Couple seeks to defend state's same-sex marriage ban

Phillip and Sandra Unruh are very clear: Same-sex marriage in Kansas would violate their property rights.

The couple, who lives in the small town of Harper southwest of Wichita, has filed a motion to intervene as defendants in an ACLU lawsuit seeking to allow same-sex marriages in the state. The couple argues in a filing prepared by Phillip Unruh, an attorney, that same-sex marriage would rob them of their property rights by devaluing their marriage.

A U.S. Supreme Court decision earlier this month declining to hear challenges to state same-sex marriage bans set off a chain reaction of legal maneuvering that has legalized same-sex marriage in several states, but so far not in Kansas.

The filing from Unruh argues that if same-sex marriage becomes legal, the meaning of marriage will be fundamentally altered and that the couple’s property rights will be taken away. In the filing, the Unruhs argue that their marriage should be viewed as a kind of property, which would be altered by same-sex marriage.

Kansas adopted a constitutional ban on same-sex marriage in 2005. The ban passed with 70 percent of the vote.

Unruh’s filing contends that the principles “of equality regarding the marriage relationship and the same-sex marriage relationship do not apply as the two relationships differ as apples and oranges.”

“The extension of marriage to same-sex relationships inflicts profound harm on the Unruhs. For the courts to say that from this day forward marriage in Kansas must be extended to a same-sex couple is and for ever will be deeply disturbing to the Unruhs and undoubtedly to those that cared enough to pass an amendment to protect it, a departure from the joy and celebration normally associated with the word marriage,” the filing says.

Doug Bonney, chief counsel and legal director for the ACLU of Kansas, dismissed the argument.

“The 10th Circuit has already rejected the arguments that same-sex marriage bans can be justified based on a desire to preserve so-called ‘traditional marriage.’ The fact that gay and lesbian couples get married has absolutely no impact on the marriages of anyone else,” Bonney said.

In an interview, Phillip Unruh said he and his wife decided to try to intervene in the case because of concerns about the future of marriage. Phillip has been practicing law for more than 34 years, according to his legal website.

“I believe now is the time for peoples whose marriages are at risk, now is the time for them to step forward to declare their rights,” Unruh said.

Unruh said gay individuals are free to act as they want, but he suggested individuals in same-sex relationships should instead call their relationships by a name other than marriage.

“It’s a deeply felt feeling,” Unruh said. “It’s disturbing to think what has been called marriage for my relationship now is extended to people of the same sex.”

The Johnson County District Court clerk’s office has issued a same-sex marriage license, but the Kansas Supreme Court halted any more licenses from being issued after Kansas Attorney General Derek Schmidt asked the high court to intervene. The Kansas Supreme Court has scheduled a Nov. 6 hearing.

In the meantime, the ACLU is seeking a federal court order allowing the marriages to continue. The Unruhs are seeking to intervene in the federal lawsuit.

A hearing had been scheduled in federal court for Friday, but U.S. District Judge Daniel Crabtree called off the hearing following a conference call late Thursday afternoon. The Kansas Attorney General’s office filed its response to the ACLU earlier in the day and the ACLU asked to have until Monday to file its own reply.

It is now unclear whether a hearing will take place at all. During the call, Crabtree indicated it is possible he may be able to reach a decision based on each side’s written briefs alone, without the need for oral arguments.