Same-sex marriage (SSM) in Kentucky, the bluegrass state.
From 1972 until now:
The timeline of the struggle to legalize same-
Kentucky via federal and state courts.
A brief timeline of activity:
- 1972: A same-sex couple composed of two women attempted to obtain a marriage license, were refused, and filed a lawsuit. The state Supreme Court dismissed their complaint, deciding that, on the basis of tradition, marriage is restricted to a union of one woman and one man.
- 1998: The Kentucky Legislature passed a "Defense of Marriage" law banning same-sex marriages in the state and banning legal same-sex marriages solemnized out-of-state. This was done six years before the first state -- Massachusetts -- actually legalized SSM.
2004: State voters amended the state constitution to ban SSMs, civil unions, and domestic partnerships. The plebiscite passed by a vote of 74% in favor, and 26% opposed. At the time, national polls indicated that the opposition to SSM across the U.S. was only 55%.
- 2013-JUL-26: This is exactly one month after the U.S. Supreme Court issued its ruling in v. Windsor v. United States -- the case that declared Section 3 of the federal Defense of Marriage Act unconstitutional. A gay couple, Gregory Bourke and Michael Deleon, filed a complaint in the U.S. District Court for the Western District of Kentucky. They had been together for over three decades, and had married almost a decade previously in Niagara Falls, ON, Canada. Their main goal was to have the court require the state to recognize their marriage and all other legal out-of-state marriages by other same-sex couples. District Court Judge John G. Heyburn, II was assigned to the case, which was called Bourke v. Beshear.
- 2013-AUG: Three additional plaintiff same-sex couples were added to the lawsuit. They had previously married in various U.S. states where SSMs had become available. Also named as plaintiffs are two minor children from each of two couples. The defendants were the Governor and Attorney General of Kentucky, as well as a County Clerk. They were named as defendants, not as individuals, but in their official capacity as state officials.
- 2014-FEB-12: Judge Heyburn issued a memorandum opinion for the case. He noted that state governments have the responsibility to define marriage within their borders. However, he wrote that a state cannot "impose a traditional or faith-based limitation" to marriage unless it has a sufficient justification. Dozens of other federal judges have recently said essentially the same thing elsewhere in the country when dealing with their SSM cases. However, religious and social conservatives generally hold the opinion that states can pass laws or amend their constitution to ban SSMs even if their actions violate the due process and/or equal protection clause of the 14th Amendment to the U.S. Constitution.
Judge Heyburn rejected all the reasons that the
Family Trust Foundation had provided for banning SSMs. He noted that each reason had:
"... failed rational basis review in every court to consider them post-Windsor, and most courts pre-Windsor."
- Circa 2014-FEB-13: Various conservative Christian groups, like the National Organization for Marriage and the Kentucky Baptist Convention condemned Judge Hayburn's memorandum opinion. They used phrases like: "spiraling further in to chaos," "coerced modification," "Constitution ... undermined," "religious liberty under attack," "morally depraved," etc.
- 2014-FEB-14: Judge Heyburn was expected to issue his final ruling by mid-March. The Attorney General was waiting for that ruling before deciding whether to appeal the case to the 6th U.S. Circuit Court of Appeals.
- 2014-FEB-14: Two unmarried gay couples filed a second complaint with the District Court. They were represented by the same six lawyers as are represented the plaintiffs in Bourke v. Beshear. The two couples hope to join that case with the goal of having the Court order Kentucky to marry same-sex couples within its borders.
- 2014-FEB-27: U.S. District Court Judge John Heyburn issued his final ruling legalizing recognition of out-of-state marriages by same-sex couples. He issued a short stay to allow the Attorney General to decide whether to appeal the ruling to the U.S. 6th Circuit Court of Appeals. Shortly afterwards, the name of the case (Bourke v. Beshear) was changed to "Love v. Beshear" to include the two new unmarried same-sex couples who have joined the lawsuit.
- 2014-MAR-04: The Attorney General, John Conway (D), refused to appeal the case. One reason was probably that his oath of office included a commitment to uphold the Federal Constitution and he regarded the Kentucky marriage ban as clearly violating the Federal Constitution's 14th Amendment. Governor Steve Beshear (D), whose oath of office also included a promise to uphold the Federal Constitution, disagreed with the AG. He decided to hire outside lawyers to appeal the case to the U.S. 6th Circuit Court of Appeals.
- Week of 2014-JUN-15: The U.S. 6th Circuit Court of Appeals scheduled a hearing for Love v. Beshear to be held 2014-AUG-06. Similar marriage cases from the remaining three states under the jurisdiction of the 6th Circuit Court -- Michigan, Ohio, and Tennessee -- will be heard together with the Kentucky case by the 6th Circuit in a single session. In all of these cases, the plaintiffs had based their argument on the beliefs that:
- The states' prohibitions of marriage by same-sex couples are unconstitutional because they violate the due process and/or equal protection clauses of the 14th Amendment of the U.S. Constitution, and
- The United States is a constitutional democracy in which the requirements of the federal Constitution supercede all federal laws, state laws, and state constitutions. That is, the federal Constitution is the ultimate law of the land.
These two beliefs are strongly opposed by religious and political conservatives who believe that the will of the majority in a state trumps the Federal Constitution.
- This appeal raises the possibility that the Court of Appeals might issue its ruling in the late fall, which might make it possible for the U.S. Supreme Court to grant certiorari in late 2014, hear testimony in 2015-MAR, and rule in this case and perhaps many other similar cases from other states 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. Whatever the court's decision, it is almost certain to result in a 5 to 4 vote by the court. This is a very high-stakes endeavor for the tens of millions of lesbians, gays and persons with a bisexual orientation in the U.S., along with their present and future partners and children.
On the other hand, a slight delay at the Court of Appeals level could easily delay the expected U.S. Supreme Court's decision by a year to mid-2016.
- 2014-JUL-01: U.S. District Court Judge John Heyburn issued a ruling in the aptly renamed lawsuit Love v. Beshear that legalized marriage within Kentucky by same-sex couples. He issued a stay of his ruling to allow for the State to appeal.
Thus, no same-sex couples will be able to marry in Kentucky and no same-sex couples who have been legally married out-of-state will have their marriages recognized in Kentucky unless the 6th U.S. Court of Appeals:
- Upholds the decision of the District Court, and
- Does not implement a stay in their ruling.
It appears that the ultimate decision will be made by the U.S. Supreme Court.
If the U.S. Supreme Court were to legalize marriage for same-sex couples, would the decision "stick?"
It is conceivable that even if the U.S. Supreme Court accepts the appeal from the U.S. 6th Circuit Court of Appeals -- or from one or more other Court of Appeals -- and issues a ruling that legalizes marriage by same-sex couples in at least a few states and perhaps for the entire country, their decision could be reversed by a subsequent Supreme Court ruling.
At the moment, there are five consistently conservative and four liberal Justices on the court. However, Justice Kennedy is a conservative Justice who often votes with the liberals on matters related to human rights. A few of them are in their 70's and may retire at any time. If a Republican President were elected in 2016 or if the Republican Party obtains a majority in the Senate in 2016, they will probably give a very high priority towards replacing one of the liberals on the bench with a conservative justice if an opening becomes available. A subsequent lawsuit regarding same-sex marriage could then result in the Court reversing its 2015 or 2016 decision over same-sex marriage -- probably by a 5 to 4 majority -- and denying access to marriage to same-sex couples once more in all 50 states and the District of Columbia.
However, there are competing reasons why a U.S. Supreme Court that had legalized marriage for same-sex couples might not reverse its decision even if the makeup of the court changes in a more conservative direction:
- The three previous times in the history of the United States when eligibility to marriage was defined, the change has endured. These were:
- In the 1860's, when slavery ended and former slaves were allowed the freedom to marry.
- In the early 20th century when laws prohibiting deaf couples from being able to marry were repealed by the individual states.
- In 1967, when the U.S. Supreme Court legalized interracial marriages across the U.S.
- Supreme Court Justices are concerned about the personal legacy that they will leave behind after they retire. National polls show that support by the public for marriage equality was about 25% in the mid 1990's and has risen to about 55% by mid-2014. This is an increase of about 1.5 percentage points a year. There are no signs that it is slowing down. In fact, support by older teens who will shortly be able to vote is typically in the high 70%s. If a Justice votes against marriage equality, the decision would not be highly regarded by future generations. It would probably be viewed as similar to the Bowers vs. Hardwick decision in (1986) in which the Supreme Court upheld the constitutionality of Georgia's anti-sodomy law; it was reversed by the Supreme Court in Lawrence v. Texas in 2003.
This timeline will be extended as additional events occur.
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Copyright © 2014 by Ontario Consultants on Religious Tolerance.
First posted: 2014-FEB-16 as part of the menu in this section
Latest update: 2014-JUL-09
Author: B.A. Robinson