Kansas: Same-sex couples' ability to marry in some counties should prompt lawsuit's dismissal

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TOPEKA, Kansas — Kansas argues in a new court filing that same-sex couples' ability to obtain marriage licenses in many counties should prompt a federal judge to dismiss a lawsuit filed by gay and lesbian couples.

But an American Civil Liberties Union attorney representing the couples said Tuesday that the state's lawyers are rehashing familiar legal arguments in hopes of preventing government agencies from being required to recognize same-sex marriages.

Attorneys for six state officials named as defendants filed what were expected to be their last written arguments before U.S. District Judge Daniel Crabtree considers whether Kansas should be permanently barred from enforcing laws and a voter-approved provision in its constitution banning same-sex marriage. He ruled in November that the state couldn't enforce the ban while the lawsuit was heard, and the U.S. Supreme Court upheld his action.

The nation's highest court could decide in June in another case whether all states must allow same-sex couples to marry.

Two lesbian couples initially filed the Kansas lawsuit in October after being denied marriage licenses in Douglas and Sedgwick counties. With the federal lawsuit pending, the Kansas Supreme Court left it to the chief judges in each of the state's 31 judicial districts whether marriage licenses could be issued to same-sex couples, and it's allowed in a majority of the state's 105 counties — including Douglas and Sedgwick.

Three other same-sex couples later joined the lawsuit, hoping to force the state to recognize their marriages for health insurance, driver's licenses and income tax filings.

The state's lawyers argued that those couples didn't spell out how they're being treated differently from heterosexual couples or show that they're being harmed financially.

And the state's lawyers noted that the couples who initially filed the lawsuit have not sought marriage licenses since counties began issuing them to same-sex couples — and plan to wait until the lawsuit is resolved.

"The court would be doing the plaintiffs a favor by dismissing this lawsuit," the state said in its filing.

But Bonney said the arguments are similar to ones the state has made in past filings.

"There's nothing really new in any of this," he said.


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