States' rights battle looms in Kansas over same-sex marriage

by Kim Pennington, National Correspondent |
A U.S. flag flies over the Kansas state flag, a fitting display of the U.S. Supreme Court's exercise of authority over the Kansas Supreme Court.

TOPEKA, Kan. (Christian Examiner) – In a battle shaping up to test state rights against federal control, the National Organization for Marriage has urged recently re-elected Governor Sam Brownback to ignore the U.S. Supreme Court's action, Nov. 12, which lifted a stay on issuing same-sex marriage licenses in Kansas.

The stay was put into place by the Kansas Supreme Court which blocked a lower state court judge from directing local clerks to issue same-sex marriage licenses despite a state law protecting marriage as between a man and a woman.

Brian Brown, president of the NOM, said that overturning a state constitutional ban on same-sex marriage violated the U.S. constitutional principle that powers not specifically granted to the federal government are reserved to the states. He called on Brownback "to use his authority to order local clerks to refuse to issue marriage licenses in violation of state law."

The state law is a 2005 constitutional amendment passed by 70 percent of Kansas voters to define marriage as a "civil contract . . . constituted by one man and one woman only."

Terry Fox, pastor of the Summit Church in Wichita, Kansas, agrees the fundamental legal issue is states' rights.

"The people of Kansas did not change the definition of marriage," Fox told Christian Examiner. "This was forced upon us from outside forces; and not only is this a moral issue, but it's a state's rights issue. If they can order us to change our marriage laws today, what's coming next and how soon will it be?"

Fox was instrumental in bringing the constitutional amendment to the ballot in 2005.

"All of us Christian leaders are going to have to examine what we are going to do if the courts continue to force us to comply when it is against our religious convictions. In other words, we're all going to be faced with some tough decisions," he said. "We're going to have to put into effect more religious freedom bills that will give protection to Christian business owners and clergy who do not want to participate. I think you'll see a big movement of that taking place,"

As for Governor Brownback, he plans to continue defending the state's constitutional amendment.

"I swore an oath to support the Constitution of the State of Kansas," Brownback said in a statement released to media. "I will review this ruling with the attorney general and see how best we continue those efforts.

"Activist judges should not overrule the people of Kansas," he said.