Ky. Voices: Rulings do not change Ky. law on gay marriage

July 29, 2013 

Tim Philpot is a Fayette County family court judge.

  • At issue: July 11 Herald-Leader article, "Issue of benefits not clear-cut after gay ruling; Kentucky wades through details"

On June 26, the U.S. Supreme Court issued its opinions in two highly anticipated cases involving same-sex marriage, one from California and the other from New York.

But what really happened? What did the Supreme Court actually say and what is the law? And what does it all mean for Kentucky?

As a family court judge for nearly 10 years, I pay more attention to the details of this marriage issue than most. Perhaps I can help.

All most people, even lawyers, seem to understand is that "they" won or "we" won, depending on which side you fall. On the day of the decision, television showed an avalanche of gay celebration. If it was a football game they would have been tearing down the goalposts.

Defenders of traditional marriage between a man and a woman were crestfallen. They went underground and silent in the wave of gay and lesbian celebrants.

So what happened? Hollingsworth vs. Perry was a California case. United States vs. Windsor was a New York case.

Advocates of same-sex marriage wanted the Supreme Court to strike down any and all laws that prohibit gay people to marry.

Traditional marriage advocates, on the other hand, wanted the court to rule that states may constitutionally continue to use the same definition of marriage (one man and one woman), and to permit the federal government to use the traditional definition of marriage.

Neither side won or lost entirely. Despite the celebrations, there was no clear-cut victory.

When Hollingsworth was originally tried in federal court, Judge Vaughn Walker, himself gay, made a finding that California's Proposition 8 was unconstitutional. One trial judge trumped every voter in California.

Then Gov. Arnold Schwarzenegger and Attorney General Jerry Brown decided not to appeal the judge's decision. So voters who had initiated the original Prop 8 under California law filed their own appeal to the trial court's order striking down Prop 8.

While many anticipated an exciting pronouncement on the future of marriage in America, what they got was a rather boring and technical decision. Instead of saying whether Judge Walker was right or wrong about the constitutionality of Prop 8, the Supreme Court simply held that the California voters who appealed did not have standing. Walker's ruling stands, because no one who appealed had standing to do so.

Same-sex marriage was legalized by a technicality in California.

In United States vs. Windsor, the Supreme Court considered an attack on the Defense of Marriage Act, commonly called DOMA, which mandated that for federal purposes — like taxation and thousands of other applications where marriage makes a legal difference — the federal government adopt the traditional definition of marriage, regardless of what an individual state's law may be.

Gay marriage proponents wanted the court to strike down DOMA entirely, on the grounds that it violates the Constitution's Equal Protection Clause. Traditional marriage proponents wanted the court to uphold DOMA. Or if the law was struck down, traditionalists at least hoped the court would support a state's right to define marriage.

The Supreme Court, in a 5-4 decision written by Justice Anthony Kennedy, handed both a qualified victory. The court ruled that the federal government must treat same-sex couples as married under federal law if they are legally married under state law. Thirteen states have legalized the new definition.

DOMA was partially struck down simply because it is the business of states, not the federal government, to define marriage. Windsor also made it clear that states like Kentucky still have the right to decide what marriage means.

As it stands now, states have the right to define marriage to include one man and one woman or to include homosexual couples or, for that matter, literally anything.

But nothing that happened June 26 changes anything in Kentucky. The federal government must recognize legal marriages in New York or California, but Kentucky does not have to do so.

Kentucky's constitution defines marriage as one man and one woman. Simple and traditional. Kentucky's definition of marriage stands — for now.


At issue: July 11 Herald-Leader article, "Issue of benefits not clear-cut after gay ruling; Kentucky wades through details"

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