Same-sex marriage in Kentucky

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Same-sex marriage has never been performed or recognized in Kentucky. However, recognition of out-of-state same-sex marriage was technically legal for a brief amount of time when a federal judge overturned part of the state's ban on same-sex marriage. This ruling was stayed the following day. Recognition of same-sex relationships (marriages under that name or any other) have been banned by the state constitution since 2004. The state's ban was struck down entirely on 1 July 2014 and is stayed pending appeal.[1]

Background[edit]

On November 9, 1973, the Kentucky Court of Appeals ruled in Jones v. Hallahan that two women were properly denied a marriage license based on dictionary definitions of marriage, despite the fact that state statutes did not restrict marriage to a female-male couple. Its decision said that "in substance, the relationship proposed ... is not a marriage."[2][3]

Since July 15, 1998, Kentucky's statutes have defined marriage as a relationship between a man and a woman, prohibited same-sex marriage and declared it contrary to public policy, and denied recognition to same-sex marriages from other jurisdictions.[4]

In November 2004, Kentucky voters gave Kentucky Constitutional Amendment 1 75 percent of their votes. It reads:[5]

Only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.

Kentucky only recognition of same-sex couples is its extension of hospital visitation rights to same-sex couples through a designated visitor statute.[6]

Bourke v. Beshear / Love v. Beshear[edit]

Bourke v. Beshear
US-CourtOfAppeals-6thCircuit-Seal.png
No. 14-5291
United States Court of Appeals for the Sixth Circuit
Date decided Appeal docketed March 19, 2014; submitted for oral arguments, to be held August 6, 2014.
Case history
Prior actions Stay granted (W.D. Ky., Mar. 19, 2014), final order entered (W.D. Ky. Feb. 27, 2014), preliminary injunction ordered, 2014 WL 556729 (W.D. Ky. Feb. 12, 2014)
Subsequent actions Consolidated with Love v. Beshear, No. 14-5818 on appeal (6th Cir. Jul. 16, 2014), ruling in favor of plaintiffs for in-state same-sex marriage below sub nom. Love v. Beshear (W.D. Ky. Jul. 1, 2014), case bifurcated as to in-state issue (W.D. Ky. Feb. 28, 2014).
Case holding
This case is an appeal from the U.S. W.D. of Kentucky, where Heyburn II, U.S.D.J. ruled in favor of plaintiff same-sex couples, enjoining the state from not recognizing their valid out-of-state marriages.
Love v. Beshear
Western District of Kentucky Seal.jpg
No. 3:13-CV-750-H
United States District Court for the Western District of Kentucky
Date decided July 1, 2014
Judge sitting John Heyburn II, U.S.D.J.
Case history
Subsequent actions Consolidated for appeal with Bourke v. Beshear, No. 14-5291, oral arguments scheduled for August 8, 2014, No. (6th Cir. Jul. 16, 2014)
Case holding
Kentucky's ban on same-sex marriage violates the Equal Protection clause under rational basis review. Due Process analysis is bypassed as "holding that the fundamental right to marry encompasses same-sex marriage would be a dramatic step that the Supreme Court has not yet indicated a willingness to take."

District court proceedings[edit]

On July 26, 2013, Gregory Bourke and Michael Deleon, who were legally married in Ontario, Canada, filed a lawsuit in U.S. District Court for the Western District of Kentucky challenging Kentucky's refusal to recognize their marriage on behalf of themselves and Deleon's two adopted children.[7] They later added as plaintiffs a couple married in Iowa and another in California, and the four children of one of them. On August 16, a fourth couple, married in Connecticut, filed a related suit in the same court but then joined the suit as plaintiffs. Named as defendants were Kentucky Governor Steve Beshear and Attorney General Jack Conway, as well as Sue Carole Perry, Shelby County Clerk.[8][9] Their suit, Bourke v. Beshear, argued that Kentucky should recognize same-sex marriages from other jurisdictions.[10] The case was assigned to Judge John G. Heyburn II.[8]

Bourke decision[edit]

In a decision issued February 12, 2014, Judge Heyburn found that Kentucky must recognize same-sex marriages from other jurisdictions because withholding recognition violates the U.S. Constitution's guarantee of equal protection.[11] He wrote:[12]

[T]he Court concludes that Kentucky’s denial of recognition for valid same-sex marriages violates the United States Constitution’s guarantee of equal protection under the law, even under the most deferential standard of review. Accordingly, Kentucky’s statutes and constitutional amendment that mandate this denial are unconstitutional.

He pointed out the evolution of judicial recognition of same-sex marriage: "In Romer, Lawrence, and finally, Windsor, the Supreme Court has moved interstitially ... establishing the framework of cases from which district judges now draw wisdom and inspiration. Each of these small steps has led to this place and this time, where the right of same-sex spouses to the state-conferred benefits of marriage is virtually compelled."[12] He told attorneys he would hold a hearing before issuing an order implementing his decision.[13]

Bifurcation of case[edit]

On February 14, two same-sex couples who were denied marriage licenses in Jefferson County, Timothy Love, Lawrence Ysunza, Maurice Blanchard, and Dominique James, asked to be allowed to intervene in the suit because their challenge to Kentucky's ban on same-sex marriage within the state raises substantially the same arguments as the original suit.[14] On February 27, 2014, before the final order was issued, the state attorney general asked Judge Heyburn to stay enforcement of his Bourke order for 90 days, noting that even if the state does not appeal the decision it needs time to implement it. Judge Heyburn issued a final order in Bourke on the same day ordering the state to recognize same-sex marriages from other jurisdictions at once, which created de jure legalization of recognition of out-of-state same-sex marriages; being a final order it was then immediately subject to appeal. He then bifurcated the case and allowed the new plaintiffs to intervene and argue against Kentucky's denial of marriage licenses to in-state same-sex couples. This portion of the case would remain in district court, retitled as Love v. Beshear. A briefing schedule on the in-state issue was completed by May 28.[15][16] On February 28, 2014, Judge Heyburn issued a shorter, 21-day stay in Bourke, instead.[17][18]

Bourke appeal[edit]

On March 4, 2014, the state attorney general announced that he would neither appeal the state's position nor request further stays. Kentucky's governor said he would employ outside counsel to appeal Heyburn's ruling in Bourke to the Sixth Circuit Court of Appeals and to request a stay pending appeal.[19][20] On March 19, Judge Heyburn extended his stay pending action by the Sixth Circuit, noting the stay granted by the U.S. Supreme Court in a similar Utah case.

An interlocutory appeal of Bourke was lodged in the U.S. Court of Appeals for the Sixth Circuit on March 19 under appellate case number 14-5291. Parties submitted briefing in the matter; this concluded on June 26. Oral arguments are to be held August 6, 2014. The names of the U.S. Circuit Judges on the judicial panel hearing the appeal will be made available two weeks before that date.[21]

Love decision[edit]

The addition of intervening plaintiffs the Bourke lawsuit (dealing with the recognition of out-of-state same-sex marriages, see above) on the related issue of denial of marriage licenses to in-state same-sex couples, required the court to bifurcate the case and restyle it. Love v. Beshear continued in district court as to the state marriage license issue, while the out-of-state recognition issue was appealed.[22]

On July 1, 2014, U.S. District Judge John G. Heyburn II found in favor of the intervening same-sex couple plaintiffs and ruled that Kentucky's ban on allowing same-sex marriage in-state violates the Equal Protection Clause.

In doing so, Judge Heyburn departs from the opinions issued by most of the other U.S. district courts that examined the issue; he "does not determine whether Kentucky’s laws interfere with a fundamental right." Looking at the trio of marriage cases of Loving v. Virginia, Zablocki v. Redhail, and Turner v. Safley; Judge Heyburn states that:

[T]he question before the Court can be distilled to: is same-sex marriage part of or included in the fundamental right to marry, or is it something else altogether?

He is hesitant to answer in the affirmative, reasoning that "holding that the fundamental right to marry encompasses same-sex marriage would be a dramatic step that the Supreme Court has not yet indicated a willingness to take" (emphasis added.) Judge Heyburn then notes that he can bypass answering this question.

Given the current posture of relevant constitutional jurisprudence, this Court finds caution here a more appropriate approach to avoid overreaching in its own constitutional analysis.

Instead, the judge finds that homosexual persons constitute a suspect class. Although Sixth Circuit precedent suggests that sexual orientation classifications do not receive heightened scrutiny, Heyburn prods the Sixth Circuit "to reconsider its view" as this precedent relied on Bowers v. Hardwick, a Supreme Court case subsequently overturned as "not correct when it was decided, and it is not correct today." (citing Lawrence v. Texas, 539 U.S. 558 at 575) He does the analysis required and finds the heightened scrutiny of a "quasi-suspect" class applies to the case; but even under the lower "rational basis" review, the state does not bear it's burden in justifying exclusion of same-sex couples from marriage. Heyburn concludes that the defendants' arguments for exclusion, i.e. encouraging relationships that procreate and stabilize the birthrate, "are not those of serious people," finding no relation between same-sex marriage and heterosexual procreation.[23]

Judge Heyburn stayed his ruling in Love pending the outcome of any appeal.

Consolidated appeal[edit]

Upon motion of appellee same-sex couples, the U.S. Sixth Circuit Court of Appeals consolidated Love v. Beshear, now docketed 14-5818 on appeal, and dealing with in-state licensing of same-sex marriage — with Bourke v. Beshear, already under appeal under docket 14-5291, and dealing with out-of-state same-sex marriage recognition. A July 16, 2014, order by the Sixth Circuit set an expedited briefing schedule: state appellants' opening brief due July 17, appellee same-sex couples' principal brief due July 24, and appellants' reply due July 31.[24]

Oral arguments for the consolidated Love appeal remain the same as in the previously-scheduled Bourke case, August 6, 2014; the Sixth Circuit will also hear same-sex marriage cases stemming from Michigan, Ohio, and Tennessee on that date as well.

Public opinion[edit]

The Bluegrass Poll in February 2014 found that 55% Kentucky voters were against same-sex marriage, 35% were for it, and 10% were unsure.[25]

See also[edit]

Notes[edit]

  1. ^ http://www.buzzfeed.com/chrisgeidner/federal-judge-strikes-down-kentucky-same-sex-marriage-ban
  2. ^ Cantor, et.al, Donald J. (2006). Same-Sex Marriage: The Legal and Psychological Evolution in America. Middletown, CT: Wesleyan University Press. pp. 117–8.  Kentucky Court of Appeals: Jones v. Callahan, November 9, 1973
  3. ^ Barbara J. Cox, "Same-Sex Marriage and Choice-of-Law: If We Marry in Hawaii, Are We Still Married When We Return Home?", in Wisconsin Law Review, 1994, 179ff., available online, accessed March 9, 2014
  4. ^ "Current Kentucky Laws". Marriage Equality Kentucky. Retrieved March 9, 2014. 
  5. ^ CNN: 2004 Ballot Measures, accessed April 13, 2011
  6. ^ "Hospital Visitation Laws". Hrc.org. Retrieved July 17, 2014. 
  7. ^ "First lawsuit filed against Ky. same-sex marriage ban". WLKY. July 26, 2013. Retrieved July 26, 2013. 
  8. ^ a b "Federal Judge Weighing Challenge to Kentucky Gay Marriage Ban". Edge on the Net. January 15, 2014. 
  9. ^ "Judge Weighing Challenge To Ky. Gay Marriage Ban". LEX18. January 15, 2014. Retrieved January 16, 2014. 
  10. ^ "Couple challenges Kentucky law against gay marriage". USA Today. July 26, 2013. Retrieved January 16, 2014. 
  11. ^ Wolfson, Andrew (February 12, 2014). "Kentucky ban on gay marriages from other states struck down by federal judge". Louisville Courier-Journal. Retrieved February 12, 2014. 
  12. ^ a b "Memorandum Opinion". Bouke v. Beshear, U.S. W.D. Ky., Docket 3:13-CV-750-H. February 12, 2014. 
  13. ^ "Federal Judge Orders Kentucky to Recognize Out-of-State Same-Sex Marriages". Afer.org. February 12, 2014. Retrieved February 13, 2014. 
  14. ^ Wolfson, Andrew (February 14, 2014). "Couples ask judge to allow gay marriage in Kentucky". Louisville Courier-Journal. Retrieved February 18, 2014. 
  15. ^ Cheves, John (February 26, 2014). "Judge: Final order requiring Ky. to recognize same-sex marriages expected Thursday". Lexington Herald Leader. Retrieved February 27, 2014. 
  16. ^ Thomaston, Scottie (February 28, 2014). "Kentucky marriage equality case re-named Love v. Beshear". Equality on Trial. Retrieved February 28, 2014. 
  17. ^ Blake, Aaron (February 27, 2014). "Kentucky attorney general seeks delay in recognizing gay marriage". Washington Post. Retrieved February 27, 2014. 
  18. ^ Wolfson, Andrew (February 28, 2014). "Kentucky gay marriage ruling on hold until March 20". Louisville Courier-Journal. Retrieved February 28, 2014. 
  19. ^ Cheves, John (March 4, 2014). "Beshear: Ky. will appeal federal judge's ruling in same-sex marriage case without Conway". Lexington Herald-Leader. Retrieved March 4, 2014. 
  20. ^ Geidner, Chris (March 4, 2014). "Kentucky Governor To Appeal Marriage Recognition Ruling After State’s Attorney General Decides Not To Appeal". Buzz Feed. Retrieved March 4, 2014. 
  21. ^ Johnson, Chris (March 19, 2014). "Judge stays order requiring Ky. to recognize same-sex marriages". Washington Blade. Retrieved March 20, 2014. 
  22. ^ Thomaston, Scottie (February 28, 2014). "Kentucky marriage equality case re-named Love v. Beshear". Equality on Trial. Retrieved February 28, 2014. 
  23. ^ John E. Heyburn II, U.S. District Judge (July 1, 2014). "Memorandum Opinion and Order, Love v. Beshear, No. 3:13-CV-750-H". U.S. District Court for the Western District of Kentucky (LBGTQ Nation.com). 
  24. ^ Borkowski, Cheryl (Case Manager) (16 July 2014). "Briefing Schedule Letter, Love v. Beshear, No. 14-5818". U.S. Court of Appeals for the Sixth Circuit (Scribd.com). PACER Document 12. 
  25. ^ "Bluegrass Poll" of 1200 adults in Kentucky, sponsored by the Lexington Herald-Leader, The Courier-Journal, WKYT-TV and WHAS-TV, accessed February 28, 2014.

External links[edit]