How Kentucky’s Same-Sex Marriage Ban Began and Where It’s Going

It was a very different time in 2004, politically and socially. George W. Bush was poised to sail into a second term in the White House. Hearings in Saddam Hussein’s war crimes trial began in earnest. And “Shrek 2” was making millions at the box office.

And Kentucky, along with 10 other states, voted to ban same-sex marriages.

Ten years ago, Kentucky’s lawmakers and residents approved an amendment to the state constitution banning same-sex marriage. On Wednesday, U.S. District Judge John Heyburn knocked the legal footing out from under the measure, saying it violates the U.S. Constitution’s equal protection clause.

Heyburn’s ruling only means the state must recognize same-sex marriages performed outside of Kentucky. But it looks to be a matter of time before another case comes along seeking to throw the entire amendment out.

This is how the ban went from overwhelmingly popular to a political land mine in one decade.

The amendment began as a Senate bill introduced by former Russell Springs Republican Sen. Vernie McGaha. It passed in the Republican-controlled chamber by a wide margin. Only five senators—all Democrats—cast dissenting votes. It then passed the House and was signed into law by former Republican Gov. Ernie Fletcher.

It went on the November ballot and voters were overwhelmingly in support of it.

Related: Kentucky Gay Marriage Ban ‘Practically’ Over, Says Congressman John Yarmuth

Sen. Dan Seum, a Louisville Republican, was a cosponsor of that original bill. He finds Heyburn’s ruling disappointing.

“I believe that marriage is between one man and one woman, and we’ve went a long way in this country, and in my opinion, it’s destroying the traditional marriage, and we’re seeing that in our youth who are just floundering out there with the lack of a father in the home,” Seum says.

“It’s just about destroyed the family this country has, and I’ll stick by my guns and I believe that marriage is one man and one woman.”

Seum says he would support a legislative effort to pass a new constitutional amendment in the Senate in response to the ruling. And he may have bipartisan support.

Sen. Ray Jones Jr., a Democrat from Pikeville, voted for the ban on the basis of his religious beliefs, which he says haven’t changed over the last decade. He doesn’t think the legal battle is going to be over anytime soon—he expects a federal appeals court and also the U.S. Supreme Court to address it.

A recent poll showed the continued unpopularity of same-sex marriage across the state. But there are pockets where attitudes have changed significantly. Six Kentucky cities have adopted local fairness ordinances—half of them in the last year alone.

Sen. Gerald Neal was one of five Democrats to vote against the marriage ban, and he’s surprised at the progress LGBT rights have made.

“It’s interesting what’s happening, because, if you go back five or six years, it looked like there was a totally different ballgame unfolding here,” Neal says.

The difference is stark enough that Sen. Morgan McGarvey, who has filed a statewide fairness bill in his chamber, says that even if Seum and other GOP members were to mount a renewed effort to pass a second constitutional amendment, the support wouldn’t be as strong.

“Right now this is playing out in the proper channel, and that’s the courts,” say McGarvey, whose district is in Louisville. “I’m not going to support any law in the State senate that fails to treat people equally.”

But efforts to pass a new ban may be for naught. It’s unclear how Gov. Steve Beshear and Attorney General Jack Conway, both Democrats, will react to the ban.

They defended it in court, but haven’t yet said whether they will appeal.

And while Heyburn’s ruling was in reference to out-of-state marriages, it says the entire ban is unconstitutional, and proponents of marriage equality hope it’s interpreted that way.

“It’s my understanding that it strikes down the whole amendment to the state constitution, as completely unconstitutional, not just a portion,” Michael Aldridge, executive director of the ACLU of Kentucky. “What we saw this summer at the U.S. Supreme Court with the DOMA decision was a section of DOMA that was ruled unconstitutional, but I believe that this decision today speaks to the entire amendment to the Kentucky constitution.”

Aldridge hopes the state won’t appeal, and he cites states like Virginia and Illinois that have let similar decisions stand. But if there is an appeal, Aldridge says the ACLU will throw all of its resources into the case in support of Heyburn’s decision.

No matter what happens next, it’s clear this decision has energized both sides of the debate. But Fairness Campaign Director Chris Hartman says momentum is on his side. He says marriage equality is inevitable, and nondiscrimination laws are, too.

“LGBT rights and fairness rights will continue to move forward in the commonwealth as they have been,” Hartman says.

“We’ll see more cities pass more anti-discrimination fairness laws. We’ll ultimately see the state of Kentucky pass the anti-discrimination fairness ordinance, which will give everyone a fair shake at earning a living, putting a roof over their heads and eating at their favorite restaurant without fear of being turned away just because of who they are.”

Although a finalized order is expected to come through the courts in the coming week, the outcome may not be realized in Kentucky for several more years.

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