Eight same-sex Kentucky couples will ask the U.S. Supreme Court "in very short order" to overturn the state's ban on gay marriage, their attorneys said Friday.
The U.S. Supreme Court declined on Oct. 6 to hear other cases on the divisive issue, choosing to leave intact four appeals court decisions that established a constitutional right to same-sex marriage across much of the country. But on Thursday, a fifth decision — from a three-judge panel of the 6th Circuit U.S. Court of Appeals in Cincinnati — upheld gay marriage bans in Kentucky, Tennessee, Ohio and Michigan.
Same-sex couples from those four states want to skip a review by all of the 6th Circuit judges, sitting together, in favor of a direct appeal to the nation's highest court, said Laura Landenwich, an attorney for the Kentucky couples.
Legal scholars say the Supreme Court will be compelled to accept the couples' appeal because there is now, due in large part to federal court rulings, an unworkable split between the states on whether marriage is a fundamental right for all Americans.
Gays and lesbians legally can marry in 32 states and the District of Columbia. But if those couples cross the state line into Kentucky from West Virginia, Virginia, Indiana or Illinois, all of which allow gay marriage, their marriage is nullified, and all marital rights — such as tax benefits, hospital visitation privileges and full parenthood of adopted children — immediately disappear.
"The Supreme Court cannot tolerate this kind of limbo as to whether you have rights under the Constitution," said Carolyn Bratt, who taught civil-rights law at the University of Kentucky for more than 30 years.
"The Fourteenth Amendment, the equal protection clause, talks about certain basic liberty and privacy rights, and it says no state can deny these rights," Bratt said. "It applies to the federal government and to every state, and it applies between the states. It can't end at the state line."
For Bratt, this is more than a fascinating legal precedent in the making. It's also personal. Last year, Bratt wed her longtime partner, retired UK education professor Susan Scollay, in her home state of New York, where same-sex marriage is legal.
"My partner and I, we are married in New York, but we're right now in Florida, so we're not married," said Bratt, who was speaking by phone from her yacht docked near Sarasota. "When we come back to Kentucky, we continue to not be married. But if we go to Illinois, we are married again."
"It's intolerable," she said. "We travel from state to state with significant written documentation so that we're each allowed to make medical decisions for the other and so that each has power of attorney for the other and so on. And of course, we have to be very careful about where we die. If one of us dies in New York, then the other is entitled to collect Social Security survivor benefits, and she doesn't have to pay an inheritance tax. That's not true if we die in Kentucky."
Kentucky has 7,195 same-sex couples sharing a home and identifying each other as "spouse" or "partner," with about one-fourth of the couples raising a total of 2,270 biological or adopted children between them, according to U.S. Census data analyzed by the Williams Institute at the University of California at Los Angeles. Together, these households include 16,660 Kentuckians, or more than the population of Danville.
Many of these Kentuckians are upset that their state lags behind most others in marriage equality, said Chris Hartman, director of the Fairness Campaign, a gay rights group in Louisville.
"Frankly, it stinks," said Hartman, who on Friday helped organize a protest of the 6th Circuit's decision in downtown Louisville. "I can't deny that it's upsetting. Especially now that Indiana is enjoying legal marriage, and we can literally watch our neighbors across the Ohio River as they enjoy what we can't have because of discrimination here."
Attorneys for Kentucky's same-sex couples say they like their chances at the Supreme Court during this term, which ends next June.
In June 2013, the high court handed down a landmark 5-4 decision in U.S. vs. Windsor recognizing a marriage between two New York lesbians.
Although the court stopped short of declaring a right to same-sex marriage in that case, it upheld New York's authority to recognize such marriages. It called marriage bans "humiliating" to gay couples and their families, and it suggested that the bans deprive couples of their Fifth Amendment due-process rights and Fourteenth Amendment equal-protection rights.
Scores of same-sex couples seized on the Windsor decision to sue their states for marriage recognition, including Kentucky's plaintiffs, who challenged a 1998 state law and a 2004 state constitutional amendment that defined marriage exclusively as between one man and one woman.
U.S. District Judge John G. Heyburn II in Louisville sided with the plaintiffs in rulings this year. Democratic Gov. Steve Beshear appealed, saying that Kentucky needed "clarity and certainty" on the matter. On Thursday, after the 6th Circuit reversed Heyburn's rulings, Beshear said he would welcome the Supreme Court's intervention.
Joe Dunman, one of the attorneys for Kentucky's same-sex couples, said the strong wording in the Windsor opinion and the Supreme Court's consistent refusal to protect any state marriage bans "strongly suggests it will go our way."
"If the Supreme Court was really going to uphold these state bans, then it stands to reason that it would have done so already rather than refusing to grant cert to the cases on appeal before it last month," Dunman said.
It's also worth noting that many thousands of same-sex couples across the United States are marrying this year and establishing permanent family structures based on the Supreme Court's passive refusal to interfere so far, he added.
"There would be chaos if the Supreme Court were to step in now and say that no, there is no constitutional right" to same-sex marriage, Dunman said. "That is not something the court generally smiles on, creating that sort of confusion. It's not impossible they would do it, but it does seem highly unlikely."