SCOTUS Lifts Stay on Kansas Same-Sex Marriage

United States Supreme Court Justice Sonia Sotomayor issued an order on Monday blocking same-sex marriage in Kansas after the Kansas Attorney General requested an injunction (read more in the Jurist at http://jurist.org/paperchase/) but the stay was lifted by the end of the week, making same-sex marriage legal in Kansas, despite the democratic process.  

This flurry of legal rulings have followed several attempts to reserve regulation of domestic relations to the states in the face of federal decisions denying state regulation as unconstitutional. This latest request came after the Tenth Circuit ruled that state bans on same-sex marriage are unconstitutional, binding federal courts in this circuit by that ruling, and forcing Kansas into marriage redefinition accommodation. The Tenth Circuit decision was in conflict with a previous Kansas Supreme Court decision that upheld Kansas' definition of marriage.  Read that decision blocking the issuance of marriage licenses to same-sex couples here.  The High Court's intervention initially prevented the issuance of marriage licenses to same-sex couples in Kansas, but Wednesday night's lift of the stay now requires Kansas to do so.  "The application for the stay contended that the federal judge's finding that same-sex marriage bans are unconstitutional interferes with the state supreme court's review and circumvents the state court's power," according to the Jurist.  The stay was lifted by a 7-2 vote of the full Court, with Justice Scalia and Justice Thomas voting in favor of states rights.

Kansas, in an attempt to protect its rights, made heavy use of the United States Court of Appeals for the Sixth Circuit's decision last week which upheld marriage as a relationship between a man and a woman in Kentucky, Michigan, Ohio, and Tennessee. (See FamilyRestoration post on this at http://regentfamilyrestoration.blogspot.com/2014/11/marriage-upheld-by-federal-court.html.)  The Sixth Circuit's ruling creates a split of authority for the first time among the federal appeals courts and increases the likelihood of the matter going to the Supreme Court, despite what happened with Kansas law. 

The events of the past few weeks regarding federal intervention of state marriage have left the States themselves and much of the state of the law on marriage in flux and great confusion.  This is significant because federalist constitutional principles leave the matters of domestic relations regulations to the states, as explained at http://ssrn.com/abstract=2462093.  Strong families rely on good marriage policy that is clearly understood.  With the High Court’s latest ruling forcing Kansas to issue marriage licenses to same-sex couples states are denied that power.  A great deal of this legal uncertainty and disorder is based on the Justices not following their own ruling in Windsor v. United States that reiterated at least 29 times that states do indeed have the right to regulate marriage (see http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2462093), making the events of the last few weeks seem a bit more like political pressure than legal jurisprudence.


  1. I believe that it should be left up to the Sovereign States to decide what a marriage should be; however, with the latest ruling from the 6th Circuit, I believe it is highly likely that the Supreme Court will have a say in the matter. Given the dynamics of the High Court, it is likely that they will rule in favor of gay marriage and it will be the law of the land. Despite our personal beliefs on the matter, every person deserves to be treated with love and respect. Christians should not treat newly married gays any differently. We are all sinners and committing adultery and divorce are no greater or lesser of a sin in the eyes of God and an alarming rate of Christians commit sins like these. Even if the Court decides in favor of gay marriage, the Church will ultimately have the final say because they Church will decide how to define and recognize a marriage.

  2. Historically, marriage was something that was left up to the churches and communities. It was not something that was decided or conducted by government. In the United States, I believe, that the government officially took an interested role in marriage when benefits were attached to marriage. Benefits having to do with things like taxes. At that point, the government snuck into marriage. At the rate that we are going, the government probably believes that they have unlimited control within the marriage industry and will take it as far as they could. Unfortunately, I think that Christians have lost this battle. God knew that this is going to happen, and it's happening. I think Christians now should focus their efforts on things like showing love to homosexuals. Showing Gods love as opposed to criticizing them and their decisions to sin. Though, as a Christian I try to live as purely as I could, I know that I sin every day, multiple times a day. I believe that all sins are equal in God's eyes. I think we should focus our efforts politically to promote Christianity and God in other ways than by promoting homophobia, as the liberals would call it.

  3. As a Christian, who truly believes that I have been called to the practice of law “for such a time as this,” I am unwilling to accept that Satan has won the political war over traditional, Godly marriage between one man and one woman. Yes, Satan has won his victories, but for me, I will never give up politically (nor spiritually) on upholding traditional marriage and God’s Biblical truth. Similarly, I will never give up on the political fight against abortion.

    I absolutely agree that we need to treat homosexuals with love and respect. However, we cannot condone their actions. We, as imperfect, sinful Christians, are not to judge but we are to make judgments. Our judgments come from God and his Holy Word, which clearly defines marriage as between one man and one woman. “[A]t the beginning the Creator ‘made them male and female,’ and said, ‘For this reason a man will leave his father and mother and be united to his wife, and the two will become one flesh[.]' So they are no longer two, but one flesh” (Matthew 19:4-6).

    I hope that at the end of my life, I will be able to say that “I have fought the good fight, I have finished the course, I have kept the faith” (2 Timothy 4:7). And what is the Faith? It is God’s Word from the Holy Bible.