Three Ways Sam Brownback Could Keep Gay Marriage Illegal in Kansas: Some Free Advice

In the few days since the Supreme Court declined to review the decision of the 10th Circuit Court that Utah’s same-sex marriage ban was unconstitutional, there has been a great deal of talk about how Kansas’s own same-sex marriage ban must fall, since we are under the 10th Circuit’s jurisdiction.

Governor Brownback is, at present, resisting that talk. Referencing the popular vote back in 2005 which defined marriage in the Kansas state constitution so as to exclude gay and lesbian couples, the governor said: “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.”

Well, I’m here to help. I know of three strategies that could bolster Brownback’s insistence on standing metaphorically before county clerks’ offices across the state, refusing entrance to both the interpretations of the federal judiciary, and the gay and lesbians citizens of Kansas who hope their way of life, or at least the domestic side of it, has finally achieved some legal recognition.

1) Invoke the 10th Amendment! This would be the constitutionalist/Tea Party approach. The 10th amendment to the U.S. Constitution reads “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Many legal scholars argue that, with a few notable exceptions, this amendment is mostly a dead letter, especially ever since the American people supported legislation during the Civil Rights movement that empowered the national government to stop individual states from discriminating in education, public accommodations, housing, voting, and–yes–marriage.

Still, that doesn’t mean it can’t be tried. The preferred response by many to the Affordable Care Act–namely, to call for the creation of a multi-state “health care compact” that would operate without federal involvement–already borders on embracing state sovereignty, so it would be interesting to see the Brownback administration pursue that option fully.

2) Abolish marriage! This would be the libertarian approach. Complete the separation of church and state by ending all legal marriage entanglements with all religious bodies in Kansas. If churches want to offer something which they call “marriage” to their followers, they can do so, entirely on their own terms, without any state recognition whatsoever. On the other side of things, if the national or state constitution requires (or if individual legislatures decide) that some provision be made for recognizing any number of different types of couples for tax purposes or reasons of inheritance, custody, etc., the secretary of state’s office can issue a bunch of unceremonious licenses to that effect.

Given the rising influence of libertarian-inclined conservatives, I imagine this approach might result some surprising left-right alliances being formed here in Kansas. But unfortunately for the governor, embracing it would also probably scandalize the social conservatives upon which his re-election probably depends.

3) Secede from the union! This would be the ultimate combination of both the above two approaches. You would shrink the federal government’s influence–and thus the reach of the federal judiciary’s constitutional interpretations--by escaping it entirely, and follow through on the principle of state sovereignty be declaring independence–thus allowing Kansas to define citizenship and marriage as it sees fit. Texas would be so jealous of us getting there first.

I suppose I should note that, as a (late but now firm) supporter of the recognition of same-sex marriages, I am personally opposed to pursuing any of the above responses to the legal actions surely waiting in the wake of the 10th Circuit’s decision--and, more importantly, in the wake of United States v. Windsor. Also, I strongly doubt any of them would be successful anyway. But as a political scientist who enjoys a good argument, and--more importantly--as someone who overall thinks our increasing dysfunctional democratic system needs a serious constitutional challenge, I say: bring them on.