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Same-sex marriage became legal inKansas following theU.S. Supreme Court's decision inObergefell v. Hodges on June 26, 2015, which found the denial of marriage rights to same-sex couples unconstitutional. By June 30, all 31 judicial districts and all 105Kansas counties were issuingmarriage licenses to same-sex couples or had agreed to do so. Kansas state agencies initially delayed recognition of same-sex marriages for purposes including but not limited to changing names, ascribing health benefits and filing joint tax returns, but began doing so on July 6.
Kansas had previously definedmarriage in itsconstitution as the "union of one man and one woman" and had bystatute denied recognition to same-sex marriages from other jurisdictions. Before the Supreme Court resolved the issue, a series of lawsuits had challenged the state's policies with mixed success. InMarie v. Moser, U.S. District JudgeDaniel D. Crabtree issued apreliminary injunction barring the Secretary of theKansas Department of Health and Environment,Douglas County andSedgwick County from enforcing Kansas' same-sex marriage ban on November 4, 2014. He temporarilystayed theinjunction until November 11 to give state authorities time toappeal. On November 7, 2014, theTenth Circuit Court of Appeals denied state officials' request for a stay pending appeal. On November 12, 2014, the U.S. Supreme Court denied the state officials' request for a stay pending the appeal ofMarie. As the injunction inMarie was set to take effect, theKansas Attorney General,Derek Schmidt, contended that Crabtree's preliminary injunction only applied to the two counties involved in the lawsuit, not statewide. TheAmerican Civil Liberties Union maintained that the injunction applied to all 105 of the state's counties. Some of the state district judges, who issue marriage licenses in Kansas, refused to authorize the issuing of marriage licenses to same-sex couples based on their own interpretation of the legal situation.
On November 18, 2014, theKansas Supreme Court, acting inSchmidt v. Moriarty, allowed the licensing of same-sex marriages in the state's Tenth Judicial District, which coversJohnson County, to proceed. The court ruled that it was within the jurisdiction of Judge Kevin P. Moriarty, as chief judge of that district, to authorize the issuance of marriage licenses to same-sex couples based on his determination of the law. It left the issue of whether to license same-sex marriages to each judicial district.
On April 4, 1996, theKansas State Senate voted 39–1 in favor of a bill banning same-sex marriage and recognition of same-sex marriage performed out of state. TheKansas House of Representatives also passed the bill, and it was signed into law by GovernorBill Graves on April 11, 1996.[1] A motion to pull legislation repealing the ban, introduced by representativesBrandon Woodard,Susan Ruiz andHeather Meyer in 2023, out of the Federal and State Affairs Committee and place it on the calendar for debate by the House failed in April 2024 by a 43–61 vote.[2] The language banning same-sex marriage, while unenforceable, remains on the books.
On January 13, 2005, the State Senate voted 28–11 in favor ofKansas Amendment 1, aconstitutional amendment banning same-sex marriage and the "rights or incidents of marriage".[3] The House of Representatives voted 86–37 in favor of the amendment on February 2, 2005.[4] On April 5, 2005, Kansas voters approved the amendment by a margin of more than 2 to 1.[5] On January 26, 2017, Tom Witt, executive director ofEquality Kansas, submitted bills to theKansas Legislature to repeal the state's now-defunct constitutional ban on same-sex marriage and make appropriate changes in statutory law. The measures were unsuccessful.[6][7][8]
On December 30, 2013, private lawyers inTopeka filed alawsuit in state court on behalf of two same-sex couples, Roberta and Julia Woodrick ofLawrence and Michael Nelson and Charles Dedmon ofAlma, seeking recognition of theirmarriage licenses from other jurisdictions in order to be allowed to file joint state income tax returns.[9] The lawsuit,Nelson v. Kansas Department of Revenue, stemmed from the June 2013 Supreme Court ruling inUnited States v. Windsor striking down part of theDefense of Marriage Act, after which the federalInternal Revenue Service began accepting joint income tax returns only if the couple's state of residence recognized themarriage. The plaintiffs' attorneys inNelson argued that theKansas Department of Revenue and theKansas Constitution's definition of marriage made it impossible for the plaintiffs to file their state taxes honestly.[10]
TheU.S. Supreme Court declined to hear two cases from theTenth Circuit Court of Appeals on October 6, 2014,Kitchen v. Herbert andBishop v. Smith. This left decisions that foundUtah's andOklahoma's bans on same-sex marriage unconstitutional as bindingprecedent on federal courts in Kansas. Legal experts expected Kansas to be required to allow same-sex marriage before long.[11]
On October 8, Judge Kevin P. Moriarty of the 10th Judicial District, coveringJohnson County, the most populous in the state, directed thecounty clerk to issue marriage licenses to same-sex couples.[12] A statement from GovernorSam Brownback said, "An overwhelming majority of Kansas voters amended the constitution to include a definition of marriage as one man and one woman. Activist judges should not overrule the people of Kansas." Kansas Attorney GeneralDerek Schmidt said he was prepared for litigation and noted that the Kansas ban on same-sex marriage had not been invalidated in court.[13] Schmidt filed a lawsuit in theKansas Supreme Court,Schmidt v. Moriarty, asking the court to order Moriarty to stop issuing the licenses.[14] Later that day, Kansas Chief JusticeLawton Nuss issued a temporaryinjunction suspending Moriarty's order authorizing the issuance of marriage licenses to same-sex couples "[i]n the interest of establishing statewide consistency" on the question of issuing licenses to same-sex couples, but the court allowed for the continued acceptance of applications for marriage licenses.[15]
On November 13, following a federal court decision striking down the state's same-sex marriage ban inMarie v. Moser, Judge Moriarty asked the court to lift its temporarystay and allow him to issue licenses to same-sex couples.[16] On November 18, the court ruled that Judge Moriarty was "within his jurisdiction" in ordering the issuance of marriage licenses to same-sex couples and lifted its stay, leaving other issues, including whether Moriarty's legal judgment was correct, to be resolved pending the final outcome ofMarie.[17][18]
Once the decisions of the Tenth Circuit Court of Appeals inKitchen v. Herbert andBishop v. Smith became binding precedent on federal courts in Kansas, theAmerican Civil Liberties Union (ACLU) filed a lawsuit,Marie v. Moser, in theU.S. District Court for the District of Kansas on October 10 on behalf of two lesbian couples who had been refused marriage licenses since the Supreme Court declined to review those decisions. The suit named as defendants Robert Moser, Secretary of theKansas Department of Health and Environment (KDHE), and two district court clerks.[19] JudgeDaniel D. Crabtree heardoral arguments on October 31.[20] On November 4, he ruled that "[b]ecause Kansas' constitution and statutes indeed do whatKitchen forbids, the Court concludes that Kansas' same-sex marriage ban violates theFourteenth Amendment to the Constitution". He stayed enforcement of his ruling until 5 p.m. on November 11 unless the state defendants informed the court before then that they would not appeal the decision.[21][22] The Tenth Circuit Court of Appeals rejected the state's request for a stay pending appeal.[23] TheWestboro Baptist Church sought tointervene in the suit without success.[24] Anticipating the expiration of Judge Crabtree's temporary stay, Chief Judge Wayne Lampson of the 29th Judicial District, coveringWyandotte County, ordered his court's clerks to issue marriage licenses to same-sex couples beginning on November 12.[25] The state defendants asked Supreme Court JusticeSonia Sotomayor, as Circuit Justice for the Tenth Circuit, to issue a stay pending appeal, and on November 10 she granted a temporary stay pending consideration of their request.[26] In their briefs, the parties disputed the significance of the order issued by the Kansas Supreme Court inSchmidt v. Moriarty and of the recent decision of theSixth Circuit Court of Appeals inDeBoer v. Snyder.[27][28] The Supreme Court denied the state's request for a stay on November 12, 2014, allowing the district court order to take effect.[29][30] Attorney General Schmidt said that order only applied toDouglas andSedgwick counties.[31]
On November 26, the plaintiffs amended their complaint to include three additional couples as plaintiffs and three additional defendants: the Secretary of the Kansas Department of Revenue, the Director of the Division of Vehicles, and the Director of the State Employee Health Plan.[32] On December 2, the Tenth Circuit denied the state's request for an initial hearingen banc of their appeal.[33] On December 8, the plaintiffs asked the court to extend its order to cover the three additional defendants and "any officers, agents, servants, employees, attorneys, other persons who are in active concert or participation with them".[34] On December 10, the three original named defendants asked the district court to remove them as defendants. Moser wrote that he had resigned on November 30 after complying with the court's order, though stayed, by modifying the state's marriage license forms to accommodate same-sex couples, leaving no further action to be compelled from his successor. He and the two clerks noted that the plaintiffs had not married even though they were able to do so and that the plaintiffs had no ongoing dispute with the clerks and therefore no longer hadstanding.[35][36] The plaintiffs' briefs in reply noted that Moser was named in his official capacity and is therefore succeeded as the principal named defendant bySusan Mosier, Interim Secretary of the KDHE. They noted that the duties of that office extend beyond providing marriage license forms and include "supervising the registration of all marriages" and related activities.[37] They argued that the clerks' compliance with a preliminary injunction does not moot the case and that the "plaintiffs are entirely within their rights in adjusting the timing of their marriage so that their claims do not become moot before final judgment is entered."[38]
Despite the replacement of Moser as Secretary of the KDHE by Mosier, the case remainedMarie v. Moser.[39] The new state defendants filed a motion to dismiss on January 20, 2015. Unlike most state officials' briefs, it cited section 2 of theDefense of Marriage Act to defend the state's refusal to recognize same-sex marriages from other jurisdictions.[40] On March 17, Judge Crabtree rejected the defendants' motions tosuspend proceedings pending action in similar cases by the U.S. Supreme Court. He gave them until April 13 to respond to the plaintiffs' motion forsummary judgment.[41] On August 10, 2015, Judge Crabtree issued an order declaring that "Article 15, § 16 of the Kansas Constitution, ... and any other Kansas statute, law, policy, or practice that prohibits issuing marriage licenses to same-sex couples in Kansas or recognizing such marriages on the same terms and conditions that apply to opposite-sex couples contravene the Fourteenth Amendment to the United States Constitution."[42]
As of November 19, 2014, state executive agencies such as the Division of Vehicles continued to deny recognition to same-sex marriages. Governor Brownback's office said policies would not change as long as the state was appealing the ruling inMarie, citing income tax filing as an example. A spokesperson for Governor Brownback said state agencies would "take the necessary legal actions once this issue is resolved." The Department of Health and Environment, on the other hand, under the U.S. district court's order not to enforce the state's ban, modified its marriage license application forms to accommodate same-sex couples.[43]
One same-sex couple married in Kansas in the week following the U.S. Supreme Court's refusal to hear appeals inKitchen andBishop on October 6, 2014. The couple applied for a marriage license on October 7, a day when most county clerks were waiting for instructions, and submitted it to their district court the next day. Following the state's 3-day waiting period, they received their license on October 10 and held their wedding service at the Johnson County Courthouse just a few hours before the Kansas Supreme Court issued an injunction inSchmidt v. Moriarty to halt the issuance of marriage licenses to same-sex couples there.[44]
Several Kansas counties began issuing marriage licenses to same-sex couples for the first time on November 13, 2014, though Attorney General Schmidt contended that the federal court order inMarie v. Moser only applied to two counties.[45] The head of the LGBT advocacy groupEquality Kansas said it was unclear whether all counties were required to issue such licenses,[46] while the ACLU said "[t]he ruling was clear" and applied to all counties.[47] Johnson County remained under a state court's temporary order not to issue such licenses.[45] More counties began issuing licenses on November 17, even while the Kansas Supreme Court was deliberating whether district judges had the authority to authorize them.[48] TheNational Organization for Marriage (NOM) urged Governor Brownback to "order local clerks to refuse to issue marriage licenses that violate Kansas law defining marriage as the union of one man and one woman." Its president,Brian Brown, said: "The question for the people of Kansas, and indeed the nation, is whether we are going to allow an illegitimate order by federal judges to trump state law and the vote of 70% of the Kansas electorate. Fifty million Americans in over thirty states have voted in support of traditional marriage and it's time that states fight back to protect the decision of those voters."[49]
Following the Kansas Supreme Court ruling inSchmidt v. Moriarty, Equality Kansas confirmed that 19 counties were issuing licenses to same-sex couples:Brown,Chase,Cherokee,Cloud,Cowley,Crawford,Douglas,Jewell,Johnson,Labette,Lincoln,Lyon,Mitchell,Republic,Riley,Sedgwick,Shawnee,Washington andWyandotte. On November 20, Judge Richard Walker, chief of the state's 9th Judicial District, said his district had begun issuing as well. Administrative directives existed in the 8th and 19th districts to issue as well.[50] Judge Ed Bouker, chief of the state's 23rd Judicial District, also mentioned he would issue licenses although "...no one has [yet] filled out an application." This added the following counties to those issuing licenses:Dickinson,Ellis,Geary,Gove,Harvey,Marion,McPherson,Morris,Rooks andTrego. A November 24 update by Equality Kansas added the following counties, not listed previously, as issuing licenses:Doniphan,Marshall, andNemaha.[51] The following day, Equality Kansas confirmed the state's 31st Judicial District was issuing licenses, addingAllen,Neosho,Wilson, andWoodson. As of December 16, Equality Kansas reported another 7 counties were issuing such licenses:Clark,Clay,Comanche,Ford,Gray,Kiowa, andMeade.[52] The six counties in the 26th Judicial District began issuing licenses during the week of December 22:Grant,Haskell,Morton,Seward,Stanton, andStevens.[53] Altogether, these 54 counties included 76% of the state's population. The 1st Judicial District, which includesAtchison andLeavenworth counties, approved issuing licenses, as did the 6th Judicial District, comprisingMiami,Linn, andBourbon counties, in January 2015.[54] The 28th Judicial District, which includesOttawa andSaline counties, began issuing licenses in February.[55] On June 26, the 27th Judicial District which includesReno agreed to start issuing marriages licenses, bringing the total population living in counties that issued same-sex marriage licenses to 86%.
The state's 4th Judicial District had announced that it "[would] have to wait for another court ruling before it will begin issuing licenses" after the ruling inMoriarty. Counties affected under this decision were:Anderson,Coffey,Franklin, andOsage.[56] Judge David Ricke of the state's 13th Judicial District indicated that the ban would remain there as well, affectingButler,Elk andGreenwood counties.[57] Twelve more counties reported as denying marriage licenses to same-sex couples were:Cheyenne,Jackson,Jefferson,Logan,Pottawatomie,Rawlins,Sheridan,Sherman,Thomas,Wabaunsee, andWallace.[53] As of February 9, most of the remaining counties had announced that they would also refuse to issue licenses.[58] These 38 counties comprised 12% of the state's population.
Eventually, after the Supreme Court's ruling inObergefell, all105 counties agreed to issue marriage licenses to same-sex couples.
Following the decision of theU.S. Supreme Court inObergefell v. Hodges on June 26, 2015, which ruled that the denial of marriage rights to same-sex couples violates theDue Process andEqual Protection clauses of theFourteenth Amendment, the number of judicial districts issuing marriage licenses to same-sex couples increased steadily. By the afternoon of June 30, all judicial districts had agreed to issue marriage licenses to same-sex couples, though some had yet to receive an application from a same-sex couple.[59][60][61] On both July 9 and 14, 2015, state attorneys announced that the state was now fully recognising the marriages of same-sex couples for state benefits, taxation and other purposes.[62][63]
On June 26, Governor Brownback decried theObergefell ruling, saying in a statement, "Activist courts should not overrule the people of this state, who have clearly supported the Kansas Constitution's definition of marriage as being between one man and one woman".[64] He later said the state would study the decision.[65] A spokesperson said, "Our office is fully reviewing and analyzing the ruling in order to understand the implications and policy changes in order to follow and comply with the law".[66] On July 7, 2015, Brownback issued anexecutive order to prohibit "state government from taking any discriminatory action against any 'individual clergy or religious leader,' or any 'religious organization' that chooses not to participate in a marriage that is inconsistent with its sincerely held religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman."[67]
It remained unclear whether or when state agencies would begin complying with the Supreme Court ruling for such purposes as filing jointtax returns and providing spousalhealth care benefits, including the state'sMedicaid program, with respect to same-sex couples married in Kansas or in other jurisdictions.[68][69] Without making an official announcement, some state agencies began doing so on July 6,[70] and July 7,[71] although details of the state's implementation remained unclear as officials made contradictory statements about the state's policy change.[72] On July 9, 2015, it was discovered that state agencies were recognizing same-sex marriages. Attorneys for the state filed a motion in federal court to dismiss a lawsuit against state agencies for not recognizing same-sex marriages, contending that agencies were now treating same-sex couples the same as heterosexual couples, eliminating the need for litigation. The state acknowledged in the brief that "driver license applications are being handled in the same manner for all married couples whatever the gender of the parties... and Kansas income tax returns filed jointly are now being accepted for all married couples."[62] A spokesperson for Governor Brownback's office announced on July 14 that married same-sex couples would be able to file joint tax returns for the 2014 tax year.[63]
On August 10, 2015, Judge Crabtree granted the plaintiffs inMarie v. Moser the specific relief they sought, but deferred judgment on their request for an injunction prohibiting enforcement of Kansas' denial of marriage rights to same-sex couples.[73]
On July 22, 2016, Judge Crabtree issued a final ruling inMarie. He denied the state's motion that the case was moot in light ofObergefell given the failure of state officials to comply with that U.S. Supreme Court ruling consistently. He issued a permanent injunction against the enforcement of Kansas' denial of marriage rights to same-sex couples. He indicated that the court would maintain supervisory oversight for three years, allowing anyone who believed a state official was not complying with the injunction to address their complaint to his court rather than file a new lawsuit.[74]
In February 2019, sevenRepublican lawmakers introduced the so-calledMarriage and Constitution Restoration Act to theKansas Legislature.[a] The bill sought to define same-sex marriages as "parody marriages", forbid the state from recognizing such marriages, and establish an "elevated marriage" option for different-sex couples who seek "higher standards of commitment".The Wichita Eagle reported that the legislation stood very little chance of advancing. Indeed, the bill died at the end of the legislative session on May 29, 2019.[76] One of the bill's sponsors, RepresentativeRon Highland, later asked to be removed as a sponsor of the legislation. His daughter, who described herself as a "proud member of the LGBTQ+ community in Kansas City", publicly condemned her father's decision to support the bill.[77]
The Law and Order Code of thePrairie Band Potawatomi Nation does not expressly forbid same-sex marriages. It states that "all marriages and divorces where an Indian person is a party, whether consummated in accordance with the State law or in accordance with Tribal law or custom, may be recorded in Tribal Court."[78] As a result, same-sex marriages validly performed in another jurisdiction, including in the state of Kansas, are legally recognized on thereservation. Similar language is found in the tribal codes of theKickapoo Tribe of Kansas,[79] and theSac and Fox Nation of Missouri in Kansas and Nebraska.[80] It is unclear if same-sex marriages are recognized on thereservation of theIowa Tribe of Kansas and Nebraska as tribal officials have not publicly commented on the issue.
While there are no records of same-sex marriages as understood from aWestern perspective being performed inNative American cultures, there is evidence for identities and behaviours that may be placed on the LGBT spectrum. Many of these cultures recognizedtwo-spirit individuals who were born male but wore women's clothing and performed everyday household work and artistic handiwork which were regarded as belonging to the feminine sphere.[81] In theChiwere language, two-spirit people are calledmihxóge (pronounced[mihxoꜜgɛ]). "Themihxóge were respectfully treated as a special class of religious leaders. Among the lateBaxoje,Jiwére-Ñút'achi elders, themihxóge were still regarded with awe for their spiritual connection and consecrated role in harmony with the Holy Grandfather spirits. [...] They're half man, half woman. And they don't have (heterosexual) relationship(s). They do something (to fulfill needs) among themselves. [...] They're not crazy. They just got that born in them. Born in their nature."[82] Two-spirit people had "visions of female deities or theMoon that served to endorse their identity".Sauk two-spirit individuals, known asnîshwi manetôwaki,[83] also characterized their gender role change as "an unfortunate destiny which they cannot avoid, being supposed to be impelled to this course by a vision from the female spirit that resides in the Moon." They were sacred and honored annually with a dance in which only those men who had hadsexual intercourse with anîshwi manetôwaki were allowed to participate.[81] ThePotawatomimnedokwé (pronounced[mnədoˈkʷɛ], plural:mnedokwék)[84] were regarded as "esteemed persons with special spiritual powers". They "sought out female company" from an early age, possessed the "work skills" of both sexes and "talked like women".Ruth Landes reported in 1970 that they were "said to possess visions…but not to practice sorcery. [Mnedokwék] exemplified a distinct category of 'power'."[85]
According to a study conducted by theWilliams Institute in 2015, Kansas would see more than 2,000 same-sex marriages in the following three years, which would add$14.1 million to the state's economy.[86]
Data from the2000 U.S. census showed that 3,973 same-sex couples were living in Kansas. By 2005, this had increased to 6,663 couples, likely attributed to same-sex couples' growing willingness to disclose their partnerships on government surveys. Same-sex couples lived in all counties of the state and constituted 0.7% of coupled households and 0.4% of all households in the state. Most couples lived inSedgwick,Johnson andWyandotte counties, but the counties with the highest percentage of same-sex couples wereKearny (0.71% of all county households) andJackson (0.68%). Same-sex partners in Kansas were on average younger than opposite-sex partners, and more likely to be employed. However, the average and median household incomes of same-sex couples were lower than different-sex couples, and same-sex couples were also far less likely to own a home than opposite-sex partners. 17% of same-sex couples in Kansas were raising children under the age of 18, with an estimated 1,797 children living in households headed by same-sex couples in 2005.[87]
The2020 U.S. census showed that there were 3,885 married same-sex couple households (1,547 male couples and 2,338 female couples) and 3,527 unmarried same-sex couple households in Kansas.[88]
On May 22, 2007, the City Commission ofLawrence voted 4–1 in favor of the creation of adomestic partnership registry. Theordinance went into effect on August 1, 2007.[89][90] A similar ordinance was enacted inTopeka on May 20, 2014, passing by a vote of 5–3. It went into effect on June 30, 2014.[91][92]
