to argue the case as a matter of law.
Federal judge Daniel Crabtree interrupted the Kansas attorneys frequently, asking whether or not the cases they were citing were on point, or, in some cases relevant.
Kansas, citing Atlantic Coast Railroad case of 1970 (Linked Here: https://supreme.justia.com/...) argued that while a state level case was pending on an issue, the Federal Court could not rule on the matter. A current case faces the Kansas Supreme Court based on action by Kansas Attorney General Derrick Schmidt. In responding to the issues at hand, Judge Crabtree highlighted that issues of labor contract law, as disputed in the Atlantic Coast Railroad case are not exactly similar to the case in regards to human liberties.
The state offered many other arguments, notably that the State of Kansas marriage system differs from Oklahoma and Utah in that the state of Kansas offers Common Law Marriage. When questioned on whether or not Oklahoma or Utah had common law marriage, the State of Kansas attorneys were "unsure" but "didn't think so".
I asked Doug Bonney and ACLU attorneys after the court case if Common Law marital status had ever been provided to a same sex couple in Kansas, and the answer was no. While Kansas may in fact provide two tracks of marriage, it does not effectively benefit or include those who are same sex.
The state of Kansas continued by arguing whether or not the right plaintiffs were named, debating whether or not the ruling by the Judge Moriarty in the Johnson County Courthouse had defacto changed the issuance of marriages licenses from an administerial duty to a judicial duty, which would be protected by judicial immunity.
Judge Crabtree was also concerned with this argument, "It seems as though you've created a box for the plaintiffs here." In that this would be a way to insulate all claims against the state by playing musical chairs.
The session was ended after a short rebuttal by Doug Bonney, who argued that the procedure was focused exclusively on licensure, and that he hoped the state of Kansas, upon the loss of this issue would revisit their decision to continue to defend other issues.
Judge Crabtree noted that he would not be issuing a ruling from the bench, as the ruling would be written and that the court would move "quickly". He however noted that a ruling would not be issued today.
It is likely that we see a ruling before November 6, the day that the State Supreme Court would hear this case.