By MIKE CORN
From simmering uncertainty, the issue of same-sex marriage in Kansas erupted into a firestorm late Friday.
Just as Kansas Attorney General Derek Schmidt late Friday sought to halt the issuance of marriage licenses to same-sex couples, the American Civil Liberties of Kansas filed a pair of lawsuits seeking to force court clerks to move forward with issuing them.
Schmidt filed a petition for a writ of mandamus with the Kansas Supreme Court, asking the state's highest court for clarity on what procedure district courts should follow in handling marriage license applications for same-sex couples.
His petition is in response to a Johnson County district judge's decision to permit the issuance of the licenses, so far the only court in the state deciding to do so. At least one couple was wed Friday in Johnson County after receiving a license.
In response, the Kansas Supreme Court offered a lukewarm response, but ultimately decided to temporarily bar Johnson County from issuing licenses. Applications, however, "may continue to be accepted during the period of the stay," Chief Justice Lawton Nuss said in an order.
Nuss wouldn't grant Schmidt all he was asking for.
"Simply put, the attorney general's right to relief on the merits is not clear," he wrote.
The temporary stay, Nuss wrote, was "in the interest of establishing statewide consistency... ."
Johnson County has been alone in the state in deciding to issue marriage licenses. Many district courts have decided to accept applications, but ultimately decline to issue the license.
In Ellis County, for example, District Judge Ed Bouker on Thursday issued an administrative order setting out the reasons why the 23rd Judicial District won't issue licenses to same-sex couples. Bouker's order affects Ellis, Rooks, Trego and Gove counties.
Bouker's order was patterned on a similar order filed in Douglas County, where one of the ACLU lawsuits was filed Friday. A second lawsuit was filed in Sedgwick County, which also declined to issue a license.
ACLU-Kansas said in a statement that it would seek an injunction and temporary restraining order, then seek to have the case heard early this week.
"The ACLU of Kansas understands that the freedom to marry is an important right. Marriage equality is the law in more than 25 states now," said Susan Estes, ACLU-Kansas board president, "and it's time for marriage equality in Kansas. All loving and committed couples -- without restrictions of state lines or sexual orientation -- should have access to the protections that marriage provides."
Schmidt's action against Johnson County's chief judge and district court clerk was heralded by Gov. Sam Brownback.
"I swore an oath to support the constitution of the state of Kansas," he said in a statement. "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."
But Schmidt's writ could actually pave the way for statewide implementation of a rule to allow same-sex marriage despite the constitutional prohibition.
"The Johnson County Court's decision is an outlier," Schmidt said in a statement. Numerous other Kansas courts have concluded, as I have, that the law in Kansas remains unchanged and same-sex marriage remains unlawful unless and until a court of competent jurisdiction, deciding a properly presented case or controversy, holds otherwise as a matter of federal constitutional law. Because that has not happened, I have concluded the Judge's decision to order the issuance of licenses is unlawful and I now have no choice but to ask the Kansas Supreme Court to set it aside."
"I am a strong advocate for an orderly resolution of this dispute in a way that can be accepted as legally correct and that allows the state to defend its constitutional provision and its laws."
The confusion in Kansas is a result of the U.S. Supreme Court's refusal to hear appeals in a number of cases allowing same-sex marriage, including two cases in the Denver-based 10th Circuit Court of Appeals, which covers Kansas.
The Kansas Supreme Court set a hearing in the case for Nov. 6.
While the Supreme Court gave Johnson County officials until Oct. 21 to respond, they also said the judge might not have to appear before the court.
The court also set Oct. 28 as the deadline for anyone else joining the case.