A federal judge ruled Wednesday that Kentucky must recognize out-of-state same-sex marriages—and the ruling may prelude further strikes against the state’s 2004 same-sex marriage ban.
District Judge John G. Heyburn wrote that refusing to recognize same-sex marriages from outside the state violates the U.S. constitution’s equal protection clause.
He also writes: “In a democracy, the majority routinely enacts its own moral judgments as laws. Kentucky’s citizens have done so here. Whether enacted by a legislature or by public referendum, those laws are subject to the guarantees of individual liberties contained within the United States Constitution.”
Heyburn was appointed to the federal judgeship by President George H.W. Bush on the recommendation of U.S. Sen. Mitch McConnell.
The ruling becomes official at a hearing to be held later, plaintiffs’ attorneys said.
In the meantime, those attorneys argue that Heyburn’s ruling strikes at the framework of the state’s same-sex marriage ban—that, depending on how the ruling plays out, same-sex couples may eventually be allowed to be married in Kentucky, as well.
“We think it gives them more than just the ability, but a very strong indication that the continued refusal to grant same sex marriage licenses, if it’s not already declared unconstitutional, it will be,” said Laura Landenwich, a plaintiff’s attorney.
“It is inevitable.”
The lawsuit was initially filed in July on behalf of Greg Bourke and Michael De Leon, a Louisville couple who married in Canada in 2004—the same year Kentucky voters overwhelmingly approved constitutional amendment banning such marriages.
Three other couples were plaintiffs in the lawsuit, too.
The state’s refusal to accept Bourke and De Leon’s marriage has caused them financial and personal struggles through their marriage. “It’s required a lot of extra effort on our part,” Bourke said.
For example, their adoption of two children was complicated—only one could adopt, the other had to take an extra step of becoming a legal guardian.
Bourke and De Leon jointly filed their federal taxes for the first time, Bourke said.
By doing so, Bourke said, they were told they saved $3,000.
Bourke said he thought of all the years they could have saved money on taxes but were stopped by laws that didn’t recognized their marriage.
“And I hadn’t done that for Kentucky because Kentucky it doesn’t apply yet—we’re still being taxed separately,” Bourke said. “So, there are I think many, many things like that that pop up and will continue to pop up as things that—we just carry that burden, because we didn’t have a choice.”
(The opinion is posted below.)
The lawsuit was filed against Gov. Steve Beshear, Attorney General Jack Conway and other officials—and it’ll be up to Conway to decide whether he wants to appeal. If Conway does, it’ll go to the federal Sixth Circuit Appeals Court and the final result will wait.
Bourke noted that they’ll keep pressing the matter at each potential step.
If the lawsuit isn’t appealed, the judge would hold a hearing and, at some point, same-sex couples married outside of Kentucky would get legal recognition.
A recent Bluegrass Poll said 55 percent of Kentucky voters opposed same-sex marriage, and 35 percent supported it.
As noted above, the attorneys who filed this suit see Heyburn’s ruling as a strike against all forms of same-sex marriage bans in Kentucky.
Bourke said he hopes he’ll see same-sex couples applying for marriage licenses in Kentucky.
“What Kentucky needs to do is just get used to what diversity looks like and what different types of families look like,” Bourke said.
In a statement, Human Rights Campaign President Chad Griffin said: “This amendment is unconstitutional, and we believe the only true solution to the injustice faced by these plaintiffs is full marriage equality. We hope all parties act swiftly and fairly to allow all loving and committed Kentucky couples the opportunity to marry in the state they call home.”
The Human Rights Campaign notes that the lawsuit may end up in appeals along with several other states—Ohio, Utah, Nevada and Oklahoma.
We’ll update this story and on 89.3 once we hear from Conway and Beshear, and we’ll have reaction from other leaders in the state and on this issue. Stay tuned.
Update 6:28 p.m.: Conway’s Statement
Here’s what Kentucky’s attorney general has to say:
“I took an oath when I was sworn in as Attorney General to uphold Kentucky’s constitution. I did my duty and defended Kentucky’s constitutional amendment in federal court. Today, Judge Heyburn issued a decision holding that Kentucky’s constitutional amendment conflicts with the United States Constitution. The order is not final and states that there will be an additional hearing set in the near future. It would be inappropriate to comment further about the future of this case until that hearing is held and a final order is entered.”
Earlier: A federal judge has ruled against Kentucky’s ban on recognizing out-of-state same-sex marriages.
Citing the equal protection clause of the Fourteenth Amendment to the U.S. Constitution, U.S. District Judge John G. Heyburn II notes that gay couples are treated differently by the state than straight couples. He then goes on to rule that the state must recognize plaintiff’s Greg Bourke and Michael De Leon’s Canadian marriage, and, by extension, any other same-sex marriages performed outside of Kentucky, where same-sex marriage is banned by the state constitution.
The ruling does not completely strike down the state’s ban on performing same-sex marriages, though supporters of marriage equality note Heyburn’s writing in his opinion as hope that a future challenge could lift the ban.
In the end, the 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.
This story will be updated.
Here is the opinion: