Fed. Court Strikes Kan. Gay Marriage Ban While State Case Is Pending

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By William Peacock, Esq. on November 05, 2014 4:09 PM

We love being right, though to be fair, anyone with even the most rudimentary understanding of how controlling precedent works could have seen this opinion coming.

The Tenth Circuit has ruled against gay marriage. The Supreme Court didn't intervene. What's a federal district court in Kansas to do then? Make Kansas the 33rd state to have legalized gay marriage, obviously, even though a parallel state court challenge is set for oral arguments tomorrow.

Marie v. Moser? See Herbert v. Kitchen

"Because Kansas' constitution and statutes indeed do what Kitchen forbids," U.S. District Court Judge Daniel Crabtree wrote, "the Court concludes that Kansas' same-sex marriage ban violates the Fourteenth Amendment to the Constitution."

Kitchen, of course, refers to Herbert v. Kitchen, the Tenth Circuit's opinion striking down Utah's same-sex marriage ban. Again, precedent made Tuesday's ruling in Marie v. Moser a foregone conclusion.

The only slight surprise was that Judge Daniel Crabtree delayed his order pending an appeal -- a move that would seem to be mandated by the U.S. Supreme Court's multiple stay orders in parallel cases in other circuits, but may not have been necessary after the Court punted on gay marriage earlier this term.

En Banc Shot

Kansas Attorney General Derek Schmidt isn't going down without a fight. Not only is the state case pending in the Kansas Supreme Court, but he issued a statement Tuesday night stating that he would seek immediate en banc review from the Tenth Circuit.

"The State of Kansas continues to have a strong interest in the orderly and final determination of the constitutionality of its prohibitions on same-sex marriage," Schmidt stated. "The state defendants will promptly appeal this decision to the Tenth Circuit Court of Appeals and will ask for consideration by the full Circuit Court. Such a request for en banc consideration was not previously made by either Utah or Oklahoma when their cases were heard by a three-judge panel of the appellate court."

What About State Court?

Judge Crabtree's opinion stretched over 38 pages, and it wasn't because he wanted to wax poetic about civil rights or marriage equality. He noted that the case presented novel issues of federal-state judicial relationships before dismissing the state's arguments that he shouldn't rule at all, reports SCOTUSblog.

Lyle Denniston notes that since the Supreme Court decided not to take on same-sex marriage, the circuit courts' rulings should apply to all states in those circuits. But state courts in Kansas and South Carolina, with their own pending challenges, have put a hold on marriage licenses. The prospect of conflicting state and federal rulings has birthed a new argument from the states on why federal courts should stay out of it.

Judge Crabtree addressed and dismissed arguments of sovereign immunity, a "domestic relations" exemption to federal court jurisdiction, state-federal abstention doctrines, and the long-standing rule that federal courts (other than SCOTUS) should not review state court decisions (an odd argument that failed because this was a separate case from the state challenge).

But his stay gives Kansas the chance to ask the Tenth Circuit to address the federal-state interplay issue, as well as the merits of the case, if an en banc hearing is granted.

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