In same-sex marriage case, plaintiffs and their lawyers push for Kentucky to be on 'front end of change'

jcheves@herald-leader.comAugust 2, 2014 

LOUISVILLE — Laura Landenwich had to explain why Kentucky should overturn centuries of tradition and its own constitution to recognize same-sex marriage — and she had to finish in her allotted 15 minutes while a panel of experts interrupted her with questions.

"To identify an entire class of individuals and say 'We don't like the way you procreate or don't procreate is — '" Landenwich began.

"Well, let's get to the heart of what the state is saying," interjected Sam Marcosson, a University of Louisville constitutional law professor. "Same-sex couples may be perfectly fine. But we have a greater interest in opposite-sex couples. They not only produce children but they play a role in raising those kids, and those kids will take their places in society as contributing citizens."

"Natural procreation is about sex," Landenwich responded. "It's about what happens in the bedroom. And the Supreme Court has ruled in no uncertain terms that the state has no interests in that realm."

Landenwich, a 34-year-old civil-rights attorney, stood on a recent rainy Friday in a dark-paneled courtroom at the U of L law school. She faced a half-dozen other lawyers who fully agreed with her position. But this was a "moot court" proceeding that required them to act like skeptical judges. In moot courts, lawyers practice in private before they're hammered in public, so they can massage the kinks out of their arguments.

Meet the judges who will hear Kentucky's same-sex marriage case

On Wednesday, Landenwich will rise before a three-judge panel of the U.S. 6th Circuit Court of Appeals in Cincinnati to make her case for real. She is part of the legal team challenging a 1998 Kentucky law and a 2004 state constitutional amendment that limited marriage to heterosexuals.

Opposing her will be private attorneys paid $100,000 by Democratic Gov. Steve Beshear to defend the state's same-sex marriage ban.

They won't be alone. The other states in the 6th Circuit — Tennessee, Ohio and Michigan — will present similar cases. In each of those places and elsewhere around the country, federal district judges over the past year have been busy striking down state prohibitions against same-sex marriage, as has the 10th Circuit Court of Appeals in Denver and the 4th Circuit Court of Appeals in Richmond, Va.

Kentucky's marriage ban was ruled unconstitutional in two decisions handed down by U.S. District Judge John G. Heyburn II in Louisville, although he put his rulings on hold, pending appeal to the 6th Circuit.

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

Gay and lesbian couples can marry in 19 states and the District of Columbia. Until a year ago, nobody thought they would see Kentucky on that list anytime soon. Now — over the opposition of its governor and half of its voters, according to a poll last month — it seems possible. Ultimately, the U.S. Supreme Court is expected to decide the matter for the nation in the next year or two.

The plaintiffs say they're grateful for their day in court.

"I never thought I would live to see this," said Timothy Love, 55, a Louisville retail manager who wants to wed his longtime partner, Larry Ysunza. "And I think it's crazy that I've had to wait until 2014."

'This is my home, too'

Love and Ysunza have been together for 34 years. They arranged a civil union ceremony in Vermont in 2000. But that meant nothing under Kentucky law, which the General Assembly rewrote in 1998 specifically to define marriage as a relationship between one man and one woman.

Love and Ysunza deal with dozens of headaches and heartbreaks because they aren't husbands. They have difficulty buying property together. They must jump through hoops to assist each other with medical decisions. If they adopted a child, only one could be named as parent.

In 2004, Kentucky legislators decided that a law banning same-sex marriage wasn't enough. They said the state's constitution must be amended to include the ban — and to prohibit recognition of other states' civil unions — so no "sorry liberal judge" could come along and challenge Kentucky's traditional, Christian definition of wedlock.

"Once this amendment passes, no activist judge, no legislature or county clerk 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 women for the stability of society and for the greater glory of God," said state Sen. Vernie McGaha, R-Russell Springs, in a Senate floor speech that year.

During a House debate on the amendment, gays and lesbians were said to suffer "unfortunate afflictions." Outside the Capitol, at one of the pro-amendment rallies that drew thousands of people, evangelist James Giles declared: "Homosexuals deserve AIDS, and worse, they deserve hell."

There was an aggressive campaign for the amendment throughout the year, including "Sanctity of Marriage" rallies around the state. Nearly 75 percent of Kentucky voters backed the measure that November.

Love doesn't like to remember 2004.

"Those were dark days," said Love, who has spent his entire life in the same working-class neighborhood east of downtown Louisville. "You would be driving down the highway and you'd hear people yelling about you on talk radio, and there were all these billboards declaring 'Marriage equals one man plus one woman.' Then the vote came in.

"Honestly, I just wanted to leave," he said. "I wanted to leave the state. But my mom was living with us, and she was older, and our jobs — we couldn't just pack up and go. And you know what? This is my home, too."

A formal invitation

The U.S. Constitution never mentions marriage. It's established that states can regulate marriage within their borders as they see fit.

Up to a point.

In 1967, in a case called Loving v. Virginia, the U.S. Supreme Court struck down a Virginia law allowing a white husband and black wife to be prosecuted for the crime of "miscegenation," or race-mixing. The court said a state's authority over marriage does not trump the Constitution's Fourteenth Amendment, which prohibits the states from denying the basic civil rights to which all Americans are entitled.

"Marriage is one of the basic civil rights of man, fundamental to our very existence and survival," Chief Justice Earl Warren wrote for the court. "To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the state's citizens of liberty without due process of law."

The court returned to the subject in June 2013.

The state of New York had recognized the marriage of two female residents, Edith Windsor and Thea Spyer, who legally wed in Canada. But Congress in 1996 passed the Defense of Marriage Act, a law that barred the federal government from acknowledging same-sex marriages. So Windsor had to pay $363,053 in federal estate taxes following her wife's death because — according to Congress — she wasn't entitled to spousal tax benefits.

Windsor sued all the way to the Supreme Court — and won. In U.S. v. Windsor, a 5-to-4 court majority ruled that DOMA interfered with New York's established right to recognize same-sex marriage if it chose. The U.S. Treasury was ordered to send Windsor a tax refund.

Having settled a relatively simple federalism conflict, the court surprised many by going further.

It criticized DOMA as "humiliating" to gays and lesbians. It sympathized with couples prohibited from marrying, and with their children, whose families are officially denied existence. It suggested that DOMA — with language similar to state marriage bans — deprived these Americans of their Fifth Amendment due-process rights and Fourteenth Amendment equal-protection rights.

"Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways," Justice Anthony Kennedy wrote for the majority. "The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect — to disparage and to injure those whom the state, by its marriage laws, sought to protect in personhood and dignity."

To people on both sides of the debate, Windsor sounded like a formal invitation to sue the more than 30 states with same-sex marriage bans.

In Louisville, Timothy Love put down the newspaper and reached for his telephone to find a lawyer.

The change train

Love called the Fairness Campaign, a gay-rights organization in Louisville, and the Kentucky chapter of the American Civil Liberties Union. Would they represent him and Ysunza in a marriage equality lawsuit against the state of Kentucky?

No, they would not.

"The ACLU's national office did an in-depth analysis of the states to determine where they thought the best chances of winning these suits would be. Kentucky was not on the list," Chris Hartman, director of the Fairness Campaign, recently recalled. "Fairness does not have its own attorneys on staff, so we deferred to the ACLU. No one could have anticipated how swiftly this would move, how many judges would rule unanimously in this direction."

But someone did.

A few blocks from Love's home, Shannon Fauver and Dawn Elliott run a two-woman law practice out of an old house next-door to a hipster beer joint. They handle all sorts of cases, criminal and civil, as small firms tend to.

In 2012, two gay Louisville men — legally wed in New York — asked Fauver for help filing jointly for bankruptcy as a married couple. Nobody in Kentucky had done that before, but with relatively little fuss, Fauver managed it.

The bankruptcy case won the firm many friends in Louisville's gay and lesbian communities. A year later, with the ink barely dry on the Windsor decision, same-sex couples who were legally wed outside Kentucky approached the firm. The Supreme Court says it's illegal to deny same-sex marriages from places where they are valid, the couples said. Can we sue Kentucky to demand recognition of our marriages?

Absolutely, let's do it, said Fauver and Elliott.

"When I studied in law school, it seemed like every time I read about an important social change in America, like civil rights or equality, every other state jumped on the change train — and then Kentucky finally, reluctantly, grudgingly followed behind," said Elliott, a Louisville native, in a recent interview. "Just once I wanted Kentucky to be on the front end of change and not on the back end."

Going to court

The lawyers assembled three male couples and one female couple who lived in the Louisville metro area, all legally married elsewhere, some with children. The lead plaintiff was Gregory Bourke, 56, married in Canada nine years earlier to Michael DeLeon. They filed suit against the governor in Bourke v. Beshear exactly one month after the Supreme Court ruled in Windsor.

Attorney General Jack Conway's office, defending the state, asked the court to dismiss the suit. The people of Kentucky already have decided this, the state said.

"Kentucky does not recognize same-sex marriage," wrote Clay Barkley, assistant attorney general.

As motions, responses and scheduling orders piled up, and similar marriage suits proceeded around the country, making headlines, Fauver and Elliott wondered if they were in over their heads. Plus, they weren't paid for this. They had to represent other clients to keep their doors open.

The women sought assistance from old law school classmates working at the respected downtown firm of Clay Daniel Walton & Adams, lawyers who specialize in civil rights, such as prisoner abuse and workplace discrimination. Laura Landenwich, Dan Canon and Joe Dunman joined the legal team.

The new lawyers immediately worried about the judge assigned to the case: John Heyburn, appointed to the bench in 1992 by Republican President George H.W. Bush on the recommendation of Republican U.S. Sen. Mitch McConnell, for whom he once worked as special counsel. In the past, Heyburn had not hesitated to dismiss the lawyers' civil-rights suits before trial if he believed they lacked merit.

"He's not known as a liberal judge at all," Landenwich said recently. "He's not considered plaintiff-friendly. But none of the judges in this district are. They're all Republican appointees."

She paused.

"Obviously, our concerns proved to be unfounded," she added.

'A difficult, novel case'

On Feb. 12, Heyburn dropped a bombshell. Citing the Supreme Court's Windsor ruling, he declared that Kentucky must recognize same-sex marriages from outside its borders. Although the people of Kentucky voted on marriage, majority rule doesn't mean the rights of a minority can be ignored, the judge wrote.

"For years, many states had a tradition of segregation and even articulated reasons why it created a better, more stable society," Heyburn wrote. "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. Here as well, sometime in the not too distant future, the same understanding will come to pass."

Heyburn awarded the plaintiffs' lawyers $70,778 in attorney's fees and court costs. On his own initiative, he tossed in a $10,000 bonus.

"This was a difficult, novel case in which plaintiffs' counsel showed considerable skill and determination," Heyburn wrote.

Conway — who plans to seek the Democratic nomination for governor in 2015 — quit the case at a tearful Capitol news conference, telling Beshear that he would need a new lawyer if he wanted to appeal.

"From a constitutional perspective, Judge Heyburn got it right, and in light of other recent federal decisions, these laws likely will not survive on appeal," Conway said. "We cannot waste the resources of the office of the attorney general pursuing a case we are unlikely to win."

Beshear hired the Ashland law firm of VanAntwerp Monge Jones Edwards & McCann to represent him as he fought on. Nothing personal against gays and lesbians, but a higher court should decide this, the governor said.

"This is part of our ongoing effort to ensure the matter is fully before the 6th Circuit and to bring finality and certainty to this matter for the people of Kentucky in the quickest possible manner," Beshear spokesman Terry Sebastian said recently.

Love v. Beshear

Back in Louisville, the lawyers launched Phase Two.

While Heyburn was still considering the first lawsuit last winter, which was limited to out-of-state marriages, they signed up four same-sex couples willing to sue for a Kentucky marriage license so they could wed at home. Among the couples who called them, after reading about Bourke v. Beshear in the newspaper, was Timothy Love and Larry Ysunza.

"They struck us as the perfect clients," Landenwich said. "Hard-working, average citizens, articulate, together a long time. There is a public relations aspect to all this. If you're going to get the public on board, you have to have sympathetic plaintiffs with good back stories."

On Valentine's Day, just 48 hours after Heyburn ruled against the governor in Bourke, the lawyers filed Love v. Beshear.

"Of course we had to use that name," Landenwich said.

Given the sentiments Heyburn expressed in his first decision, it seemed likely that Love and his co-plaintiffs would succeed. However, Beshear's lawyers mounted a fresh defense. They filed a motion arguing that Kentucky has an economic interest in not letting gays and lesbians wed because they cannot make the babies who will grow up to become the next generation of workers and consumers.

"Only man-woman couples can naturally procreate," attorney Leigh Gross Latherow wrote. "Fostering procreation serves a legitimate economic interest that is rationally related to the traditional man-woman marriage model. Thus, same-sex couples are not similarly situated to man-woman couples, and the distinction drawn by Kentucky's statutes is rationally related to a legitimate interest of Kentucky."

Heyburn ruled against the governor for the second time on July 2. He ordered Kentucky to issue marriage licenses to same-sex couples, but — as with Bourke — he put his order on hold pending an appeal.

The judge tartly dismissed the procreation defense. Excluding homosexuals from wedlock has no effect on heterosexuals wanting to marry and have children, he wrote.

"These arguments are not those of serious people," Heyburn wrote.

Love said he's baffled by Beshear's defense, which the governor's lawyers are expected to make again before the 6th Circuit on Wednesday.

"I can't be certain, but I think their argument is that if I'm not allowed to marry Larry then I'll go out and marry a woman instead, and we'll have children together because I was pressured into it, and that will boost the population," Love said. "As we know, that sort of situation does not turn out well for anyone involved."

'Like everyone else'

People who support the right to same-sex marriage say it will look as inevitably correct to future Americans as racially mixed schools do today, 60 years after the Supreme Court, in Brown v. Board of Education, instructed the states to start dropping their segregation barriers.

"This is the civil-rights struggle of our time. It's the next group that wants to be treated like everyone else," Landenwich said. "You had blacks in the '60s and women in the '60s and '70s. Now it's gays and lesbians."

Opponents strongly disagree.

"That's an invidious comparison," said Martin Cothran, senior policy analyst for The Family Foundation of Kentucky.

The Family Foundation lobbied for the 2004 constitutional amendment on marriage, and it filed a friend-of-the-court brief supporting Beshear at the 6th Circuit.

"Gays were never enslaved. Gays never had to drink at separate water fountains," Cothran said. "The things that blacks had to go through were so much different that's it not even a rational comparison."

What's really at stake on Wednesday is Kentucky tradition, Cothran said. Kentuckians long ago agreed that marriage is a sacred institution between a man and a woman, and they felt so strongly that they wrote it into their constitution, he said. Heyburn, an unelected judge, would throw all that away, he said.

"The court decisions we're seeing around the country are political decisions, taking the idea that 'Everyone else is doing it' and raising it to a judicial doctrine," Cothran said. "Conservatives cite tradition, morality, even religion as the justification for these laws. But the courts are saying you can't do that anymore. Only liberal morality can count."

Dan Canon, one of the plaintiffs' lawyers, agreed that tradition is unlikely to prevail in this case. That's how the federal courts are meant to work, basing their decisions on the U.S. Constitution rather than public opinion, Canon said.

"'Because we've always done it this way' or 'Because we all got together and voted on it' isn't a proper legal justification to deny someone their civil rights," Canon said.

"Let me explain it this way," he said. "Until 2000, there was still an anti-miscegenation statute on the books in Alabama. Technically, it was against the law for white people to marry outside their race. So in the year 2000 — just 14 years ago and more than 30 years after the Supreme Court ruled that this is plainly unconstitutional — the state of Alabama held a public referendum to determine where the voters' heads were at on repealing this law.

"Forty percent of the people voted to keep the statute, to declare that mixed-race marriages should be illegal. In the year 2000."

Canon sat silently for a few moments.

"As a believer in democracy, I want to say I have faith in public opinion," he finally said. "But."

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

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