WASHINGTON — The writing is on the wall for gay marriage bans in Kansas, Montana and South Carolina after federal appeals courts that oversee those states have made clear that keeping gay and lesbian couples from marrying is unconstitutional.
But officials in the three states are refusing to allow same-sex couples to obtain marriage licenses without a court order directing them to do so. It could be another month or more before the matter is settled.
In a political campaign debate Monday, Kansas Gov. Sam Brownback vowed to defend his state’s constitutional amendment defining marriage as between a man and a woman. A federal court hearing is scheduled for Friday.
There seems little doubt that U.S. District Judge Daniel Crabtree ultimately will set aside the state’s gay marriage ban. That’s because the 10th U.S. Circuit Court of Appeals, encompassing Kansas and five other states, has said a state may not deny a marriage license to two people of the same sex.
“He is absolutely bound and has to make that decision,” said Sarah Warbelow, legal director of the Human Rights Campaign.
The same requirement holds true for federal judges who are hearing same-sex marriage lawsuits in Montana and South Carolina.
John Eastman, chairman of the anti-gay marriage National Organization for Marriage, agreed with Warbelow that federal judges almost certainly will rule to allow same-sex marriages. But Eastman urged state officials to continue to put up a legal fight until the Supreme Court decides the issue one way or the other.
“Until the Supreme Court decides it, this remains a viable option,” Eastman said.
State officials in Colorado, North Carolina and West Virginia chose a different path. They helped speed the process for legalizing gay marriage in their states when they announced they would no longer defend their state laws in the aftermath of the appeals court rulings.
The latest wave of court rulings that has made same-sex marriage legal in 32 states and the District of Columbia began with the unexpected decision by the Supreme Court on Oct. 6 to reject appeals by five states hoping to keep their bans in place.
The high court’s refusal to step in affected appeals courts in Chicago, Denver and Richmond, Virginia, which in turn oversee 11 states that did not previously allow same-sex couples to marry. Since the justices’ terse order, same-sex couples have been able to marry in nine of those 11 states, with Wyoming on Tuesday becoming the latest to permit it. Only Kansas and South Carolina have not followed suit.
A day after the Supreme Court action, the federal appeals court in San Francisco struck down gay marriage bans in Idaho and Nevada in a ruling that also appeared to apply to Alaska, Arizona and Montana. Since then, federal judges in Alaska and Arizona quickly ruled on pending marriage lawsuits. But in Montana, a federal judge has set a hearing in a marriage challenge for Nov. 20.
No court date has been set for South Carolina, where Attorney General Alan Wilson has said he will continue to defend state marriage law and predicted a final ruling could be months away.
The timing of court action varies from judge to judge, depending on what other matters are before the court and how much say the judge wants each side to have, Warbelow said.
In North Carolina, U.S. District Judge Max O. Cogburn Jr. acted on his own to strike down the state ban after the Richmond-based appeals court ruling became final.
James Esseks, leader of the American Civil Liberties Union’s same-sex marriage efforts, said Wilson and other officials have no excuse to keep up their fight. “The circuit law is what it is. They need a little push and we’ll give it to them,” Esseks said.