Same-sex marriage in Kentucky

Same-sex marriage in Kentucky is legal under the U.S. Supreme Court ruling in Obergefell v. Hodges. The decision, which struck down Kentucky's statutory and constitutional bans on same-sex marriages, was handed down on June 26, 2015, and Governor Steve Beshear and Attorney General Jack Conway announced almost immediately that the court's order would be implemented.^[1]

On February 12, 2014, Judge John G. Heyburn II of the U.S. District Court for the Western District of Kentucky ruled that Kentucky must recognize same-sex marriages established in other jurisdictions. On July 1, the same judge ruled that Kentucky's denial of marriage licenses to same-sex couples violates the U.S. Constitution, but stayed the implementation of both his decisions pending appeal. The Sixth Circuit reversed both those decisions on November 6. The same-sex couples have asked the U.S. Supreme Court to review that decision.^[2] On January 16, 2015, the U.S. Supreme Court consolidated these cases with three others and agreed to review the case.^[3]

Initially, following the U.S. Supreme Court ruling, four Kentuckian counties were known to have refused (or announced they would refuse) to issue marriage licenses to same-sex couples. As of June 2016, however, all counties in Kentucky have issued same-sex marriage licenses or have announced their intention to do so.

Background

On November 9, 1973, the Kentucky Court of Appeals ruled in Jones v. Hallahan that two women were properly denied a marriage license based on dictionary definitions of marriage, despite the fact that state statutes did not restrict marriage to a female-male couple. Its decision said that "in substance, the relationship proposed ... is not a marriage."^[4][5]

Since July 15, 1998, Kentucky's statutes have defined marriage as a relationship between a man and a woman, prohibited same-sex marriage and declared it contrary to public policy, and denied recognition to same-sex marriages from other jurisdictions.^[6]

In November 2004, Kentucky voters gave Kentucky Constitutional Amendment 1 75 percent of their votes. It reads:^[7]

Only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.

Kentucky's only recognition of same-sex relationships was its extension of hospital visitation rights to same-sex couples through a designated visitor statute.^[8]

Federal lawsuits

Bourke v. Beshear

On July 26, 2013, a same-sex couple legally married in Canada filed a lawsuit in U.S. District Court for the Western District of Kentucky challenging Kentucky's refusal to recognize their marriage.^[9] Other plaintiffs were later added; the state governor and attorney general were the named defendants.^[10][11] The plaintiffs in Bourke argued that Kentucky should recognize same-sex marriages from other jurisdictions.^[12] The case was assigned to Judge John G. Heyburn II.^[10] Note : Franklin v Beshear (case # 3:13-cv-00946) initiated 06-26-13 (filed 08-16-13) included with Bourke v. Beshear.

In a decision issued February 12, 2014, Judge Heyburn found that Kentucky must recognize same-sex marriages from other jurisdictions because withholding recognition violates the U.S. Constitution's guarantee of equal protection.^[13] His final order, issued on February 27, 2014, made recognition of out-of-state same-sex marriages de jure legal; being a final order it was then immediately subject to appeal. Heyburn stayed his decision for 21 days the next day.

On March 4, Kentucky Attorney General Jack Conway announced that he would neither appeal the state's position nor request further stays. Kentucky Governor Steve Beshear said he would employ outside counsel to appeal Heyburn's ruling in Bourke to the U.S. Sixth Circuit Court of Appeals and to request a stay pending appeal.^[14][15] On March 19, Judge Heyburn extended his stay pending appeal, noting the stay granted by the U.S. Supreme Court in a similar Utah case. On the same date, defendants lodged an interlocutory appeal of Bourke in the Sixth Circuit. Oral arguments in the case were held on August 6, 2014.

Love v. Beshear

On February 14, 2014, two same-sex couples who were denied marriage licenses in Kentucky asked to be allowed to intervene in Bourke.^[16] As Judge Heyburn issued a final order in Bourke, he bifurcated the case and allowed the new plaintiffs to intervene and argue against Kentucky's denial of marriage licenses to same-sex couples. This portion of the case remained in district court, retitled as Love v. Beshear. A briefing schedule on this issue was completed by May 28.^[17][18]

On July 1, Judge Heyburn found in favor of the intervening same-sex couple plaintiffs in Love and ruled that Kentucky's ban on allowing same-sex couples to marry violates the Equal Protection Clause.^[19]

The Sixth Circuit Court of Appeals consolidated Love with Bourke v. Beshear. It heard oral arguments on August 6, the same day it heard same-sex marriage cases originating in Michigan, Ohio, and Tennessee.

Appellate decision

On November 6, the Sixth Circuit ruled 2–1 in both cases that Kentucky's ban on same-sex marriage does not violate the constitution. It said it was bound by the U.S. Supreme Court's 1972 action a similar case, Baker v. Nelson, which dismissed a same-sex couple's marriage claim "for want of a substantial federal question." Writing for the majority, Judge Jeffrey Sutton also dismissed the arguments made on behalf of same-sex couples in this case: "Not one of the plaintiffs' theories, however, makes the case for constitutionalizing the definition of marriage and for removing the issue from the place it has been since the founding: in the hands of state voters." Dissenting, Judge Martha Craig Daughtrey wrote: "Because the correct result is so obvious, one is tempted to speculate that the majority has purposefully taken the contrary position to create the circuit split regarding the legality of same-sex marriage that could prompt a grant of certiorari by the Supreme Court and an end to the uncertainty of status and the interstate chaos that the current discrepancy in state laws threatens."^[20]

The same-sex couples filed a petition for a writ of certiorari with the U.S. Supreme Court on November 17.^[2]

Supreme Court review

On January 16, 2015, the U.S. Supreme Court consolidated these cases with three others and agreed to review the case.^[3] The court ultimately decided against the states and reversed the judgment of the Sixth Circuit in Obergefell v. Hodges on June 26, 2015, requiring Kentucky to begin licensing marriages between couples of the same sex.^[1]

State lawsuits

On April 16, 2015, Kentucky Equality Federation v. Beshear (also known as Kentucky Equality Federation v. Commonwealth of Kentucky) was ruled on by Franklin County Circuit Court Judge Thomas D. Wingate. Judge Wingate sided with Kentucky Equality Federation against the Commonwealth and struck down the Kentucky Constitutional Amendment banning same-sex marriages.

At the request of Governor Steve Beshear's legal representation, the Judge also placed a stay on the order pending a ruling from a Kentucky appellate court (such as the Kentucky Court of Appeals or Kentucky's court of last resort, the Kentucky Supreme Court) or the U.S. Supreme Court.^[21][22] The lawsuit was a significant victory for the Kentucky Equality Federation and the same-sex marriage civil rights movement.

Responses to Obergefell v. Hodges

Counties issuing to all couples (blue), and refusing same-sex couples (Whitley and Casey, pink). Knott county refuses to say.

As of October 2, 2015, three counties refuse, or have not been confirmed to be ready, to issue licenses to same-sex couples. Whitley and Casey clerks claim that the First Amendment of the US Constitution or Section Five of the Kentucky Constitution protects their religious freedom to refuse to issue licenses to same-sex couples.^[24] Knott County officials refuse to state whether they would issue a license to a same sex couple but none have applied to do so.

After the Supreme Court ruling in 2015 striking down bans on same-sex marriage across the United States, David Ermold and David Moore, a same-sex couple from Morehead, Kentucky and alumni of Morehead State University, released video footage of Rowan County Clerk, Kim Davis, refusing to issue them a marriage license under "God's Authority." ^[25] The video went viral overnight, and it caused an international outrage against the actions of the county clerk. Davis refused to issue marriage licenses to all couples, heterosexual or homosexual, under the belief that it would not be considered discrimination under Kentucky and United States law. In total, six couples, four represented by the ACLU, and two couples with separate legal representation, sued Davis in her official capacity as County Clerk.^[26][27]

David Ermold and David Moore at the Little Bell Tower on the campus of Morehead State University later married after being refused a marriage license

The United States District Court for the Eastern District of Kentucky and The United States Court of Appeals for the Sixth Circuit ruled that she must issue the licenses. The U.S. Supreme Court declined to hear the matter. On August 26, 2015, a three-judge panel of the Sixth Circuit Court of Appeals upheld Judge Bunning's decision, denying Davis' request for an extension of the stay of the ruling.^[28] On August 31, 2015, the United States Supreme Court denied an emergency application from Davis to extend the stay of the ruling.^[29] The Clerk's appeal on the merits of her religious freedom argument is ongoing before the Sixth Circuit, though on September 3, 2015, Judge Bunning jailed Ms. Davis, finding her refusal to issue marriage licenses or allow her deputy clerks to do so, constituted contempt of court.^[30] The decision by U.S. District Court Judge David L. Bunning ordering Rowan County clerk Kim Davis to resume issuing marriage licenses to all couples was to go into effect August 31, 2015 or upon a ruling by the 6th Circuit Court.^[31] Beginning September 4, 2015, five of the six deputy clerks in the Rowan County Clerk's office issued marriage licenses to same-sex couples, with Davis refusing to authorize such licenses even in jail.^[32][33]

After her incarceration, marriage licenses to all couples were issued from the office of the Rowan County clerk by deputy clerks who were ordered to do so by court order. However, her son, Nathan Davis, a deputy clerk under her immediate supervision, also refused to issue marriage licenses to same-sex couples.^[34] Once Davis was released from jail, she confiscated the marriage license forms and instructed her deputy clerks to only use forms from which her name and any reference to the clerk's office had been removed. In place of the title "County Clerk" or "Deputy Clerk," which in Kentucky statute is required on the form, Davis replaced the title with "notary public." The legal status of the forms was in question.^[35] Kentucky Governor Steve Beshear ordered all county clerks to abide by the U.S. Supreme Court ruling in Obergefell v. Hodges. Governor Beshear, was asked by federal court judge David Bunning to brief the court on the validity of the altered licenses. Governor Beshear acknowledged that Kentucky would recognize the licenses being issued, but he could not verify the legality of the licenses issued or the means in which the marriage licenses were altered.^[35][36]

In Whitley County, the Whitley County clerk claimed technical issues prevented the issuing of licenses, saying licenses would be issued once difficulties were resolved. However, reports regarding Whitley County clerk Kay Schwartz's appearance at a religious rally outside the state capitol on August 22, 2015 shed new light on the reason behind the delay. Schwartz claimed that issuing the licenses violated her religious liberty. She participated in the event alongside Rowan County's Kim Davis and Casey County's Casey Davis. The event was organized by the conservative Christian group The Family Foundation.^[37]

On April 1, 2016, the Kentucky General Assembly unanimously passed a bill, SB 216, creating a single marriage license form for both same and opposite-sex couples.^[38] The bill, which had the support of Governor Matt Bevin and Rowan County clerk Kim Davis,^[39] gives a marriage license applicant the option of checking "bride", "groom" or "spouse" beside their name. (The initial version of the bill would have created two forms of marriage licenses, one using the language "bride" and "groom" and the other one using "first party" and "second party".) The name of the county clerk does not appear on the license.^[40] The state Senate passed the initial version of the bill on March 9, 37-0, but the House amended it on March 26, 97-0, and the Senate passed the amended version on April 1, 36-0.^[41][42][43] The Governor signed the bill into law on April 13, 2016.^[41][44][45] It took effect on July 14.^[46]

As of June 2016, Chris Hartmann, director of the Kentucky-based Fairness Campaign, said to his knowledge "there are no counties where marriage licenses are being denied" in his state.^[47] On 22 June 2016, when the Washington Blade reach out to Casey Davis' office over the phone, a clerk who works with Davis, replied "yes" when asked if a same-sex couple would be eligible to receive a marriage license in Casey County.^[47]

Public opinion

See also

• LGBT rights in Kentucky

Notes

External links

• Memorandum Order of the United States District Court, Western District of Kentucky, at Louisville, Bourke v. Beshear, Civil Action No. 3:13-CV-750-H, February 12, 2014