Federal judge: Kentucky must recognize same-sex marriages from other states

jcheves@herald-leader.comFebruary 12, 2014 

Same-Sex Marriage Kentucky

Michael De Leon, left, and Gregory Bourke filed suit last July challenging Kentucky's ban on same-sex marriage. Bourke and De Leon, both of Louisville, were married in Canada in 2004.

BRETT BARROUQUERE — AP

  • The plaintiffs

    U.S. District Judge John G. Heyburn II wrote Wednesday that the plaintiffs in a lawsuit challenging Kentucky's marriage laws were, in many respects, "average, stable American families." These are the plaintiffs:

    ■ Gregory Bourke and Michael De Leon of Louisville, who have been together for 31 years. They were married in Ontario, Canada, in 2004 and have a 14-year-old daughter and a 15-year-old son.

    ■ Jimmy Meade and Luther Barlowe of Bardstown, who have been together 44 years. They were married in Davenport, Iowa, in 2009.

    ■ Randell Johnson and Paul Campion of Louisville, who have been together for 22 years. They were married in Riverside, Calif., in 2008 and have four children: twin 18-year-old sons; a 14-year-old son; and a 10-year-old daughter.

    ■ Kimberly Franklin and Tamera Boyd of Shelby County, who were married in Stratford, Conn., in 2010.

    "They were indescribably happy today," said the plaintiffs' attorney, Laura Landenwich of Louisville. "Our clients, most of them have been together for decades and this was a long, long struggle for them."

FRANKFORT — A federal judge said Wednesday that Kentucky must recognize same-sex marriages from other states, opening the door for gay and lesbian couples to gain full legal protection as families.

Ruling in favor of four Kentucky same-sex couples who sued the state last year, U.S. District Judge John G. Heyburn II in Louisville struck down portions of a 1998 state law and a 2004 state constitutional amendment, both of which limited marriage in Kentucky to "one man and one woman."

The Fourteenth Amendment to the U.S. Constitution guarantees equal protection of the law from state to state, so Kentucky cannot deny people their fundamental rights, such as the right to marriage, Heyburn wrote.

"No one has offered any evidence that recognizing same-sex marriages will harm opposite-sex marriages, individually or collectively. One's belief to the contrary, however sincerely held, cannot alone justify denying a selected group their constitutional rights," Heyburn wrote.

Although Kentuckians are entitled to enact laws based on their "moral judgments ... those laws are subject to the guarantees of individual liberties contained within the United States Constitution," he wrote.

"For years, many states had a tradition of segregation and even articulated reasons why it created a better, more stable society. Similarly, many states deprived women of their equal rights under the law, believing this to properly preserve our traditions. In time, even the most strident supporters of these views understood that they could not enforce their particular moral views to the detriment of another's constitutional rights," Heyburn wrote. "Here as well, sometime in the not too distant future, the same understanding will come to pass."

Religious conservatives argued in the case that same-sex marriage is not legitimate because it does not produce children, Heyburn wrote. But some heterosexual marriages do not produce children, he said, and some same-sex couples adopt children who would benefit from legal recognition as families. Apart from the emotional importance of marriage, he said, spouses enjoy many legal protections, including tax, estate and health care benefits; legal standing in litigation; and access to Social Security payments.

Heyburn, appointed to the bench in 1992 by Republican President George H.W. Bush, said he will schedule a hearing in the near future to explain how his decision should be implemented. He said the plaintiffs in this lawsuit did not seek the right to marry in Kentucky because they married elsewhere, although he suggested that Kentucky's ban on same-sex weddings within its borders would not survive a constitutional challenge, as similar bans in other states have been falling.

Seventeen states and Washington, D.C., permit same-sex couples to marry, including Illinois, just across the Ohio River from Western Kentucky.

Gov. Steve Beshear, named in the suit as lead plaintiff, declined to comment Wednesday on whether the state would appeal, saying the judge's decision was not yet final. Attorney General Jack Conway, also named in the suit, did not immediately respond to a call seeking comment.

Reaction was passionate and split along ideological lines. Joan Callahan of Anderson County, who married her partner of 25 years, Jennifer Leigh Crossen, in Massachusetts in October, said she was "absolutely delighted."

"I think it's a great step forward for the state," said Lexington florist Doug Smith, who married his partner, Glenn Blind, in New York City on Dec. 28. "I feel within the next five to 10 years, it will be legal in every state."

However, The Family Foundation blamed "liberal judges" for nullifying Kentuckians' democratic right to define marriage for themselves.

"If a state like Utah were ever to legalize polygamy, Kentucky would be forced to recognize it under this decision," said Martin Cothran, spokesman for The Family Foundation. "Kentucky marriage policy will now be dictated from places like Boston and San Francisco."

Kentucky Senate President Robert Stivers, R-Manchester, said that despite Heyburn's defense of same-sex marriage, "I think it's appropriate that we not recognize it."

In 1998, the Kentucky General Assembly changed state law to clarify that only marriages between "one man and one woman" are valid. Any other marriage, even if it's legal in another state, would be void in Kentucky. Lawmakers returned to the subject in 2004 by putting on the ballot a proposed constitutional amendment banning same-sex marriage, which voters approved overwhelmingly.

"Marriage is a divine institution designed to form a permanent union between man and woman," the amendment's sponsor, Sen. Vernie McGaha, R-Russell Springs, said in 2004. "Once this amendment passes, no activist judge, no legislature or county clerk whether in the commonwealth or outside of it will be able to change this fundamental fact: The sacred institution of marriage joins together a man and a woman for the stability of society and for the greater glory of God."

But as Heyburn wrote in his ruling, recent court decisions have reshaped the landscape. Most notably, the U.S. Supreme Court last year struck down a 1996 federal law blocking federal recognition of gay marriage, which was called the Defense of Marriage Act, and it allowed same-sex marriages to resume in California by declining to hear an appeal from that state.

Since then, several federal district judges have taken a skeptical view of same-sex marriage bans passed by states.

"Each of these small steps has led to this place and this time, where the right of same-sex spouses to the state-conferred benefits of marriage is virtually compelled," Heyburn wrote.

There's also evidence of a shift in public sentiment, even in conservative Kentucky. In 2004, 75 percent of voters approved the same-sex marriage ban on the statewide ballot. But last week, 55 percent of registered Kentucky voters said they opposed same-sex marriage in a Bluegrass Poll, compared with 35 percent who said they supported it and 10 percent who said they weren't sure. Generally, the younger the voters, the more likely they were to express support for same-sex marriage.

The American Civil Liberties Union said it will file a friend-of-the-court brief on behalf of the four same-sex couples if state officials appeal Heyburn's ruling, but it hopes that won't be necessary.

"The simplest thing would be for the state to save taxpayer money and let the decision stand as is," said Michael Aldridge, executive director of the ACLU of Kentucky.

In civil rights matters, from racial integration in the 1950s to same-sex marriage today, federal judges typically lead where elected politicians fear to go, Aldridge added.

"Often times, the courts have to be in front of an issue," Aldridge said. "They're less inclined to base their decisions on polling data and popular opinion. They rule based on the law, and in this instance, the Fourteenth Amendment is very clear in that all Americans are entitled to equal protection."

Reporter Linda B. Blackford contributed to this report. John Cheves: (859) 231-3266. Twitter: @BGPolitics. Blog: Bluegrasspolitics.bloginky.com.

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