KANSAS CITY, Kan. >> A federal judge on Tuesday ordered Kansas to allow same-sex couples to marry pending the outcome of a lawsuit challenging the state’s ban, 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 constitutional ban as of 5 p.m. next Tuesday, pending the outcome of an American Civil Liberties Union lawsuit challenging it.
The state is expected to appeal Crabtree’s order — Assistant Attorney General Steve Fabert told the judge in court last week that the state would appeal if such an order were issued.
The ACLU sued to overturn Kansas’ ban after the U.S. Supreme Court refused to hear appeals from five states seeking to save their gay marriage bans. Among them were Oklahoma and Utah, which like Kansas fall under the jurisdiction of the 10th Circuit Court of Appeals.
The ACLU filed its lawsuit on behalf of two lesbian couples, one in Douglas County and one in Sedgwick County, who had been denied marriage licenses. The defendants include the secretary of the Kansas Department of Health and Environment, which provides license forms and maintains copies of marriage certificates.
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 than he views it.
“On balance, the court concludes that a short-term stay is the safer and wiser course,” he wrote in granting the one-week delay.