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Religious Tolerance logo

Same-sex marriage (SSM) in Kentucky.

Part 7: 2014-JUL:
District Court rules that KY must allow
same-sex couples to marry in the state.

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This topic is continued from the previous essay

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Federal District Court Judge John G. Heyburn II:

"In America, even sincere and long-held religious beliefs do not trump the constitutional rights of those who happen to have been out-voted."

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2014-JUL-01: District Court Judge ruled ban on in-state marriages by same-sex couples is unconstitutional:

Back on FEB-12, Judge John G. Heyburn II, of the¬ federal District Court for the¬ Western District of Kentucky issued a memorandum opinion in Bourke v. Beshear. He stated that Kentucky must recognize same-sex marriages that had been legally solemnized out-of-state. He commented at that time that the case did not address the obvious second question: whether same-sex couples also had a legal right to marry within Kentucky.

He wrote at that time:

"... there¬ is¬ no doubt¬ that¬ Windsor¬ and this Court‚€™s¬ analysis¬ suggest a possible result to that question."

"Windsor" refers to the U.S. Supreme Court ruling on 2013-JUN-26 that repealed Section 3 of the federal Defense of Marriage Act (DOMA) by declaring it unconstitutional. The ruling required the federal government to include many legally married same-sex couples in their 1,138 programs that give benefits, protections, tax advantages, etc. to married couples and their children. The reasoning used in the ruling by the majority of Supreme Court Justices subsequently triggered over 70 lawsuits in federal and state courts during the following 12 months concerning same-sex marriages.

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Two days after Judge Heyburn's memorandum in February, two unmarried same-sex couples from Louisville, KY asked to join the case:

  • 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. 1,2

They sought the right to marry within Kentucky.

Love had needed heart surgery scheduled in mid-2013 which had to be delayed so that Ysunza could obtain the necessary authority to make decisions for Love in the event of a medical emergency. If they had been able to be married, he would have automatically had that authority.

Blanchard and James testified that they were deterred from adopting children because, as an unmarried same-sex couple, they have been unable to jointly adopt. Either Blanchard or James could adopt a child, but the other partner would not be considered a second parent. At most, the state would consider him a friend of the child.

Lawyers hired by the state attempted to justify the ban on the basis that only an opposite-sex couple can naturally procreate. They argued that this tends to promote "... long-term economic stability through stable birth rates." Judge Heyburn rejected this argument saying that to ban marriage by same-sex couples:

"... makes just as little sense as excluding [opposite-sex] post-menopausal couples or infertile couples [from marriage]." 3,4

The two couples were added to the case Bourke v. Beshear. The case was renamed Timothy Love, et al. v. Steve Beshear -- commonly referred to as "Love v. Beshear."


2014-JUL-01: Excerpts from Judge Heyburn's ruling in Love v. Beshear:

Judge Heyburn based his 19 page ruling on the now familiar grounds: that the Kentucky marriage statute and constitutional amendment that bans same-sex marriage violated the Equal Protection clause in the 14th Amendment of the U.S. Constitution. Many other state and federal courts during the previous year had based their rulings on both the due process and equal protection clause of the 14th amendment.

He wrote:

"For the reasons that follow, this Court holds that the Commonwealth‚€™s exclusion of same-sex couples from civil marriage violates the Equal Protection Clause. ..."

"The Fourteenth Amendment to the U.S. Constitution provides, in pertinent part:

' No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. ...'

Plaintiffs assert that Kentucky‚€™s laws violate the Equal Protection Clause by denying them a marriage license and refusing them the accompanying benefits that opposite-sex spouses enjoy. ... These benefits include but are not limited to: lower income and estate taxes, leave from work under the Family and Medical Leave Act, family insurance coverage, the ability to adopt children as a couple, the participation in critical legal and medical decisions on behalf of one‚€™s partner, and, perhaps most importantly, the intangible and emotional benefits of civil marriage. Plaintiffs seek an order declaring the state‚€™s pertinent constitutional and statutory provisions unconstitutional and enjoining their enforcement. ..."

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"The right to marry is a fundamental right situated within the due process right to liberty. ... The right to marry is a nonenumerated fundamental right; that is, it is not written in the Constitution. Its constitutional significance arises from various protected liberty interests, such as the right to privacy and freedom of association. ... Most of our liberty interests -- e.g. privacy, autonomy, procreation, travel -- exist independent of the government. By contrast, civil marriage and the government are inseparable. The state institution of marriage -- the issuance of marriage licenses and the distribution of benefits based on marital status -- has become an integral component of the fundamental right to marry. It is in this way that civil marriage has become:

'... objectively, deeply rooted in this Nation‚€™s history and tradition ... and implicit in the concept of ordered liberty.' (Washington v. Glucksberg, ... (1997)).

This atypical tie to the government makes the fundamental right to marry all the more challenging to consider. ..."

"The state‚€™s attempts to connect the exclusion of same-sex couples from marriage to its interest in economic stability and in 'ensuring humanity‚€™s continued existence' are at best illogical and even bewildering. These arguments fail for the precise reasons that Defendant‚€™s procreation argument fails.

Numerous courts have repeatedly debunked all other reasons for enacting such laws. The Court can think of no other conceivable legitimate reason for Kentucky‚€™s laws excluding same-sex couples from marriage.

To sidestep these obvious deficiencies, Defendant argues that the state is not required to draw perfect lines in its classifications. By this argument, the state can permissibly deny marriage licenses to same-sex couples but not [deny licenses to] other couples who cannot -- or choose not to -- procreate 'naturally.' ..."

"In Bourke, this Court devoted considerable thought and effort to addressing the sincere questions and concerns of Kentuckians about the recognition of same-sex marriage. Not surprisingly, the Bourke opinion received significant attention and response, both in
support and in opposition. Those opposed by and large simply believe that the state has the right to adopt a particular religious or traditional view of marriage regardless of how it may affect gay and lesbian persons. But, as this Court has respectfully explained, in America even sincere and long-held religious views do not trump the constitutional rights of those who happen to have been out-voted.

On the other side, many responses reinforced in very personal ways how unconstitutional discrimination harms individuals and families to their very core. These responses reinforce the notion that invalidating Kentucky‚€™s laws validates the enduring relationships of same-sex
couples in the same way that opposite-sex couples‚€™ relationships are validated. Since this Court‚€™s Bourke opinion, the legal landscape of same-sex marriage rights across the country has evolved considerably, with eight additional federal district courts and one circuit
court invalidating state constitutional provisions and statutes that denied same-sex couples the right to marry."

With this opinion, this Court joins their company.

The Court‚€™s holding today is consistent with Bourke, although it requires different relief. The ability to marry in one‚€™s state is arguably much more meaningful, to those on both sides of the debate, than the recognition of a marriage performed in another jurisdiction. But it is for that very reason that the Court is all the more confident in its ruling today. Being otherwise sufficiently advised, IT IS HEREBY ORDERED THAT to the extent Ky. Rev. Stat. ¬ß¬ß 402.005 and .020(1)(d) and Section 233A of the Kentucky Constitution deny same-sex couples the right to marry in Kentucky, they violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, and they are void and unenforceable.

IT IS FURTHER ORDERED that for all the reasons set forth in this Court‚€™s Memorandum Opinion and Orders in this case dated February 28, 2014 and March 19, 2014, the order here is STAYED until further order of the Sixth Circuit.

This is a final and appealable order. 10

[Bold and italicized characters were not in the original.]

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This topic continues 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. "Couple sues Kentucky to issue same-sex marriage license," Fox News, 2014-FEB-14, at:
  2. Andrew Wolfson, "Couples ask judge to allow gay marriages in Kentucky," USA Today, 2014-FEB-14, at:
  3. Andrew Wolfson, "Ky. says gay marriage threatens state's birth rates," Courier-Journal, 2014-JUL-01, at:
  4. Andrew Wolfson, "Gays have right to marry in Kentucky, judge rules," Courier-Journal, 2014-JUL-01, at:
  5. David Demirbilek, "Southern Poverty Law Center repeats 'hate group' claim about Family Research Council," Daily Caller, 2012-SEP-13, at:
  6. "Kentucky Judge Commits 'Serious' Error in Marriage Ruling," Family Research Council, 2014-JUL-01, at:
  7. Scottie Thomaston, "Kentucky same-sex marriage ban ruled unconstitutional," Equality on Trial, 2014-JUL-01, at:
  8. Chris Johnson, "Will the 6th Circuit allow Michigan marriages to continue?" Washington Blade, 2014-MAR-24, at:
  9. "cchretien," "Activist Judge Attempts to Redefine Marriage in Kentucky," National Organization for Marriage, 2014-JUL-03, at:
  10. Judge John G. Heyburn II, "Memorandum Opinion and Order," Federal District Court for the¬ Western District of Kentucky, 2014-JUL-01, 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-FEB-16
Latest update: 2015-MAR-19
Author: B.A. Robinson
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