Same-sex marriages performed in other states now legal in Kentucky

jcheves@herald-leader.comFebruary 27, 2014 

  • Q&A: Kentucky's same-sex marriage ruling explained

    Question: Does Attorney General Jack Conway have to appeal the judge's ruling?

    Answer: Legally, no. As attorney general, Conway is the state's lawyer, but he's allowed some discretion in how he represents Kentucky in court. Conway and Gov. Steve Beshear have 30 days to appeal the decision to the U.S. 6th Circuit Court of Appeals in Cincinnati. Having argued in favor of the same-sex marriage ban at the district court level, he could accept defeat. In fact, U.S. Attorney General Eric Holder this week urged his state counterparts to stop defending same-sex marriage bans, comparing the bans to the school segregation laws that began falling in the 1950s.

    Politically, it's complicated. Conway, a Democrat, is weighing a run for governor next year. Religious conservative groups are pressuring him to appeal Heyburn's decision. Some blasted him this week for not fighting hard enough to win the case in Heyburn's courtroom. A recent Bluegrass Poll found that 55 percent of registered voters in Kentucky oppose allowing gays and lesbians to marry in Kentucky.

    Q: Can same-sex couples get married in Kentucky?

    A: No. The only marriages recognized by Heyburn's order are those from places outside Kentucky where same-sex marriages are legal. However, Heyburn could issue another ruling dealing with same-sex marriages performed in Kentucky as early as this summer.

    Q: If a same-sex couple is legally married elsewhere, can they immediately seek the same benefits offered to all other married couples in Kentucky?

    A: Expect delays until there's more guidance from Frankfort. For example, Nore Ghibaudy, a spokesman for the Jefferson County clerk, told The Associated Press that until the state issues a directive notifying clerks of the legal change, no same-sex name changes or other legal documents will be issued.

    "We have to follow the law until we hear otherwise," Ghibaudy said. "Whatever it is, we'd have no problem doing it."

Timothy Burcham and Phillip Marcum wed two years ago in New York City, and starting Thursday afternoon, the Lexington men's marriage was as legal as anyone else's in Kentucky.

"We're ecstatic," said Burcham, a vice president at the Kentucky Community and Technical College System. "For us, it's long overdue recognition. It allows us to treat our relationship and our assets and our rights and responsibilities the same way that everyone else gets to."

Although much remains uncertain, Burcham said he looks forward to some of the legal advantages of marriage, such as being able to cover his spouse on his workplace health insurance plan.

"We're about to file joint tax returns for the first time," Burcham said.

U.S. District Judge John G. Heyburn II in Louisville issued a final order Thursday requiring Kentucky to recognize same-sex marriages legally performed in other states and countries. Heyburn struck down parts of a 1998 state law and a 2004 state constitutional amendment defining marriage in Kentucky as between one man and one woman, and prohibiting the state from recognizing same-sex marriages from elsewhere.

"To the extent (that state laws) deny validly married same-sex couples equal recognition and benefits under Kentucky and federal law, those laws violate the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, and they are void and unenforceable," Heyburn wrote in his two-sentence order.

However, Gov. Steve Beshear and Attorney General Jack Conway, who defended the same-sex marriage ban in court, have 30 days to appeal. And hours before Heyburn handed down his order, Conway's office filed a motion asking Heyburn for a "stay," a 90-day delay in implementing the ruling.

"This will give defendants time to determine if they will appeal the order, and the executive branch time to determine what actions must be taken to implement this court's order if no appeal is taken," Clay Barkley, a lawyer for Conway's office, wrote in Thursday's motion. "Should defendants elect to appeal from any final order, they reserve the right to seek a stay for the duration of an appeal."

Heyburn responded to Conway's request by scheduling a telephone conference call for the lawyers in the case for 2:30 p.m. Friday.

But for at least one day, same-sex marriages performed elsewhere are legal in Kentucky, said Laura Landenwich, an attorney for four same-sex married couples who sued Beshear and Conway last year.

"We're reluctant to celebrate just yet because we're in this odd position. For now, all of these laws are invalidated in Kentucky and the marriages are recognized as legal. But that all may change tomorrow," Landenwich said.

"It's a little frustrating, the attorney general politicking with this issue," she said. "I understand the politics on this are complicated, but the way he's handled this has really sort of muddled everything."

In a prepared statement, Conway said he's reviewing Heyburn's order. He and Beshear "will be determining promptly" whether to appeal, Conway said.

Although Heyburn can strike down state laws, it's ultimately up to Beshear and Conway to provide guidance for the state's executive branch and local elected officials, such as judges and county clerks, who handle everything from adoptions to name changes, lawyers in the case said.

The conservative Family Foundation of Kentucky issued several statements throughout the day criticizing Conway for not staunchly defending the state's same-sex marriage ban. Conway was so uninterested that he left the suit in the hands of "underlings" who lost, said Family Foundation policy analyst Martin Cothran.

"Until today, the only people in the attorney general's office who hadn't signed a motion in the marriage case are the janitor, the messenger boy and Jack Conway," he said. "This is a betrayal of Kentucky voters. The only thing missing is the thirty pieces of silver."

Also Thursday, Heyburn issued an order allowing new plaintiffs to join the suit against Beshear and Conway and to raise a new question.

The original plaintiffs were same-sex spouses who legally wed outside Kentucky and wanted state recognition. The new plaintiffs are two Jefferson County same-sex couples who want Kentucky to issue them marriage certificates: 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.

The new plaintiffs' complaint could be decided as early as this summer, yielding a second order from Heyburn that legitimizes all same-sex marriages inside the state of Kentucky, said Landenwich, who also represents the new plaintiffs.

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

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