After a federal court hearing Friday and an upcoming state Supreme Court hearing this next week, Kansas stands on the edge of legalized same-sex marriage. The moment has been more than a decade in the making and comes after a bitter battle 10 years ago over the state’s gay marriage ban, shifting public attitudes, and judicial action across the country.

Now, with gays and lesbians likely to gain the ability to marry in Kansas sooner rather than later, activists on both sides in the state are looking toward the future as new battle lines are drawn.

The ban

The current rapid advance of same-sex marriage throughout the United States hasn’t always been so rapid. In 1993, the Hawaii Supreme Court ruled that the equal protection clause of the U.S. Constitution didn’t allow for gay couples to be denied the right to marry. Despite that early legal victory for same-sex marriage proponents, Hawaii would later amend its state constitution to keep its prohibition on same-sex marriage in place.

Marriage between one man and one woman was codified in federal law in the 1996 Defense of Marriage Act. A 2013 U.S. Supreme Court decision striking down part of the law would pave the way for a wave of challenges to state bans on same-sex marriage.

Massachusetts became the first state to allow same-sex marriage in 2004. That same year several states also moved in the opposite direction, passing bans on same-sex marriages.

Enter Kansas. Kansas lawmakers debated a constitutional ban during the 2004 legislative session. That measure failed, according to Topeka Capital-Journal archives, after 10 House members switched their votes and defeated it.

In the wake of the failed effort, Terry Fox, a conservative Wichita pastor, led an effort to put the ban before voters.

"It required us getting involved in making sure that many legislators would be replaced so that the people in Kansas could have the right to define marriage," Fox said in an interview this past week. "And what was astonishing to me was the Legislature themselves would not allow the people themselves to speak."

Fox and other pastors marshaled a coalition in support of the ban. When the Legislature came back in 2005, the result was much different. Lawmakers approved a constitutional amendment early in the session, with the House voting 86-37 and the Senate voting 28-11.

The original 2004 debate grabbed the attention of Thomas Witt, who is gay and at the time worked in information technology.

"Their rhetoric was incredibly discriminatory and hateful. These were people who were making it clear that they believed gay and lesbian relationships weren’t real, that we didn’t deserve to have equal rights in marriage or in things like employment," Witt said.

By 2005, Witt — who currently leads the Kansas Equality Coalition — had become an activist working against the reinvigorated effort to pass a constitutional ban. But opponents were ultimately outmatched by a large margin at the polls. Voters approved the constitutional amendment 70 percent to 30 percent in the April 2005 vote.

Nationwide battle

For the next few years, the outlook for same-sex marriage opponents appeared somewhat grim. While a few states created domestic partnership registries and allowed civil unions, more states continued to pass bans prohibiting same-sex marriage.

But as the decade came to an end, momentum began to shift in the proponents’ direction. The Obama administration decided in 2010 that it would no longer defend the Defense of Marriage Act in court. In 2011, New York began allowing same-sex marriage. And in 2012 several other states also began allowing same-sex marriage.

In June 2013 the U.S. Supreme Court struck down part of DOMA. In the months that followed, judges began to rule more consistently against same-sex marriage bans.

Then, in early October, the U.S. Supreme Court declined to hear several cases challenging state bans, essentially allowing lower court rulings tossing out the bans to stand. Although Kansas’ ban wasn’t challenged, on Oct. 10, Johnson County District Judge Kevin Moriarty issued an administrative order instructing the district clerk to issue a same-sex marriage license.

A same-sex couple married on the morning of Oct. 10, but later that same day Kansas Attorney General Derek Schmidt sought to stop further marriages and the Kansas Supreme Court ordered a halt to them, setting a Nov. 6 hearing. In the meantime, the ACLU of Kansas filed a federal lawsuit seeking to allow marriages to continue while the state Supreme Court considered Schmidt’s request. That lawsuit is ongoing.

Regardless of the current legal battles, Fox acknowledged that same-sex marriage will soon come to Kansas, though he promised to keep fighting and said the U.S. Supreme Court should take up a same-sex marriage case to clarify its position. But, he said people should remember Kansans didn’t change the definition of marriage but that it had been forced on the state by the judiciary.

"I personally feel that this is not only a moral issue, but that an even a bigger issue at hand is the fact that state’s rights are being overridden by a handful of judges rather than letting the people of Kansas speak," Fox said.

Fewer and fewer people hold anti-gay views, Witt said. He added people have seen how the world hasn’t come to an end as the result of same-sex marriage. Yet some individuals still hold virulently anti-gay views, and he pointed to court filings in the federal case as proof.

In one filing, Phillip and Sandra Unruh, of Harper, asked to defend the state’s ban in court, arguing same-sex marriage would take away their property rights by devaluing their marriage, which they said was a kind of property.

"The rhetoric in there basically relegates LGBT couples to second-class citizens," Witt said.

While polling has shown a plurality of Kansans don’t support same-sex marriage, a majority does support some sort of legal recognition of gay relationships. Public Policy Polling found in a poll released earlier in October that a plurality of Kansans still oppose same-sex marriage: 49 percent said it shouldn’t be allowed while 44 percent said it should be. But support for either civil unions or marriage for same-sex couples stood at 71 percent.

Moving forward

With same-sex marriage likely to come to Kansas at some point, both sides are now looking at the next battle. Kansans got a taste of what those battles might look like earlier this year when lawmakers unsuccessfully tried to pass so-called "religious freedom" legislation. The bill, which drew national attention, would have created protections for those with sincerely-held religious beliefs against same-sex marriage, supporters argued. Opponents said the legislation would have allowed discrimination against gays and lesbians in a number of areas.

"I’m expecting to see more bills next year that try to permanently and overtly legalize discrimination," Witt said.

Fox, however, fears consequences for churches that stand by their beliefs going forward.

"I predict in the near future churches will probably lose that tax exemptions status," Fox said.

For supporters of gay rights, Kansas still has a lot of work to do, despite the prospect of legal marriage in the near future. Discriminating on the basis of sexual orientation remains legal in the state. Bills to bar such discrimination haven’t been successful in the Legislature, but activists have found some success at the municipal level — with ordinances in Lawrence and Roeland Park for example, in addition to domestic partnership registries in both Lawrence and Topeka.

For Witt, increasing those protections, along with other priorities such as curtailing youth bullying, are drawing his attention now.

"Quite frankly, here in Kansas as an organization, our focus has been on pretty much everything except marriage," Witt said.