“I’m just disappointed,” state Rep. Kevin Jones, R-Wellsville, said. “I really struggle with the power we the people give the Supreme Court in the first place, honestly, when it comes to almost making law versus interpreting law.”
A divided Supreme Court announced Wednesday that a law denying federal benefits to legally married same-sex couples is unconstitutional, providing legal fodder for potential challenges to Kansas’ ban on gay marriage.
The high court determined in a 5-4 vote that a portion of the 1996 Defense of Marriage Act is “a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.
“[The Defense of Marriage Act] singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty,” Justice Anthony Kennedy, who provided the affirming swing vote, wrote in the court’s opinion. “The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. ... By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.”
A devout Christian and a former pastor, Jones said marriage is an institution between God, one man and one woman. The high court’s decision, he added, doesn’t truly address civil rights or equality, rather it serves as an affront to traditional Christian ideas of marriage.
The Supreme Court’s ruling strikes down portions of DOMA that restrict more than a 1,000 federal benefits and protections for same sex couples, including military benefits, Social Security survivor benefits, health care protections, federal estate tax breaks and many others. The nullified law, which defined marriage as only between a man and a woman, now allows all legally married couples in the U.S. to receive the same federal benefits enjoyed by their heterosexual counterparts.
“It’s not a civil issue. It’s a moral issue — plain and simple,” Jones said. “Fighting to term a Christian belief, marriage, that our country has adopted, to take that term and incorporate something that Christians think is sin is not only a smack in the face to more than half our country, but it’s also literally ripping apart history.”
While varied in their implications, the two rulings spurred activist and gay rights celebrations across the nation and in Kansas.
“We are elated that the court stood on the right side of history to rule for justice, fairness and equality for all citizens,” Thomas Witt, executive director of the Kansas Equality Coalition, said, adding that his organization has helped in organizing rallies in Lawrence, Topeka, Wichita, Hutchinson, Salina and Dodge City. “There are thousands of lesbian, gay, bi and transgender Kansans, their families, friends and supporters, who are ecstatic about the Supreme Court’s decisions.”
But as activists and supporters celebrated Wednesday, at least one Kansas congressman vowed to begin work to redefine marriage as an institution between only a man and woman. U.S. Rep. Tim Huelskamp, R-Kan., said Wednesday he plans to spearhead a conservative effort to file a constitutional amendment to restore DOMA.
“My response to this will be later this week to file a federal marriage amendment,” Huelskamp said, according to media reports. “A robust national debate over marriage will continue in the public square, and it is my hope that states will define marriage as the union between one man and one woman.”
Notwithstanding, Wednesday’s ruling apparently is emblematic not only of a deeply divided high court, but also shifting public opinion on gay marriage. In 2009, 54 percent of Americans stated that they opposed gay marriage while only 37 percent approved, according to a Pew Research Center survey. Three years later in 2012, the survey indicated that 48 percent Americans support gay marriage, with 43 percent voicing dissent.
In 2005, 70 percent of Sunflower State voters supported the Kansas Marriage Amendment, which defines marriage as “a civil contract between one man and one woman only” and states “any other marriage is contrary to public policy and void.”
With a ban on gay marriage on the books in Kansas, freshman legislator Jones said he still believes in the amendment and noted that even the alternative of civil unions still would encourage what he believes to be sinful behavior.
“It’s not a civil issue, it’s just a choice,” Jones said. “You can’t govern sin. You can put out laws that say you shall not murder, but people are still going to make the choice to do those things. When it comes to civil unions, I shouldn’t be able to govern — when it comes to civil unions — but to give incentives [in reference to federal marriage benefits] that I believe is morally wrong, no I wouldn’t be for that.”
While the Kansas Marriage Amendment might be the law of the land today, Rick Levy, the J.B. Smith distinguished professor of constitutional law at the University of Kansas School of Law, said Wednesday’s Supreme Court ruling could have a ripple effect that eventually makes its way to the Sunflower State.
“It makes it somewhat more likely that the Kansas Marriage Amendment would be considered to be invalidated as a matter of Constitutional law,” Levy said. “It doesn’t directly apply to the Kansas amendment, but the reasoning of the court arguably would apply and would suggest that the amendment would be struck down.”
Before the law could be stuck down, Levy said, a same-sex couple would need to apply for a marriage license, and thus prompt a legal challenge. Such a challenge likely would originate within a trial court, he said, and then could move to either a state or federal appeals court. That process could take several years, he said, and is dependent on several factors, including the length of the challenge’s trial and its subsequent appeals.
Levy added that Kansas’ criminal sodomy law, for example, which was deemed unconstitutional in the 2003 U.S. Supreme Court ruling Lawrence v. Texas, could still remain on the books for some time.