Some of those red states denied by the Supreme Court are still resisting gay marriage

Following Monday’s unexpected Supreme Court decision not to hear appeals over gay marriage, Julia and Regina Johnson went to the Reno County Clerk’s office to apply for a marriage license.

After 16 years and six kids, it was time. They watched as the clerk scratched out the word “man,” explaining that new forms had not yet been printed yet.

But the Johnsons live in Kansas, one of several conservative-leaning states seemingly bound by the high court’s decision where officials are taking a stand and refusing to issue marriage licenses to same-sex couples. Hours after they’d submitted their paperwork, they got a call from the clerk saying their application had been denied.

“It was wow — it sounds surreal,” Julia Johnson said. “It was actually surreal for us.”

Reno County Chief Judge Patricia Macke Dick later said she had no choice but to deny their license because Kansas’ same-sex marriage ban, specifically, had not been overturned. The only related lawsuit now in Kansas courts is one filed by two couples who married in other states and sued Kansas over tax treatment. Their case is being heard next month.

Kansas Attorney General Derek Schmidt noted that, to date, no court has squarely decided whether the Kansas Constitution’s prohibition of same-sex marriage is invalid and that the state will deal with any litigation when it comes. Wyoming and South Carolina are taking similar stands.

“The people have spoken on this,” said Kansas’ Republican governor, Sam Brownback, who is fighting a close re-election battle in which he needs conservative support.

“I don’t know how much more you can bolster it than to have a vote of the people to put in the constitution that marriage is the union of a man and a woman,” he said.

Wyoming’s Republican governor, Matt Mead, said the state will defend its constitution’s definition of marriage as permissible only between a man and woman. He said he doesn’t think the Supreme Court’s action this week applies to a Wyoming case challenging that definition, which is set for a hearing in December.

An attorney for gay rights group Wyoming Equality, which is one of the plaintiffs, took issue with Mead’s comment that the Supreme Court action had no impact on the state case.

“At the end of the day, the 10th Circuit’s ruling is now the law in Wyoming, which means that same-sex couples now have the fundamental right to get married in Wyoming and the governor and the AG’s office are trying to interfere with that right,” said attorney James Lyman.

And by Tuesday afternoon, four Wyoming couples had filed a federal lawsuit against the governor, Laramie County Clerk Debbye Lathrop and other state officials seeking the immediate right to marry.

South Carolina’s attorney general, Alan Wilson, said if a court specifically rules against that state’s gay marriage ban, he will then decide how to proceed. He said a judge hasn’t ruled in a lawsuit by a same-sex couple from South Carolina who were married in Washington, D.C., and that he must defend the state’s ban until the judge rules that a 4th U.S. Circuit Court of Appeals decision striking down same-sex marriage bans also applies to the South Carolina case.

In liberal Colorado, which is also covered by the same 10th Circuit Court of Appeals as Kansas, gay marriage is now officially legal. Attorney General John Suthers said Tuesday that all of the state’s counties must issue the licenses.

But in Kansas, it will likely take a federal court ruling directly about that state to change its gay marriage ban. The American Civil Liberties Union spent Tuesday reaching out to lawyers to join its federal challenge seeking an immediate court order blocking the ban, given the precedent in the 10th Circuit. It could be filed as soon as next week, said Doug Bonney, legal director of the ACLU of Kansas and Western Missouri.

Nationally, the ACLU plans to fight state bans from circuit court to circuit court, said staff attorney Joshua Black, noting Tuesday’s decision in the 9th U.S. Circuit Court striking down Idaho and Nevada’s bans.

In Wyoming, three same-sex couples and the gay rights group Wyoming Equality have a lawsuit pending contesting the state’s definition of marriage as solely between a man and woman. It is set for a hearing in December.