The recent U.S. District Court decision in Bourke v. Beshear ordering Kentucky to recognize out-of-state same-sex marriages has created an opportunity to relitigate same-sex marriage rights in another court: public opinion.
The last time Kentuckians formally weighed in on marriage rights for gays and lesbians, fairness advocates lost big.
A whopping 75 percent of those voting in 2004 codified in the state constitution a ban on same-sex marriage. Kentucky could neither issue nor recognize marriage licenses in the cases of gay or lesbian couples.
Gov. Steve Beshear and Attorney General Jack Conway faced the decision whether to appeal the Bourke ruling. Conway sided on a solid tradition of Kentucky leadership in opting to let the decision stand.
Beshear's decision, however, to override his attorney general and to delay the inevitable by hiring an outside attorney to pursue an appeal is a rejection of Kentucky's past civil-rights leadership.
It is an affront to the human dignity of thousands of gay and lesbian Kentuckians, and a failure to recognize the evolution of Kentucky's views on marriage equality.
Kentucky joined 10 other states in 2004 in a national rush to insulate itself from the threat of happily married gays and lesbians. According to proponents of a marriage ban, a married gay couple devalued the love, affection and mutual support inherent in "traditional" opposite-sex couples.
But the heady confidence that anti-marriage equality advocates showed in 2004 has waned.
Marriage-equality advocates and opponents both acknowledge that Kentucky's views on gay marriage and gay rights have changed. In the years since the 2004 pummeling, Kentuckians have softened their views. A recent Herald-Leader poll revealed that the once unsurmountable opposition to gay marriage has suddenly become surmountable.
The 75 percent from 2004 collapsed to 55 percent. Another poll from Public Policy Polling identified 52 percent support for same-sex civil unions.
Moreover, in the past year, the small city of Vicco in Eastern Kentucky joined Lexington, Louisville and Covington in establishing a fairness ordinance to protect the civil rights of lesbian, gay, bisexual and transgender men and women. Frankfort and Morehead quickly followed suit, and new movements are burgeoning in Bowling Green, Danville and Owensboro.
In Lexington, a unanimous city council voted to extend health care benefits to the same-sex partners of city employees, and a Shapiro Group poll showed that 83 percent of Kentuckians support workplace discrimination protections for the LGBT community.
If the 2004 vote were held today, the results would be very different.
Still, let's be clear: rights ought not be subject to referendum. Our federal Constitution guarantees protections to minorities through its 5th and 14th Amendments providing for "equal protection." This protection does not cheapen our democratic institutions — it strengthens them.
Court rulings invalidating the federal Defense of Marriage Act and California's Proposition 8, as well as the 15 gay marriage-affirming decisions that have followed, depend on a simple and powerful premise; in Justice Anthony Kennedy's words: the principal purpose of anti-gay marriage legislation is "to impose inequality."
"Equal protection" removes this inequality. Equal protection opens schools and the ballot box to all Americans. It creates a society that encourages full participation. It offers the promise of the American Dream to all people — black, white, brown; gay and straight.
Kentucky led when it became the first state in the South to offer civil rights protections to African-Americans.
Will Kentucky be the first state in the South to recognize same-sex marriages in any form?