The federal district court injunction issued by Judge Crabtree on November 4, 2014, is now in force, the U.S. Supreme Court having vacated the stay late yesterday afternoon. As the ACLU of Kansas reads it, Judge Crabtree’s order requires stated district court clerks throughout the State of Kansas to stop enforcing Kansas’s unconstitutional prohibition on marriage for same-sex couples. In his Memorandum and Order, Judge Crabtree specifically held that Kansas’s marriage bans are unconstitutional on their face and cannot be enforced against anyone under any circumstances:
The Court construes plaintiffs' Complaint to allege that Kansas' laws banning same-sex marriage are ones that are unconstitutional on their face (as opposed to a claim challenging the way that Kansas has applied those laws to them). A claim is a facial challenge when “it is not limited to plaintiffs' particular case, but challenges application of the law more broadly.” John Doe No. 1 v. Reed, 561 U.S. 186, 194 (2010). If plaintiffs succeed in establishing no circumstances exist under which Kansas could apply its same-sex marriage ban permissibly, the Court may invalidate the laws in their entirety . . . . Doe v. City of Albuquerque, 667 F.3d 1111, 1127 (10th Cir.2012) (“[A] successful facial attack means the statute is wholly invalid and cannot be applied to anyone.”) (quoting Ezell v. City of Chicago, 651 F.3d 684, 698–99 (7th Cir.2011)
Marie v. Moser, 2014 WL 5598128, at *7. Because Kansas’s marriage bans are unconstitutional across the board, all governmental officials have a duty to stop enforcing and applying those laws. Cf. Alliance to End Repression v. Rochford, 565 F.2d 975, 980 (7th Cir. 1977) (“[I]t can be assumed that if the court declares the statute or regulation unconstitutional then the responsible government officials will discontinue the statute's enforcement.”)
In addition, because the defendants in Mari v. Moser are being sued in their official capacities, an injunction against them is binding on all other governmental officials as a matter of privity. See Spiess v. Meyers, 483 F. Supp. 2d 1082, 1089 (D. Kan. 2007) (privity exists between “between government employees in their official capacities”). Accordingly, the ruling with respect to defendants in this case applies with equal force to all other State officials acting in their official capacity. It is our expectation that the Attorney General and all other Kansas officials will – like their counterparts in Oklahoma, Utah, Colorado, and Wyoming – stop enforcing the marriage bans now that the stay has been lifted and the district court’s injunction is in effect.
Doug Bonney Legal Director, ACLU Foundation of Kansas
Marriage Equality Statement by ACLU of Kansas