By Zac Losey
On Feb. 12, U.S. District Judge John G. Heyburn II issued a 23-page ruling concluding that Kentucky must recognize same-sex marriages. The ruling does not allow marriages to be performed within the state, but does ban Kentucky from treating “gay and lesbian persons in a way that demeans them,” and would require the state to recognize same-sex marriages performed outside of the state in the same manner as any other.
In his decision, Heyburn stated that while states may define marriage and tether certain benefits to it, they cannot “impose a traditional or faith-based limitation” as doing so would be a violation of the Establishment Clause. The George H.W. Bush appointee stated that, “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 preliminary order struck portions of a 1998 Kentucky state law, as well as a 2004 constitutional amendment that defined marriage as “between one man and one woman” and prohibited the recognition of same-sex marriages from states and countries where they are legal. Heyburn wrote that the Fourteenth Amendment to the U.S. Constitution guarantees same-sex couples equal protection under the law amongst the states, and thus Kentucky is not permitted to deny fundamental rights such as marriage.
Initially, Jack Conway, the Kentucky Attorney General, sought for a 90-day delay on the ruling, while he reviews whether or not to appeal the ruling and prepares the state to implement it. Hours after he filed for the stay, Heyburn issued a final order that directs Kentucky officials to recognize same-sex marriages that were performed out of state. Heyburn’s final order does include a 20-day postponement of his initial ruling taking effect, though he had initially indicated there would be no such a delay.
In explaining the reasons for wanting to deny delay in its implementation, Heyburn has said there could be much confusion for Kentuckians who move quickly to gain the legal benefits from a same-sex marriage if the state decides to appeal a month later, thus calling the final implementation of the order into question. However, Kentucky state officials now have 20 days to figure out how to best implement his order.
While the judge recognized that this stay extends a policy that is unconstitutional, it allows the state “proper time to administratively prepare for compliance.” This postponement came after a hearing in which the attorney general’s office explained it needed time to meet with various state agencies to review what laws are going to be affected, thus allowing localities to implement the order with efficiency and consistency. The order is currently on hold until Mar. 20
Since then, Conway has made clear that he will not challenge the judge’s order, though the attorney general’s office had been representing the state in the case.
Conway explained, “Kentucky’s same-sex marriage ban discriminated against a minority and is doomed to fall, so the state shouldn’t squander its limited resources trying to save it,” reports Kentucky.com.
Naturally, there have been strong reactions from those on both sides of the issue. As expected in such a socially conservative state, uproar against the ruling has been swift and many religious/conservative groups have urged Gov. Beshear and the attorney general to appeal the final order. An attorney for the Family Foundation of Kentucky, a strongly conservative and religious lobbying organization, stated that, “In 2004, the question was put before the Kentucky voters, who overwhelmingly approved the definition of traditional marriage between a man and a woman. Obviously that was a recent action by Kentucky voters and we intend to defend the expression of that sentiment.”
Gov. Beshear announced Tuesday, Mar. 4 that he will appeal the federal judge’s ruling in the same-sex marriage case without Conway’s help. Kentucky.com reports that Beshear will spend $125 per hour on private lawyers to pursue Kentucky’s appeal.
An attorney for the plaintiffs who sued the state for the right to have their same-sex marriages from outside the state recognized has stated the delay is going to cause unnecessary harm. In an interview, she stated that, “The state already knows how to treat married couples, and all it has to do is treat these couples like married couples.”
Neither the initial ruling nor the final order will affect a separate lawsuit that is attempting to force Kentucky to issue state marriage licenses to same-sex couples. Two same-sex couples are awaiting a final ruling from Heyburn on this issue, now complicated by the Governor’s appeal, but a decision is not expected for some months.