(Story updated with additional reporting at 4 p.m. Due to reporter error, the original version misspelled Laura Landenwich’s name.)
Will the floodgates open?
Following a ruling by U.S. District Judge John Heyburn II striking down Kentucky’s ban on recognizing same-sex marriages, one of the plaintiffs hopes that’s exactly what happens.
“I hope people show up at the county clerk’s office tomorrow to get their marriage licenses,” said Greg Bourke, who’s been fighting legally for this moment for 32 years with his spouse, Michael Deleon.
But legal questions remain about the ruling, as do questions about whether Kentucky Attorney General Jack Conway will file an appeal with the U.S. Court of Appeals for the Sixth Circuit, putting it in front of a three-judge panel. A spokesman said Conway is reviewing the ruling, according to media reports.
If Conway chooses not to appeal, Heyburn’s ruling will stand, said Dan Canon, an attorney at Louisville-based Clay, Daniel, Walton and Adams, the firm that represented the four couples who are the plaintiffs.
In his 23-page opinion, Heyburn stated he’s not trying to impose a political or policy judgment on the state, but he finds that Kentucky’s law violates the Equal Protection Clause of the United States Constitution. His ruling simply states Kentucky must recognize same-sex marriages from jurisdictions where they are legal: “In the end, 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.”
Putting aside whether Heyburn’s ruling paves the way for same-sex marriages in Kentucky, it could ultimately touch every facet of civil law in the commonwealth, from wills and health care to adoption and divorce.
The attorneys representing the couples liken the ruling to the civil rights rulings of the 1960s allowing African-Americans to vote, to attend white schools and to marry outside their race.
“It’s huge. It’s huge. It’s huge,” said an emotional Laura Landenwich, part of the team of attorneys. “It’s equivalent to the ban on different races being able to marry. It’s completely the equivalent to that.”
The ruling also may have financial and economic ramifications, forcing the state and businesses operating in Kentucky to extend insurance and tax status and adoption rights to same-sex couples. Greg Bourke noted that being able to file as a married person will mean getting back $3,000 more on his federal income tax filing then when he was classified as “single.”
But Canon stressed no one will know the full impact until state officials respond.
“Here’s what we know about this, and obviously, the opinion has just come out …. The judge has not issued the final order on this as yet. But we know the practical effect of this decision will be that same-sex couples who are married outside of Kentucky can come to Kentucky and have their marriages recognized.
“Kentucky no longer has the right to treat those same-sex couples as second-class citizens. They must recognize their marriages as being lawful, valid marriages under Kentucky law.”
And though Landenwich believes the state denying Kentucky couples the right to marry also is unconstitutional, she said, “That’s a little bit outside the scope of this opinion. So, we’re not sure what the executive branch is going to do with that now that we know (Kentucky law) fails constitutional muster.”
In 2004, Kentucky voters overwhelmingly approved a constitutional amendment outlawing same-sex marriages and civil unions.
“In our way of thinking, those provisions should no longer be enforced,” Canon said. “But we don’t know if the commonwealth of Kentucky is going to try to enforce them.”
If state officials continue to enforce Kentucky’s constitutional prohibition on recognizing those unions, there is no mechanism that would penalize the state.
Clay Daniel attorney Joe Dunman noted that Heyburn has not yet issued a final order; he has set aside a hearing during which all sides of the case will discuss the effect of the order.
The conservative Family Foundation of Kentucky fought the legislation, and the group’s senior policy analyst Martin Cothran stated in a news release that Heyburn’s ruling takes away the right of Kentucky to set its own definition of marriage.
The ruling already has set off a political contretemps, with both sides of the issue weighing in.
U.S. Rep. John Yarmuth, D-3rd, issued this statement immediately after the ruling:
I am proud of the four Kentucky families who are standing up for marriage equality in this lawsuit and of the thousands more who continue this fight every day. Today’s ruling is an important step forward in the march toward recognition of all marriages under the law and full equality in our Commonwealth.
Louisville businessman Matt Bevin, the conservative Republican senate candidate running against Sen. Mitch McConnell, issued this statement:
I’m deeply disappointed in Judge Heyburn’s decision to overturn Kentucky’s right to determine the definition of marriage within its own borders. This type of judicial activism hurts America’s democratic process.
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.