There seem to be some legal complications in regard to the Kansas marriage equality ruling and injunction issued last week. Kansas AG Derek Schmidt says that it only affects two counties in Kansas.
From JMG (via AP):
The U.S. Supreme Court denied a request Wednesday from Kansas to prevent gay and lesbian couples from marrying while the state fights the issue in court. Schmidt says that decision applies only in Douglas, a northeastern Kansas county, and Sedgwick, in south-central Kansas, where the court clerks are defendants. The American Civil Liberties Union contends the ruling applies in all 105 counties. The legal situation in Kansas is complicated by another case before the Kansas Supreme Court, which Schmidt filed last month. He persuaded the Kansas court to block marriage licenses for same-sex couples, at least while his case is heard. Marriage licenses in Kansas are issued by district court clerks' offices after a mandatory three-day wait. In Johnson County, Court Clerk Sandra McCurdy said about 70 applications from same-sex couples are pending. "Until I hear something from the Kansas Supreme Court, I'm not issuing any marriage licenses," McCurdy said.
Johnson County is the most populous county in Kansas.
From Yahoo:
Judges in at least four Kansas counties were issuing marriage licenses to same-sex couples a day after the high court's ruling allowing them to wed. Clerks in other counties were giving applications to gay couples but requiring them to abide by the state's three-day waiting period before they can get a license.
As of midmorning Thursday, Douglas County District Judge Robert Fairchild had waived the waiting period for three couples and said he would consider similar requests on a case-by-case basis. A different judge had agreed to preside over the wedding of one of the couples after the courthouse closes at 5 p.m. CST.
Two couples received licenses in Sedgwick County, while judges in Cowley and Riley counties each had issued one marriage license to same-sex couples.
I believe that it depends on what authority the county clerks in Kansas have. Do they have actual judicial authority (to decide marriage issues) or are they only given ceremonial duties (such as in California)? Are they subordinate to the Secretary of the Kansas Dept. of Health and Environment, which is also a named defendant in the case. The Governor and AG are not named defendants in this case. So ...
Here is a statement by the ACLU in Kansas:
The federal district court injunction issued by Judge Crabtree on November 4, 2014, is now in force, the U.S. Supreme Court having vacated the stay late yesterday afternoon. As the ACLU of Kansas reads it, Judge Crabtree’s order requires stated district court clerks throughout the State of Kansas to stop enforcing Kansas’s unconstitutional prohibition on marriage for same-sex couples. In his Memorandum and Order, Judge Crabtree specifically held that Kansas’s marriage bans are unconstitutional on their face and cannot be enforced against anyone under any circumstances:
The Court construes plaintiffs’ Complaint to allege that Kansas’ laws banning same-sex marriage are ones that are unconstitutional on their face (as opposed to a claim challenging the way that Kansas has applied those laws to them). A claim is a facial challenge when “it is not limited to plaintiffs’ particular case, but challenges application of the law more broadly.” John Doe No. 1 v. Reed, 561 U.S. 186, 194 (2010). If plaintiffs succeed in establishing no circumstances exist under which Kansas could apply its same-sex marriage ban permissibly, the Court may invalidate the laws in their entirety . . . . Doe v. City of Albuquerque, 667 F.3d 1111, 1127 (10th Cir.2012) (“[A] successful facial attack means the statute is wholly invalid and cannot be applied to anyone.”) (quoting Ezell v. City of Chicago, 651 F.3d 684, 698–99 (7th Cir.2011)
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