Federal judge grants indefinite delay of his same-sex marriage ruling in Kentucky

jcheves@herald-leader.comMarch 19, 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

FRANKFORT — A federal judge on Wednesday gave Gov. Steve Beshear an indefinite delay in a court order requiring Kentucky to recognize same-sex marriages legally performed elsewhere.

U.S. District Judge John G. Heyburn II agreed to stay his Feb. 27 ruling on same-sex marriages "until further order" of the U.S. 6th Circuit Court of Appeals in Cincinnati, to which Beshear formally appealed the case this week. Heyburn's temporary stay in the case had been set to expire after Thursday.

"It is best that these momentous changes occur upon full review, rather than risk premature implementation or confusing changes. That does not serve anyone well," Heyburn wrote in his four-page order.

The governor applauded the decision.

"We appreciate Judge Heyburn granting the stay, which will prevent both actual and legal chaos while the appeal is underway. We will continue work on the appeal to the 6th Circuit Court of Appeals so all Kentuckians will have finality and understanding of what the law is, both in our commonwealth and in the United States," Beshear said.

Four same-sex couples who legally wed outside Kentucky sued Beshear last year for state recognition of their marriages. Heyburn sided with them and struck down portions of a 1998 state law and a 2004 state constitutional amendment that defined marriage as between one man and one woman and that prohibited the recognition of same-sex marriages from states where they are legal.

Beshear filed a motion last week asking Heyburn for an indefinite stay while the case — and several like it from other states — works its way through the appeals system, with the U.S. Supreme Court ultimately expected to decide the matter. Beshear warned of chaos if Kentucky is forced to recognize same-sex marriages only to reverse course months or years later should Heyburn's decision be overturned. Judges, county clerks and other public officials are looking to Frankfort for clear policy guidance, Beshear said.

"The only way to eliminate the risk of this irreparable harm is to maintain the status quo," Ashland attorney Leigh Gross Latherow wrote for Beshear. "Furthermore, failing to stay a ruling that is ultimately reversed on appeal could have wide-ranging impacts on those businesses and services where marital status is relevant, including health insurance companies, creditors, estate planners and a litany of others."

Beshear had to hire private attorneys using a $100,000 state contract after Attorney General Jack Conway, a fellow Democrat, backed out of the case, saying that Kentucky was on the wrong side of a losing battle against discrimination.

On Wednesday, Heyburn wrote that in deciding on a stay he had to balance the legitimate constitutional rights of the plaintiffs and other same-sex couples against the chaos that Beshear warned of. Tipping the scales, the U.S. Supreme Court intervened in a similar case in Utah and ordered a stay in same-sex marriage recognition pending an appeal there, a sign that "cannot easily be ignored," he wrote.

"Perhaps it is difficult for plaintiffs to understand how rights won can be delayed," Heyburn wrote.

"It is a truth that our judicial system can act with stunning quickness, as this court has; and then with maddening slowness. One judge may decide a case, but ultimately others have a final say. It is the entire process, however, which gives our judicial system and our judges such high credibility and acceptance. This is the way of our Constitution "

The plaintiffs were disappointed by Heyburn's indefinite stay, and they plan to promptly appeal it, said their attorney, Laura Landenwich of Louisville. Kentucky's same-sex couples have waited lifetimes for the right to marry, with all of the attendant benefits, so they don't want to wait any longer, Landenwich said.

In their motion to Heyburn opposing an indefinite stay, the plaintiffs included an affidavit from Cristal J. Fox, a Kentucky woman who legally married her wife last year in New York and now is eight months pregnant.

Fox said she wanted Heyburn's Feb. 27 order on marriage recognition to take effect immediately so her son can have two parents listed on his birth certificate, each of them enjoying full parental rights and responsibilities.

"Should the stay be allowed to expire, my wife and I won't have to endure the legal maneuvering to ensure that if something were to happen to me, our son will be able to be cared for by his other parent," Fox wrote.

"Allowing the stay to expire will simply allow us the same life and experience as any other heterosexual married couple."

While the case moves to the Court of Appeals, Heyburn is considering a related argument from new plaintiffs who are suing Beshear for the right to be issued same-sex marriage certificates inside Kentucky, in a case styled Love vs. Beshear. Heyburn's decision in that case is expected by this summer.

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

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