Movement toward same-sex marriage (SSM) in Kentucky.
Part 4: 2014-FEB:
Two couples ask to join Bourke v. Beshear case.
Court issues final ruling on out-of-state SSMs.
Attorneys General experience conflicts.
2014-FEB-14: Valentine's Day: Two unmarried couples ask to join Bourke v. Beshear case:
The District Court's memorandum opinion was issued on FEB-12. It indicates that Kentucky will have to recognize out of state same-sex marriages. Two days later, two same-sex couples from Kentucky requested to join the Bourke case. They are:
- Timothy Love and Lawrence Ysunza, who have been together for 33 years, and
- Rev. Maurice Blanchard and Dominique James, who have been together for a decade. They were earlier arrested in the Jefferson County Clerk's Office after they were denied a marriage license and refused to leave. They were convicted of trespassing in 2013-NOV and were fined $0.01. The couple considered that a victory. 1,2
They seek the right to marry within Kentucky for themselves and for all other loving, committed same-sex couples who want to marry.
One of the plaintiffs in this case, the Rev. Maurice Blanchard, said:
"The bottom line is Dominique and I have built our home here. We have family, friends, work, our church. We're here in Kentucky and it's important to have our equal rights recognized here without having to go somewhere else. So, we deeply respect the sanctity of marriage and that needs to happen where our home is at."
Her partner, Dominique James, said:'
"To have that acknowledged, we would be elated. Obviously, there's a lot to it. We just want to be treated equally to our heterosexual brothers and sisters. If we can get that, we will be satisfied."
The two couples went through the usual symbolic ritual of going to the Jefferson County clerk to purchase marriage licenses in the expectation that they would be refused. They were not disappointed.
In their complaint, they have asked to join the earlier lawsuit in the interest of "judicial economy," and because the two cases are essentially identical. If this request is allowed, then Judge Heyburn could decide their case directly. Otherwise, the couples would have to start over from scratch, probably with a different judge.
Attorney Shannon Fauver, one of the lawyers representing the two couples, said:
"I expect some type of opinion within the next 30 days. We've already laid the framework." 1
The two couples are represented by the same six lawyers who represented the four couples in the original lawsuit.
The two couples were allowed to intervene in the Bourke v. Beshear case, which was renamed "Love v. Beshear." 3 Judge Heyburn has asked that briefings about allowing SSMs to be solemnized within the state of Kentucky are due by 2014-MAY-28. 4
2014-FEB-27: U.S. District Court Judge John Heyburn issues his final ruling on out-of-state marriages by same-sex couples:
Judge Heyburn finalized his memorandum opinion of FEB-12 by issuing a final ruling. He determined that the laws in Kentucky and the amendments to its constitution that ban same-sex marriages:
"... violate the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, and they are void and unenforceable." 5
These are the same grounds as have been used in rulings by District Court judges during same-sex marriage cases in Oklahoma, Texas, Utah, Virginia, and now Kentucky between late 2013-DEC and late-2014-FEB. All have found SSM bans in state Constitution's to be void and unenforceable.
One of the plaintiffs' attorneys, Dan Canon said:
"We are cautiously optimistic. The order has been granted without qualification and without a stay."
However, Jack Conway, the Kentucky Attorney General, asked the judge to delay his order by 90 days so the state could decide whether to appeal.
Another attorney, Dawn Elliott, praised the ruling, saying.
"It's a great day to be from the commonwealth of Kentucky. I hope that the attorney general and governor that I voted for don't jump on the appeal bandwagon." 4
Kentucky Attorney General Jack Conway issued a statement on FEB-27 saying:
"I have 30 days to determine whether or not to file an appeal in this case, which is why I asked Judge Heyburn for a stay of his order this morning. I will be determining promptly, in consultation with Gov. (Steve) Beshear, whether or not to file an appeal in this case." 4
Conflicts faced by Attorneys General in Kentucky and elsewhere:
All Attorneys General are faced with a potential conflict while carrying out their duties. Their oath of office includes a promise to follow both the state and federal Constitutions. But, to our knowledge, no oath commits them to follow a specific course of action when the two Constitutions conflict with each other.
About 27 states have amended their Constitutions during the previous decade to ban SSMs. Thus they treat opposite-sex couples very differently from same-sex couples: the former can marry, the latter cannot. Meanwhile the federal Constitution contains an equal protection clause in its 14th Amendment that requires the states to treat all persons equally, and by extension, to treat all couples equally.
According to many religious and social conservatives, the amendment in the state Constitution takes precedence because it was directly passed by the voters. According to everyone else, and according to the federal Constitution's actual wording, it is the federal Constitution that takes precedence. Faced with this conflict, Attorneys General in Arizona and five other states have studied the situation, come to the conclusion that their state's Constitution's ban on SSMs violates the federal Constitution and thus is void and unenforceable. They have elected to not defend bans on same-sex marriage in the courts.
Martin Cothran is a senior policy analyst for the Family Foundation of Kentucky. Like most agencies whose name contains the word "Family," it is a conservative group opposing equal rights for LGBTs, same-sex marriage, and abortion access. He seems to have accused Attorney General Conway of unethical behavior by not making persuasive arguments against SSM in District Court. That is a very serious charge against one of the most senior officials in the state government. Cothran said:
"This is a betrayal of Kentucky voters, The only thing missing is the thirty pieces of silver. ... Not only was his brief in the Bourne vs. Beshear case badly argued, but yesterday attorneys for the AG and Gov. Steve Beshear didn’t even ask for a stay in the judge’s ruling despite being asked by the judge point blank if they wanted one. ... The longer the Attorney General drags his feet on this case, the worse it is for Kentucky voters. 6
Cothran is also quoted as saying:
"The Attorney General's office was clearly not intending to do its job. It only did what it was supposed to do after someone shed light on the fact that he was about to take one more action that favored those who are trying to disenfranchise Kentucky voters on the issue of marriage. ... If this were a private case, it would be legal malpractice." 7
The "one more action" might have involved same-sex marriages solemnized within Kentucky.
Allison Martin, a spokesperson for the Attorney General's office, said the Family Foundation of Kentucky's comments:
" .. are so irresponsible and baseless they warrant no further comment." 3
Cothran's opinion could possibly be correct. But I doubt it. From the accounts in the media, the Attorney General seems to have used the same arguments defending the SSM ban in Kentucky that other states have used in similar cases since mid-2013. District Courts in other states have rejected these arguments, and the Kentucky Court did as well.
Religious and social conservatives have given many reasons why they feel that same-sex marriage should be banned. Many of them make a great deal of sense when evaluated within conservative Christian belief systems. They provide an excellent argument why conservative Christian churches may wish to ban same-sex marriages within their congregations. However, these arguments have not proven to be valid in federal courts, which deals more with human rights than religiously-inspired ideas. Since the famous U.S. Supreme Court decision in Windsor v. United State during 2013-JUN, all of these anti-SSM arguments have been rejected by federal courts. A recent ruling by a District Court in Texas explained why.
The following information source was used to prepare and update the above essay. The hyperlink is not necessarily still active today.
- "Couple sues Kentucky to issue same-sex marriage license," Fox News, 2014-FEB-14, at: http://www.foxnews.com/
- Andrew Wolfson, "Couples ask judge to allow gay marriages in Kentucky," USA Today, 2014-FEB-14, at: http://www.usatoday.com/
- Andrew Wolfson, "Gay couples rushing to take advantage of order recognizing same-sex marriages in Kentucky," Courier-Journal, 2014-FEB-18, at: http://www.courier-journal.com/
- Brett Barroquere, "Same-Sex Marriage Now Legally Recognized in Ky.," ABC News, 2014-FEB-27, at: http://abcnews.go.com/
- Andrew Wolfson & Doug Stanglin, "Ky. ordered to recognize out-of-state gay marriages," USA Today, 2014-FEB-27, at: http://www.usatoday.com
- "Group charges AG with legal malpractice in marriage case," The Family Foundation of Kentucky, 2014-FEB-27, at: http://www.kentuckyfamily.org/
- "Gay Married Couples Must Wait For Name Changes," LEX18.com, 2014-FEB-28, at: http://www.lex18.com/
How you may have arrived here:
Copyright © 2014 by Ontario Consultants on Religious Tolerance.
First posted: 2014-FEB-14
Latest update: 2014-MAR-01
Author: B.A. Robinson