Judge: Final order requiring Ky. to recognize same-sex marriages expected Thursday

jcheves@herald-leader.comFebruary 26, 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

LOUISVILLE — A federal judge said Wednesday afternoon that he would issue a final order within 24 hours requiring Kentucky to immediately recognize same-sex marriages performed outside the state.

In response, lawyers for the attorney general's office told U.S. District Judge John G. Heyburn II at a hearing that the state would "very promptly" decide whether to appeal the order.

Heyburn told lawyers that his final order will not include a stay postponing it from taking effect. "There could be some confusion" among Kentuckians who quickly seek legal benefits stemming from their same-sex marriages, such as joint tax-filing status, if the state appeals 30 days later and delays the implementation of the order or throws its future into question, Heyburn cautioned.

Gov. Steve Beshear and Attorney General Jack Conway, both Democrats, are defendants in the lawsuit. Attorneys for the state did not introduce evidence against same-sex marriage while the suit was being argued, limiting the case to issues of law.

Four same-sex couples who legally wed outside Kentucky sued the state last year for recognition of their marriages.

Heyburn issued a preliminary order Feb. 12 striking down portions of a 1998 state law and a 2004 state constitutional amendment defining marriage as between one man and one woman, and prohibiting the recognition of same-sex marriages from states where they are legal.

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 at the time.

Civil rights groups are urging Beshear and Conway to not appeal Heyburn's order when it's final. Religious conservative groups are urging the opposite.

Also Wednesday, Heyburn allowed a new group of plaintiffs to intervene in the case and demand that Kentucky county clerks issue marriage certificates to same-sex couples. The new plaintiffs are two Jefferson County couples: Timothy Love and Lawrence Ysunza, who have lived together for 33 years, and Maurice Blanchard and Dominique James, who have been together for 10 years.

However, Heyburn denied the new plaintiffs' request for a preliminary injunction, a court ruling that immediately would require Kentucky to issue marriage certificates to same-sex couples. The new case must move through the legal process just as the original case did because some of its facts are unique, the judge said.

"I've got a couple of plaintiffs who have been waiting for 30 years to get married," one of the plaintiffs' attorneys, Daniel Canon, told Heyburn. "The court has already ruled on their constitutional rights in the matter. I don't think they should have to wait any longer."

Heyburn responded: "I appreciate that people have waited a long time, but I think it's more important that the process be fair. We're talking about a matter of months."

The Family Foundation of Kentucky attended Wednesday's hearing and said it will file a friend-of-the-court brief against the new plaintiffs, arguing that Kentucky should not issue marriage certificates to same-sex couples.

"In 2004, the question was put before the Kentucky voters, who overwhelmingly approved the definition of traditional marriage between a man and a woman.

"Obviously that was a recent action by Kentucky voters and we intend to defend the expression of that sentiment," said Stan Cave, attorney for the Family Foundation.

John Cheves: (859) 231-3266. Twitter: @BGPolitics. Blog: Bluegrasspolitics.bloginky.com.

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