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Judge Heyburn issues final order recognizing same-sex marriages, but Kentucky could still get a stay

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Same-sex marriage case defendant Greg Bourke, center, surrounded by his legal team from Clay, Daniel, Walton and Adams.

For the moment, it’s Kentucky law – the state must recognize same-sex marriages from jurisdictions in the United States where they are legal.

U.S. District Judge John Heyburn II has entered a final order in Bourke v. Beshear, the groundbreaking same-sex marriage case, making his ruling earlier this month law.

In that ruling, Heyburn wrote, ” …. the Court concludes that Kentucky’s denial of recognition for valid same sex marriages violates the United States Constitution’s guarantee of equal protection under the law, even under the most deferential standard of review.”

However, it’s possible the state could still ask Heyburn for a stay under which the courts would not enforce the law.

The judge held a hearing yesterday on various motions pending on the ruling, according to Dan Canon, an attorney at Louisville-based Clay, Daniel, Walton and Adams, the firm that successfully represented the four couples in Bourke v. Beshear.

Heyburn allowed a second leg of the case to go forward, a leg that could lead to legalization of same-sex marriage in Kentucky. Heyburn will rule sometime in the next few months as to whether the state has to issue a marriage licenses to same-sex couples.

At the same time, the judge entered the final order in the portion of the case recognizing out-of-state same-sex marriages, an order that went into affect today, Canon said.

During the hearing, Heyburn asked officials from the attorney general’s office if they were a requesting a stay recognizing same-sex marriages. But Deputy Attorney General Clay Barkley said he didn’t have the authority to commit to a stay, Canon said.

Today, about two hours ago, the attorney general’s office did make a motion for a stay. The judge has not ruled on the motion, but entered the final order.

“There is a final order; there is no stay as of right now,” Canon said.

But a stay is still possible, he added.

A hearing on the stay may be held as early as tomorrow.

Heyburn’s rulings ultimately could re-write civil law in the commonwealth, from wills and health care to adoption and divorce.

Editor’s note: Clay Daniel attorneys filed the suit on behalf of Gregory Bourke and Michael Deleon of Louisville, who were married Canada in 2004; Jimmy Meade and Luther Barlowe, of Bardstown, who were married in Davenport, Iowa, in 2009; Randell Johnson and Paul Campion of Louisville, who were married in Riverside, Calif., in 2008; and Kimberly Franklin and Tamera Boyd of Cropper, Ky. They were married in Stratford, Conn., in 2010.

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