Did the Kansas legislature just accidentally prevent itself from banning gay marriage?

Read the text of the "anti-Sharia" bill that passed in the Kansas state legislature last week. I'm no legal scholar, but it sure does seem like you could use this to make a case that it's now illegal to ban gay marriage in the state of Kansas. If so, that would be an amusing bit of irony, no? (Via Slacktivist)


  1. Ha. I wish. No, I think that the amendment to the state constitution they passed a few years back was based on bigotry, not religious law. (They being the majority of the people in the state, but not me — though I am a fourth generation Kansan.)

  2. That doesn’t ban religious law, only the use of foreign law to issue a court judgment if the law matches their intolerance criteria. If anything, it’ll have a bigger impact on appellate decisions which, when trying to establish if something is “unusual” will cite growing  legal trends both within the United States and worldwide.

    More importantly, it only affects “court, arbitration, tribunal or administrative agency ruling[s].” It has nothing to do with laws passed within the state, so it can still ban away if it so chooses.

      1. Court cases involving the death penalty frequently cite European law as a “global trend” against the ultimate punishment. This occurs in a number of situations, almost all being federal cases and not really under the jurisdiction of Kansas’ new bill.

        Even if, somehow, a Kansas judge in a Kansas case found some obscure foreign law to justify a court decision at the bench (already grounds for appeal), now such a court decision would be distinctly unenforcible IF AND ONLY IF the law cited contradicts the fundamental liberties set forth in either the US or Kansas constitutions.

        In short, this law is completely useless in court since such a decision would already be unenforcible because it’d supersede federal and state law with foreign law. The only “growth” is the requirement for arbitration and administrative agencies to follow local, not foreign law (a plus, even if very limited in scope).

        Finally, this bill has NOTHING WHATSOEVER to do with the enforcement of city, county, state, or federal laws either on the books already or passed in the future. It only curtails foreign law being used in court decisions in very limited settings.

        In conclusion, Kansas can go right on ahead banning gay marriage; this bill will not play ANY role in the subsequent outcome of such a ban.

        (This is a legalish argument and has nothing to do with my personal opinions. I am not a lawyer.)

  3. Only if it “would not grant the parties affected by the ruling or decision the same fundamental liberties, rights and privileges granted under the United States and Kansas constitutions,” so this might justify someone’s desire to amend the Kansas constitution.

    Added: Oh, and apparently they already did amend the constitution? Well, looks like they got all their ducks in a row. Unless we can argue it violates rights granted by the U.S. constitution.

  4. Sadly, no. The ban on same-sex marriage is in the Kansas constitution, thanks to the ignorance of my state’s voters back in 2005. The stupid “anti-Sharia” law is merely a statute, which doesn’t override the constitution. 

    1. Sad. Instead of bigotry outlawing itself it merely expands while due to one being constitutionalized both contradicts yet superceeds the other.


  5. My reading of that is it forbids such laws if they are based on any foreign law. An anti-gay-marriage law would pass that test easily, as they are all firmly-rooted in good old home-grown bigotry.

    1. It forbids court, tribunal, and arbitration decisions from using foreign laws that conflict with US and KS constitutions. It does not forbid laws from being passed by a legislature nor does it forbid regulations being passed by an executive agency.

  6. IANAL, but IMHO, this does nothing of the sort.
    A state legislature isn’t at all on the same level as an administrative/tribal, etc agency. A state legislature trumps them all — they sit at the same level as the governor and state supreme court justices.
    So no, they didn’t prohibit themselves from banning anything. Legislators are dumb, but they’re not stupid.

    1. Yup. You get it!

      This is a restriction on the judicial system, not the legislative or executive branches. Courts must always uphold any local, state, and federal laws in their jurisdiction, even if such a law required purple body paint for sex offenders or some other outlandish requirement that was somehow constitutionally sound.

      1.  That’s not exactly true – the courts can find the law to be invalid for a host of reasons.

        Court’s are the 3rd branch of government – if they don’t actually throw laws out when needed they aren’t really doing their jobs (or I suppose you could argue that’d be the sign of a *perfect* legislature.)

        The court system wasn’t setup to be a machine that runs based on the whims of the rest of the government – it’s supposed to make sure the laws don’t contradict (and they do … alot) or violate the rights of the citizens affected.

        1. I agree with you fully, but courts still are 100% supposed to uphold the law; it’s their job! That said, courts throw out lesser laws if they’re superseded by a higher one, like the constitution.

          They’re only supposed to throw out laws if they are “trumped” by higher law. For example, a county law that contradicts freedoms granted by state law. More generally, ANY law that contradicts with the state constitution gets thrown out at a state court, where laws that contradict with the US constitution get thrown out on federal appeal (or if they somehow entered the federal court system before the state courts).

  7. I’m just glad the Kansas gov has so little to do they can concern themselves with matters like anti-sharia laws.  Was there some pressing need for it?  I’m pretty sure the Moors weren’t on Topeka’s doorstep.  I don’t even understand the purpose of a law like this (beyond pure propaganda).  If the people of Kansas suddenly decide they want sharia-like laws isn’t that their prerogative in a democracy?

    This reminds me of how city counsels will sometimes make declarations on matters like foreign policy.

  8. Unfortunately, even if that were the case, bigots have a sixth sense that they use to spot loopholes.

  9. Since we observe Common Law with the UK, I’m curious about the application of the “foreign law” standard.

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