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Movement toward same-sex marriage (SSM) in Kentucky.

Part 2:
2014-FEB: Court issues memorandum: state
to recognize out-of-state same-sex marriages.

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This topic is continued from the previous essay

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2014-FEB-12: Federal District Court requires Kentucky to recognize out-of-state same-sex marriages:

Federal U.S. District Judge John G. Heyburn II in Kentucky issued a memorandum opinion in the case Bourke v. Beshear. He stated that the state government has the responsibility to define marriage within its borders, but cannot "impose a traditional or faith-based limitation" to marriage unless it has a sufficient justification. Judge Heyburn, an appointee of President George H.W. Bush (R), wrote:

"While Kentucky unquestionably has the power to regulate the recognition of civil marriages, those regulations must comply with the Constitution of the United States. This court’s role is not to impose its own political or policy judgments on the Commonwealth or its people. Nor is it to question the importance and dignity of the institution of marriage as many see it. Rather, it is to discuss the benefits and privileges that Kentucky attaches to marital relationships and to determine whether it does so lawfully under our federal constitution."

"Assigning a religious or traditional rationale for a law does not make it constitutional when that law discriminates against a class of people without other reasons"

"In the end, the Court concludes that Kentucky’s denial of recognition for valid same-sex marriages violates the United States Constitution’s guarantee of equal protection under the law, even under the most deferential standard of review. Accordingly, Kentucky’s statutes and constitutional amendment that mandate this denial are unconstitutional." 1

The equal protection clause is in the 14th Amendment to the U.S. Constitution.

This comment flies in the face of countless postings on the Internet and other media by religious and social conservatives. The vast majority of these take the position that the legislature or people of a state are free to pass any restrictive legislation or add any amendments to their state constitution that ban same-sex marriage, even if they violate the equal protection clause of the 14th Amendment of the federal constitution.

Judge Heyburn noted that the Family Trust Foundation in Kentucky, Inc. submitted an amicus curiae brief in opposition to marriage equality. They provided what they felt were legitimate interests by the state to justify prohibiting same-sex couples from marrying. These included:

  • Responsible procreation and child rearing;

  • Steering naturally procreative relationships into stable unions;

  • Promoting the optimal child rearing environment; and
  • Proceeding with caution when considering changes in how the state defines marriage.

The terms "responsible procreation" and "responsible parenting" are widely used by social and religious conservatives who are opposed to same-sex marriage. The terms refer to a family structure in which one male and one female are married to each other, and conceive children together. This way, any children that they procreate contain DNA that is a mixture of the DNA from both parents. This, of course, makes children who are added to the family through adoption, surrogacy, or some forms of assisted procreation to be examples of what they would consider "irresponsible procreation." Surprisingly, there has been little outrage, either from opposite-sex couples who have adopted or from adoption agencies.

Religious and social conservatives have justified their position against SSM by concentrating on the Regneurus study which examined parenting by same-sex parents. This is because it is the only major study that has concluded that families led by opposite-sex married parents are the optimum structure for child raising. This study has been severely criticized as unreliable. Some commentators have pointed out that the study's conclusion about the inadequacy of same-sex parenting is based upon a sample size of two and thus is statistically meaningless. There have been numerous similar studies by other groups which have reached the opposite conclusion: that children thrive when raised by loving, committed parents in stable and loving marriages, whether the parents are of the same sex or opposite sexes. All or essentially all of the major national professional psychology, psychiatric, and social worker associations have rejected the conclusions of the Regneurus study and support marriage equality.

Judge Hayburn dismissed all four justifications by the Family Trust Foundation to discriminate against same-sex couples, noting that:

"The State, not surprisingly, declined to offer these justifications, as each has failed rational basis review in every court to consider them post-Windsor, and most courts pre-Windsor. ... The Court fails to see how having a family could conceivably harm children. Indeed, Justice Kennedy [of the U.S. Supreme Court] explained that it was the government’s failure to recognize same-sex marriages that harmed children, not having married parents who happened to be of the same sex: [I]t humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives. (Windsor , 133 S.Ct. at 2694). 1

Judge Hayburn concluded:

"Other than those discussed above, the Court cannot conceive of any reasons for enacting the laws challenged here. Even if one were to conclude that Kentucky’s laws do not show animus, they cannot withstand traditional rational basis review. ... Indeed, to date, all federal courts that have considered same-sex marriage rights post-Windsor have ruled in favor of same-sex marriage rights. This Court joins in general agreement with their analyses."

As with so many other recent federal court decisions, Judge Heyburn's decision is based upon the equal protection clause in the 14th Amendment to the U.S. Constitution. These clauses require states and the federal government to treat couples and individuals equally, unless there is a really good reason why some groups of people should be discriminated against. According to Judge Heyburn, pointing out that marriage has traditionally been restricted to one woman and one man is not a valid reason to violate the U.S. Constitution. Also, justifying marriage discrimination against same-sex couples with the argument that in the Bible marriages were always between one man and 1 or more women 2 is not a valid argument either, because of the wall of separation between church and state deliniated in the First Amendment to the U.S. Constitution.

One of the plaintiffs' attorneys, Shannon Fauver, responded to the memorandum opinion:

"In theory, same-sex and opposite sex couples should have the same rights. We're so excited. Legally, I don't think he had a choice. He had to rule in our favor."

Michael A. Lindenberger, writing for Time Magazine, said:

"Shannon Fauver, the attorney for the one of the couples, told TIME that they had brought a more limited case out of fear that pressing too hard all at once could backfire in the state.

'This is Kentucky, come on, so we decided it would go over better with the conservative courts if we just focused on the out-of-state marriage,' Fauver said. 'We thought it’d be easier to win.'

The plaintiffs filed suit exactly 30 days after the Windsor ruling, but neither they nor their lawyers were prepared for how fast momentum shifted in favor of gay marriage as a result of Kennedy’s decision. 'None of us could have predicted the tide that has happened over the past couple of months with all the other states allowing same sex,' Dan Canon, another lawyer in the case, said.

The majority of Kentuckians oppose gay marriage and local criticism to the ruling was fierce – something Heyburn anticipated in his ruling.

'Many Kentuckians believe in 'traditional marriage,' he wrote. 'Many believe what their ministers and scriptures tell them: that a marriage is a sacrament instituted between God and a man and a woman for society’s benefit. They may be confused—even angry—when a decision such as this one seems to call into question that view.'

He said even deeply held religious values can’t justify laws that deprive others of fundamental rights.

'Our religious beliefs and societal traditions are vital to the fabric of society,' he said. '[But] assigning a religious or traditional rationale for a law, does not make it constitutional when that law discriminates against a class of people without other reasons,' the opinion said." 3

As of 2014-FEB-16, Judge Heyburn has not yet issued a formal ruling. However, since the four plaintiff couples have all been legally married outside Kentucky, it is widely assumed that the Court decision will only require Kentucky to recognize legal same-sex marriages solemnized in other states. It will not require Kentucky to go the extra step and allow same-sex couples to marry within the state.

When Judge Heyburn issues his ruling he may place a stay on it pending an appeal. If no stay is activated, at least initially, same-sex couples would then be able to go to a nearby location like Canada, Iowa, Illinois, or New York, get married, return home to Kentucky and have their marriages recognized. That process would seem to make them eligible to access all of the benefits given to married couples by the state, as well as access to the 1,138 federal government's marriage benefits and protections.

However, the stay may well be activated, putting the Division Court on hold pending an appeal. Kentucky Attorney General Jack Conway (D) has yet to announce whether he will appeal the case.

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This topic is continued in the next essay

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References used:

The following information source was used to prepare and update the above essay. The hyperlink is not necessarily still active today.

  1. "Kentucky Gay Marriage Decision," Scribd, 2014-FEB-12, at:
  2. The Bible states that Solomon was married to 700 women.
  3. Michael A. Lindenberger, "Kentucky Judge Turns Gay Marriage Tide in the South," Time Magazine, 2014-FEB-13, at:
  4. Case 3:13-cv-00750-JGH, Bourke v. Beshear, U.S. District Court for the Western District of Kentucky, 2013-JUL-26, at:

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How you may have arrived here:

Home > "Hot" topics > Homosexuality > Same-sex marriage > SSM sub-menu> Kentucky > here

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Copyright © 2014 by Ontario Consultants on Religious Tolerance.
First posted: 2014-JAN-02
Latest update: 2014-FEB-16
Author: B.A. Robinson
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