Opponents of same sex marriage in Kansas fear a ruling by the California Supreme Court could pave the way for same sex unions here, despite overwhelming opposition by Kansas voters.

On Tuesday, a gay couple from Lawrence took advantage of the California high court ruling and was married in California. The couple indicated in the Lawrence Journal World that they believed Kansas should recognize their union because of the full faith and credit clause of the U.S. Constitution, which requires states to recognize the actions of other states.

Rep. Lance Kinzer, an Olathe Republican who opposes gay marriage, said he believed it was likely that the Lawrence couple or other same sex Kansas couples who participate in wedding ceremonies in California could use the courts to attempt to force Kansas to recognize their unions, despite overwhelming approval by voters in 2005 of a Constitutional amendment that defines marriage as the union of a man and a woman.

Kinzer said a legal framework already exists that gay couples could take advantage of to attempt to force recognition of their unions.

He pointed to a 2005 Kansas Supreme Court decision (Kansas Supreme Court vs. Limon). In that case, Justice Marla Luckert, who wrote the opinion, cited a U.S. Supreme Court case in which Justice Scalia dissented from the majority: "Justice Scalia wrote a dissenting opinion which Chief Justice Rehnquist and Justice Thomas joined. For our purposes, the dissent is instructive because of its discussion of what the majority opinion does or does not do. Especially significant to our review is Justice Scalia's conclusion that the majority opinion means that ‘the promotion of majoritarian sexual morality is not even a legitimate state interest’ and that criminal legislation on matters such as ‘fornication, bigamy, adultery, adult incest, bestiality, and obscenity’ cannot ‘survive rational-basis review’."

Luckert’s opinion would seem to suggest that the Kansas high court accepts the premise expressed by the majority of the U.S. Supreme Court, and summarized by Justice Scalia in his dissent, that “the promotion of majoritarian sexual morality is not even a legitimate state interest.”

The Kansas Supreme Court, Kinzer and others theorized, could apply that same sentiment, if a case was brought before it by a gay couple seeking to have a union recognized.

“The structure is in place for a strong challenge,” Kinzer said.

If, through judicial fiat, marriage is redefined to include same-sex couples, Kinzer said potential conflicts with the Constitutional right of religious liberty would be rampant.

“What you’ll find in a whole host of areas is that as same sex marriage gains standing there will be an assault on religious liberty,” Kinzer said.

For example, would churches that consider homosexuality immoral be forced to allow gay wedding ceremonies at their churches or risk their tax-exempt status? Would a court clerk who shares the view that homosexuality is immoral and objectionable be forced against his or her will to provide a marriage license to a gay couple? Will church affiliated adoption groups be forced to work with gay couples?  

Some also fear that if courts affirm a right to gay marriage, it could create precedent for affirmations of other behaviors that are considered objectionable by some.

At a panel discussion at the National Press Club in late May sponsored by the Family Research Council, Glen Lavy, senior counsel for the Alliance Defense Fund, said he had serious concerns about California’s treatment of same sex marriage, because it is geared toward the sexuality of a person.

“The arguments for redefining marriage to include same sex couples are the exact same arguments being made to legalize polygamy, to legalize incestuous marriages," Lavy said. "The court's footnotes citing old case law is not going to have any weight whatsoever when polygamists come to that court or another court making the same arguments claiming my sexual orientation is to have multiple spouses. For example, how do you tell a bisexual who wants to marry a man and a woman that that person's sexual orientation is deserving of less consideration than the sexual orientation of a same sex couple? What is the difference? Legally, I don't think there is any difference."

Kinzer also expressed profound concerns about any law that was geared toward the sexuality of a person. During the debate over Kansas’ constitutional amendment that defined marriage as the union of one man and one woman, Kinzer wrote:

"Absent this provision (the amendment) the door is left open for so called civil unions which frankly make even less sense than homosexual marriage. For the state to extend rights and incidents of marriage to homosexual couples, and not to say two elderly spinster sisters who have been living together for 50 years, is to make a fetish of homosexual copulation.

“Put another way, the same reasons we don’t grant rights and incidents of marriage to the two sisters would apply with at least as much force in the case of a homosexual couple. The mere fact that the one of the relationships involves sexual conduct is no basis for granting it special privileges while denying them to the other.”

The Week in Review