So the lawsuit that sought to force Kentucky to recognize out-of-state same-sex marriage has been appealed and U.S. District Judge John Heyburn has extended a stay in the case.
What happens next?
Backing up a bit, Louisville residents Greg Bourke and Michael De Leon sued the state last year. They were married in Canada in 2004, the same year Kentucky enacted a ban on same-sex marriages. Other couples were added to the suit, Bourke v. Beshear, and Heyburn wrote last month that the state’s same-sex marriage ban violated the equal protection clause of the U.S. Constitution’s Fourteenth Amendment. Very briefly, same-sex marriages were effectively recognized in Kentucky, but Heyburn issued a stay that expired Thursday. This week, Heyburn extended that stay.
When Heyburn first issued the stay, it was unclear whether the state—the plaintiffs, then specifically meaning Attorney General Jack Conway—would file an appeal. Conway decided not to, but Gov. Steve Beshear decided to hire outside counsel to do the appealing.
The case takes a few twists and turns from here and may very likely end up with the U.S. Supreme Court, among other cases on the same-sex marriage question.
- The stay stays for now. The stay puts a halt on Kentucky having to recognize out-of-state same-sex marriage. Heyburn extended the stay this week until further notice from the Sixth Circuit Court of Appeals. The appeals court now makes the call whether the stay remains through the appeals process, ends immediately or somewhere in between. Plaintiffs’ attorneys said they’ll ask the appeals court to lift the stay.
- This could take a while. The appeals court process is “typically very slow,” said Laura Landenwich, a plaintiff’s attorney. Her side will ask for an expedited briefing schedule with the aim to make the process go faster, but either way the process may a while. There’s also a question of other states—Tennessee is in a similar situation as Kentucky, and there’s a chance the appeals court will consider them together, plaintiffs’ attorneys said. And even then, the case (along with others) could make it’s way up to the Supreme Court.
- What about marriage licenses? Last month, same-sex couples denied marriage licenses in Louisville asked to be added, and were, to Bourke v. Beshear. They want the state to start issuing marriage licenses to same-sex couples, a question not raised in the initial lawsuit or Heyburn’s order. That case—now called Love v. Beshear, to reflect the current set of plaintiffs—stays with Heyburn, and plaintiff’s attorney expected a decision by this summer. The judge’s order in Bourke v. Beshear struck at the framework of Kentucky’s 2004 same-sex marriage ban, and plaintiffs’ attorneys said they expect the case to their way.
- Judge Heyburn’s situation. By the way, the judge is taking senior status—which the federal court system said typically means volunteer work for the court, instead of his current full-time role on the U.S. District Court. Plaintiffs attorney expect it to have no impact on the case.
- And Indiana’s same-sex marriage suit. Meanwhile, the same attorneys in Kentucky’s same-sex marriage case have filed a similar suit in Indiana. However, four other lawsuits have been filed. Landenwich said they’ve all been assigned to U.S. District Judge Richard Young, who is based in New Albany.