Same-sex marriage in Kentucky

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Legal status of
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The U.S. state of Kentucky does not recognize same-sex marriages. Marriage has been defined by statute to exclude same-sex couples since 1998. Recognition of same-sex relationships under the name marriage or any other designation has been prohibited by the state constitution since 2004.

On February 12, 2014, a U.S. district court ruled that Kentucky must recognize same-sex marriages established in other jurisdictions. On July 1, the same judge ruled that Kentucky's denial of marriage licenses to same-sex couples violates the U.S. Constitution, but stayed the implementation his decision pending appeal. The Sixth Circuit reversed both those decisions on November 6. The same-sex couples have asked the U.S. Supreme Court to review that decision.

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."[1][2]

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.[3]

In November 2004, Kentucky voters gave Kentucky Constitutional Amendment 1 75 percent of their votes. It reads:[4]

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's only recognition of same-sex relationships is its extension of hospital visitation rights to same-sex couples through a designated visitor statute.[5]

Federal lawsuits[edit]

Bourke v. Beshear[edit]

Main article: Bourke v. Beshear

On July 26, 2013, a same-sex couple legally married in Canada filed a lawsuit in U.S. District Court for the Western District of Kentucky challenging Kentucky's refusal to recognize their marriage.[6] Other plaintiffs were later added; the state governor and attorney general were the named defendants.[7][8] The plaintiffs in Bourke argued that Kentucky should recognize same-sex marriages from other jurisdictions.[9] The case was assigned to Judge John G. Heyburn II.[7]

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.[10] His final order, issued on February 27, 2014, created de jure legalization of recognition of out-of-state same-sex marriages; being a final order it was then immediately subject to appeal. Heyburn stayed his decision for 21 days.

On March 4, Kentucky Attorney General Jack Conway announced that he would neither appeal the state's position nor request further stays. Kentucky Governor Steve Beshear said he would employ outside counsel to appeal Heyburn's ruling in Bourke to the U.S. Sixth Circuit Court of Appeals and to request a stay pending appeal.[11][12] On March 19, Judge Heyburn extended his stay pending appeal, noting the stay granted by the U.S. Supreme Court in a similar Utah case. On the same date, defendants lodged an interlocutory appeal of Bourke in the Sixth Circuit. Oral arguments in the case were held on August 6, 2014.

Love v. Beshear[edit]

Main article: Love v. Beshear

On February 14, 2014, two same-sex couples who were denied marriage licenses in Kentucky asked to be allowed to intervene in Bourke.[13] As Judge Heyburn issued a final order in Bourke, he bifurcated the case and allowed the new plaintiffs to intervene and argue against Kentucky's denial of marriage licenses to same-sex couples. This portion of the case remained in district court, retitled as Love v. Beshear. A briefing schedule on this issue was completed by May 28.[14][15]

On July 1, Judge Heyburn found in favor of the intervening same-sex couple plaintiffs in Love and ruled that Kentucky's ban on allowing same-sex couples to marry violates the Equal Protection Clause.[16]

The Sixth Circuit Court of Appeals consolidated Love with Bourke v. Beshear. It heard oral arguments on August 6, the same day it heard same-sex marriage cases originating in Michigan, Ohio, and Tennessee.

Appellate decision[edit]

On November 6, the Sixth Circuit ruled 2–1 in both cases that Kentucky's ban on same-sex marriage does not violate the constitution. It said it was bound by the U.S. Supreme Court's 1972 action a similar case, Baker v. Nelson, which dismissed a same-sex couple's marriage claim "for want of a substantial federal question." Writing for the majority, Judge Jeffrey Sutton also dismissed the arguments made on behalf of same-sex couples in this case: "Not one of the plaintiffs' theories, however, makes the case for constitutionalizing the definition of marriage and for removing the issue from the place it has been since the founding: in the hands of state voters." Dissenting, Judge Martha Craig Daughtrey wrote: "Because the correct result is so obvious, one is tempted to speculate that the majority has purposefully taken the contrary position to create the circuit split regarding the legality of same-sex marriage that could prompt a grant of certiorari by the Supreme Court and an end to the uncertainty of status and the interstate chaos that the current discrepancy in state laws threatens."[17]

The same-sex couples filed an application for certiorari with the U.S. Supreme Court on November 17.[18]

Public opinion[edit]

Public opinion for same-sex marriage in Kentucky
Poll source Date(s)
administered
Sample
size
Margin of
error
 % support  % opposition  % no opinion
New York Times/CBS News/YouGov September 20-October 1, 2014 1,689 likely voters ± 2.8% 38% 50% 13%
Public Policy Polling August 7–10, 2014 991 voters ± 3.1% 30% 61% 9%
Bluegrass Poll July 18–23, 2014 714 registered voters ± 3.7% 37% 50% 12%
New York Times/Kaiser Family Foundation April 8–15, 2014 891 registered voters ± ?% 38% 54% 8%
Bluegrass Poll January 30-February 4, 2014 1,082 registered voters ± 3% 35% 55% 10%

See also[edit]

Notes[edit]

  1. ^ 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
  2. ^ 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
  3. ^ "Current Kentucky Laws". Marriage Equality Kentucky. Retrieved March 9, 2014. 
  4. ^ CNN: 2004 Ballot Measures, accessed April 13, 2011
  5. ^ "Hospital Visitation Laws". Hrc.org. Retrieved July 17, 2014. 
  6. ^ "First lawsuit filed against Ky. same-sex marriage ban". WLKY. July 26, 2013. Retrieved July 26, 2013. 
  7. ^ a b "Federal Judge Weighing Challenge to Kentucky Gay Marriage Ban". Edge on the Net. January 15, 2014. 
  8. ^ "Judge Weighing Challenge To Ky. Gay Marriage Ban". LEX18. January 15, 2014. Retrieved January 16, 2014. 
  9. ^ "Couple challenges Kentucky law against gay marriage". USA Today. July 26, 2013. Retrieved January 16, 2014. 
  10. ^ 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. 
  11. ^ 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. 
  12. ^ 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. 
  13. ^ Wolfson, Andrew (February 14, 2014). "Couples ask judge to allow gay marriage in Kentucky". Louisville Courier-Journal. Retrieved February 18, 2014. 
  14. ^ Cheves, John (February 26, 2014). "Judge: Final order requiring Ky. to recognize same-sex marriages expected Thursday". Lexington Herald Leader. Retrieved February 27, 2014. 
  15. ^ Thomaston, Scottie (February 28, 2014). "Kentucky marriage equality case re-named Love v. Beshear". Equality on Trial. Retrieved February 28, 2014. 
  16. ^ Geidner, Chris (July 1, 2014). "Federal Judge Strikes Down Kentucky Same-Sex Marriage Ban". BuzzFeed. Retrieved August 23, 2014. 
  17. ^ Geidner, Chris (November 6, 2014). "Federal Appeals Court Upholds Four States' Same-Sex Marriage Bans". BuzzFeed News. Retrieved November 6, 2014. 
  18. ^ "Kentucky Plaintiffs' Cert Petition". Scribd.com. Retrieved November 17, 2014. 

External links[edit]