JURIST Guest Columnist Jeffrey D. Jackson, of the Washburn University School of Law, discusses the complexities of applying state and federal court orders to state marriage laws …

On October 6, 2014, the US Supreme Court denied certiorari [PDF] on all seven cases challenging state bans on same-sex marriage, which effectively allowed the decisions in the US Court of Appeals for the Fourth, Seventh and Tenth Circuits to stand. For the Supreme Court, this action allowed the justices to avoid confronting a contentious issue. However, for states such as Kansas, which is in one of the affected circuits but whose statute had not been challenged, the Supreme Court’s avoidance set up a period of confusion and legal uncertainty that has imposed real costs. Even after several months, the dust has still not fully settled, and much still remains up in the air. The Kansas experience provides a good illustration of what can happen when the court chooses not to resolve important legal issues.

Although Kansas is in the Tenth Circuit, that circuit’s opinion striking down the same-sex marriage bans in Utah and Oklahoma did not control as to its ban because, unlike decisions from the US Supreme Court, decisions of a federal circuit court are not binding on the constitutionality of state laws that are not at issue in the case. Thus, even though Kansas’s law was almost indistinguishable from the laws that the Tenth Circuit had struck down in Utah and Oklahoma, and therefore would almost certainly meet the same result were it challenged in federal court, the fact remained that it had not been. Therefore, it remained the law of the state.

Unfortunately, this wrinkle in court hierarchy was not well-understood. Early news reports made it seem as though the Supreme Court’s denial had actually legalized same-sex marriage in every state in the Tenth Circuit. This led some couples to attempt to apply for marriage licenses immediately, only to be turned down.

Matters took another turn the next day, when the chief judge of the district court in the Tenth Judicial District, which covers Kansas’s most populous county, issued an administrative order [PDF] directing judges and court clerks to issue marriage licenses to same-sex couples. The judge’s order recognized that the order was not compelled by the Supreme Court’s denial or the Tenth Circuit’s decisions, but issued it “in order to provide guidance and avoid confusion.” Unfortunately, the effect was the opposite of that intended, especially because there was a serious question regarding the judge’s authority to issue such an order without a case or controversy before him. On October 10, after 51 applications were approved and one wedding occurred, the Kansas Supreme Court stepped in and issued a temporary stay [PDF] of the order.

On that same day, two couples who had been denied marriage licenses filed suit [PDF] in Kansas federal district court, naming as defendants the Secretary of the Kansas Department of Health and Environment and the Clerks of the District Courts for the Seventh and Eighteenth Judicial Districts. The complaint in Marie v. Moser asked that Kansas’s constitutional and statutory bans on same-sex marriage be declared unconstitutional, and that the court require the issuance of marriage license to same-sex couples on the same terms as opposite sex couples and recognize such marriages as valid. Three days later, on October 13, the plaintiffs moved for a preliminary injunction and temporary restraining order [PDF].

On November 4, the Federal District Court issued a 38-page ruling [PDF], granting a preliminary injunction. The court held that, given the Tenth Circuit’s precedent, “plaintiffs have shown a strong likelihood that they will succeed in establishing that [the Kansas constitutional and statutory bans] violate their rights guaranteed by the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution.” Therefore, the court enjoined the defendants from enforcing the bans. The court then stayed its ruling until November 11 to allow the defendants to seek a stay pending review from the Tenth Circuit Court of Appeals.

Once again, the headlines were misleading. The story as reported on MSNBC’s site was a typical example, trumpeting “Judge strikes down Kansas gay marriage ban.” Readers of the story learned that “a federal judge on Tuesday declared the state’s same-sex marriage ban unconstitutional.”

Except he hadn’t. Lost in the rush was the fact that the judge had only declared that it was likely that the plaintiffs would prevail, the standard for granting preliminary injunctive relief. The judge’s decision did not conclusively reach the merits of the case. Therefore, there had not been an actual decision on constitutionality, but instead only a decision enjoining the defendants, most notably the clerks of the courts of two Kansas Judicial Districts, from refusing to issue marriage licenses.

After a request for a stay was turned down by the Tenth Circuit Court of Appeals, Kansas’s Attorney General filed an emergency request for a stay with the US Supreme Court. On November 10, a temporary 24-hour stay [PDF] was granted. Although fairly routine, this caused a moment of consternation for same-sex marriage proponents, because on November 6, the Sixth Circuit had become the first federal circuit to uphold a state ban [PDF] on same-sex marriage. Suddenly, there was a question regarding what the Supreme Court might do, causing the head of Equality Kansas, a proponent of same-sex marriage, to advise gay and lesbian couples to “rush to the altar as soon as possible.” The fears were somewhat allayed on November 12, when the US Supreme Court lifted the temporary stay [PDF], thus allowing the Federal District Court’s order to take effect.

On November 18, the Kansas Supreme Court followed suit, lifting its stay [PDF] of the state district judge’s administrative order in the Tenth Judicial District, thereby allowing marriage licenses to be issued in that district. Although expressly not opining as to the constitutionality of Kansas’s ban, or the breadth of the federal injunction, the Kansas Supreme Court did establish one important point: it held that district judges were within their jurisdiction to make a determination as to whether a marriage license could be issued to same-sex couples. The court also determined that it would wait to allow the federal court action to play out before addressing the merits of the case. With all of the stays lifted and a preliminary injunction in place, it appeared that the situation regarding same-sex marriage in Kansas was finally beginning to clear.

Except that it still hasn’t. Despite arguments by proponents such as the American Civil Liberties Union that the matter should be considered settled and same-sex marriage legal throughout the state, this is manifestly not the case. While a declaration that Kansas’s ban is unconstitutional would indeed have to be followed, no such declaration currently exists. Rather, the preliminary injunction extends only to the defendants in the federal district court case, and enjoins only them from enforcing or applying the bans. That is, it enjoins the court clerks of the Seventh and Eighteenth Judicial Districts from refusing to issue marriage licenses to same-sex couples. It is unclear what its effect might be on the third defendant, the Secretary of the Kansas Department of Health and Environment, as his duties consist only of furnishing forms, worksheets and certificates for marriage licenses under Kansas law and maintaining a vital statistics database of marriages. It appears that, under the injunction, he is merely prohibited from issuing forms that exclude same-sex couples or failing to enter their marriages into the database. Determining who is qualified to marry in Kansas is a judicial function, and thus not within his purview. Meanwhile, the federal district court case itself is still pending.

So what do we know so far? Some things are clear. Same-sex couples may apply for marriage licenses in the Seventh and Eighteenth judicial districts in Kansas, and under terms of the temporary injunction in Marie v. Moser, such a license must be granted if the applicants are otherwise qualified. Same-sex couples may also apply for marriage licenses in the Tenth Judicial District, and they will be granted them by the administrative order of the district court, whose validity, if not ultimate legality, the Supreme Court upheld. Same-sex couples can also apply for marriage licenses in any other judicial district in Kansas. However, whether or not they will be granted them is subject to the independent judgment of the district court in that judicial district as to whether they are “legally entitled” to such a certificate, taking into account all of the authorities on the matter. As of November 20, approximately 24 of Kansas’s 105 counties have decided to issue marriage certificates to same-sex couples. Moreover, under state law, marriage licenses issued by one judicial district can be used by those couples to marry anywhere within the state. Thus, those same-sex couples who wish to marry in Kansas may do so, although they may have to travel to different county to obtain the license.

The validity and effect of those marriages is a little murkier, however. Because there has been no definitive federal or state ruling on the constitutionality of the Kansas ban, the state has continued to enforce the ban where not prohibited by the injunction. The state has taken the position that it will not otherwise recognize those marriages for purpose of benefits such as name changes or employee benefits. Until there is a final determination, it is not clear whether any of the marriages entered into so far are valid. While it would seem inconceivable that a final decision, whether at the district court, Tenth Circuit, or US Supreme Court, would uphold Kansas’s ban at this point, the matter is still up in the air.

It appears that in ducking the issue of the constitutionality of state same-sex marriage bans, the United States Supreme Court sought to avoid a controversial decision, while at the same time hoping that events in the lower courts would make such a decision ultimately unnecessary. Of course, with the US Court of Appeals for the Sixth Circuit’s decision upholding the constitutionality of some state bans, it looks as though this strategy may ultimately prove unavailing. Unless the Sixth Circuit overturns its panel on en banc review, the Supreme Court will either have to resolve the split, or live with the untenable situation where laws against same-sex marriage violate the Constitution in some parts of the United States, but not others. In the meantime, however, the court’s decision not to decide has posed real human costs in the states, in terms of uncertainty and confusion over the state of same-sex marriage.

Jeffrey D. Jackson is Professor of Law at Wasburn University School of Law in Topeka, Kansas. He received a B.B.A. in economics from Washburn University, a J.D. from Washburn University School of Law and an LL.M. in Constitutional Law from Georgetown University Law Center. He served as a staff attorney for Death Penalty and Constitutional Issues for the Kansas Supreme Court before he became part of the Washburn Law faculty.

Suggested citation: Jeffrey Jackson, Why the Supreme Court’s Decision Not to Decide Same-Sex Marriage Made a Mess in Kansas, JURIST – Academic Commentary, Dec. 6 2014, http://jurist.org/academic/2014/12/jeffrey-jackson-marriage-kansas.php.