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Religious Tolerance logo

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

Part 6: 2014-FEB/MAR:
More reactions to the District Court's
ruling. Governor Beshear decides to
appeal to U.S. 6th Circuit Court of
Appeals. Stay granted. Appeal scheduled.

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This topic is continued from the previous essay

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wedding rings More reactions to the District Court decision (Cont'd):

  • President K. Joshua Koch of the Kentucky Equality Federation issued a statement welcoming:

    "... the decision by Judge Heyburn. We believe strongly in equal rights and state sovereignty, and that both are not mutually exclusive.

    However, when a group of religious radicals defaced the Kentucky Constitution in 2004, ... a document which guarantees freedom of conscience, life, liberty, and pursuit of happiness, their decision had broader ramifications than they expected. It is not acceptable to vandalize the Kentucky Constitution and violate the Commonwealth's own Bill of Rights, and then seek shelter behind the Federal Constitution's Tenth Amendment. ... "

    Kentucky Constitution, Section 2: 'Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority.'

    Kentucky Constitution, Section 26: 'To guard against transgression of the high powers which we have delegated, We Declare that every thing in this Bill of Rights is excepted out of the general powers of government, and shall forever remain inviolate; and all laws contrary thereto, or contrary to this Constitution, shall be void.'

    By these sections of the Kentucky Constitution's Bill of Rights, such a ban is unconstitutional. There is no special exception made for popularity of a measure, or whether absolute and arbitrary powers are granted by a later amendment. We stand with Kentucky and its own Constitution. While we wish the legislature had protected the constitutional rights of its own citizens without requiring a federal court's intervention, their inaction made this case inevitable. Free people will seek legal recourse from their oppressors, and they are to be commended when they do.

    As president, I issue a warning to Kentuckians that this decision, while important, has a very narrow application. We expect that compliance with the decision will lag or be outright refused in some jurisdictions. Further, it still does not rectify, as it could not, the inability of LGBTI couples to marry within Kentucky, nor did it add a statewide LGBTI Civil Rights protection law." 1

  • One News Now, a conservative Christian news source, reported that Kent Ostrander, spokesperson for the Family Foundation of Kentucky, said:

    "Our greatest concern is the way the attorney general and the governor betrayed the citizens of the commonwealth. They did not put forth a serious brief in the case. In fact, the attorney general had never signed any of the motions in the case [until after he had been charged with legal malpractice].

    "[Judge Heyburn] also now has received a same-sex couple from Kentucky that is not married, and he's going to consider striking down the other half of the amendment, which basically [means] Kentucky must validate same-sex marriages. In the meantime, for 90 days, the first part of his judgment will not be enforced." 2

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2014-MAR-04: Attorney General refuses to appeal District Court ruling. Governor announces he will appeal:

Attorney General Jack Conway (D) told reporters that:

"From a constitutional perspective, Judge Heyburn got it right, and in light of other recent federal [District Court] decisions, these laws likely will not survive on appeal. We cannot waste the resources of the office of the attorney general pursuing a case we are unlikely to win. For those who disagree, I can only say that I am doing what I think is right. In the final analysis, I had to make a decision that I could be proud of — for me now, and my daughters' judgment in the future."

State Auditor Adam Edelen (D) said:

"I think it was evident from Jack's press conference that this was a very difficult, sort of tortured decision for him. But he came to the right conclusion, and I'm proud of him. I said from the get-go that I thought the potential for winning on appeal was extraordinarily low, and that in this environment, I just don't think we ought to be paying lawyers to pursue what I think is unlikely to be the outcome that an appeal would be seeking."

Later on the same day, Governor Beshear (D) said that he plans to appeal to the U.S. 6th Circuit Court of Appeals the decision of the District Court judge that would recognize out-of-state same-sex marriages. He will hire outside lawyers to conduct the appeal. He issued a statement saying that the allowable definition of marriage:

"... will be and should be ultimately decided by the U.S. Supreme Court in order to bring finality and certainty to this matter. The people of this country need to know what the rules will be going forward. Kentucky should be a part of this process."

One of the plaintiffs' lawyers, Dan Canon, predicted that the appeal would take 12 to 18 months. He said:

"We're extremely disappointed. This is essentially a decision to waste taxpayer money defending statutes that are morally reprehensible and constitutionally doomed to fail. Every court to decide this case so far, reviewing state laws that ban recognition of same-sex marriage, has found them to be unconstitutional." 3

As of 2014-MAR-04, District Court judges in five states -- Kentucky, Oklahoma, Texas, Utah and Virginia have found state laws and state constitutional amendments that ban recognition of same-sex marriages to be unconstitutional. The decisions by federal District Courts in all five lawsuits are stayed pending appeals to U.S. Circuit Courts of Appeal. There are about a dozen additional active lawsuits attempting to legalize same-sex marriage in other states awaiting rulings by District Courts.

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2014-MAR-14: Governor asks District Court judge to extend the stay:

Leigh Gross Latherow, a private attorney, was hired by the Governor to pursue an appeal of the District Court's ruling. He filed a request with Judge John G. Heyburn asking him to extend his stay indefinitely, at least until the U.S. 6th Circuit Court of Appeals issues its ruling. That will probably be sometime in 2015.

Latherow said:

"Requiring administrative agencies to implement these rules and granting marital status recognition to same-sex couples, only to be invalidated upon reversal by the Court of Appeal will cause chaos and irreparable and real harm to all concerned, including the prevailing parties. The only way to eliminate the risk of this irreparable harm is to maintain the status quo."

Given the choice, I suspect that the plaintiffs in the case would prefer an immediate granting of marriage equality to themselves and their children. This would provide them with access to state and federal benefits and protections. If a year from now, the Court of Appeals restored them to second-class status in Kentucky, at least they would have had 12 to 18 months of equality protection. Of course, there is no evidence that the plaintiffs were asked for their opinion.

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2014-MAR-19: Judge Heyburn grants the Governor's request for a stay. Court of Appeals schedules hearing:

One day before Judge Heyburn's original stay was to be lifted, he extended it to allow the state to file an appeal with the U.S. 6th Circuit Court of Appeals. He said that it was:

"... best that these momentous changes occur with full review, rather than risk premature implementation or confusing changes. That does not serve anyone well. ... The Court has concerns about implementing an order which has dramatic effects, then having that order reversed, which is one possibility. Under such circumstances, rights once granted could be cast in doubt." 4

The stay will continue in place until the Court of Appeals cancels it -- presumably when they issue their own ruling.

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Week of 2014-JUN-15: Court of Appeals schedules hearing:

The U.S. 6th Circuit Court of Appeals has scheduled a hearing for this case on 2014-AUG-06, Similar marriage cases from Michigan, Ohio, and Tennessee will be heard together with the Kentucky case in a single session. The court has scheduled a one-hour time slot during which lawyers for the Kentucky plaintiffs and defendants will attempt to make their case. This interval may be lengthened to accommodate the Love v. Beshear lawsuit in which Judge Heyburn ruled on JUL-01 in favor of marriage by same-sex couples in Kentucky. The other states will each receive a two-hour time slot. 5

This is a very important development, because it raises the possibility that the Court of Appeals might issue its ruling in time for the U.S. Supreme Court to grant certiorari in late 2014, hear testimony in 2015-MAR, and rule in the case during late 2015-JUN. That might result in the legalization of marriage for same-sex couples across the entire country. Or it might rule against marriage and set the hope of the LGBT community for marriage equality back at least a decade. This is a high-stakes endeavor.

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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. K. Joshua Koch, "Special Statement: Bourke v. Beshear and equality across the commonwealth," Kentucky Equality Federation, 2014-FEB-14, at:
  2. "Same-sex marriage now legally recognized in Kentucky: Reaction," One News Now, 2014-FEB-27, at:
  3. John Cheves, "Beshear: Ky. will appeal federal judge's ruling in same-sex marriage case without Conway's help," Lexington Herald-Leader, 2014-MAR-04, at:
  4. Katherine Weber, "Federal Judge Grants Ky. Gov. Beshear Extended Stay in Gay Marriage Appeal," Christian Post, 2014-MAR-21, at:
  5. Andrew Wolfson, "Gay marriage cases combined, to be argued Aug. 6,"The Courier-Journal, 2014-JUN-19, 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: 2014-JUL-08
Author: B.A. Robinson
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