A US District Judge in Kentucky has become the latest to rule in favor of same sex marriage. But this ruling is of a different kind from those in other states that ruled that the state bans on same-sex marriage are unconstitutional, although the impact is the same.
In this ruling issued in response to a lawsuit brought by four same-sex couples married elsewhere, judge John G. Heyburn II said that the state of Kentucky could not deny recognition of marriages that had been carried out legally in other states and thus could not deny such couples all the rights and privileges of marriage. This has the same effect as overturning the bans because it means that Kentuckians who want to be married can just go to the neighboring state of Illinois that allows same-sex marriages, get married, and then return.
The decision was originally made on February 12, 2014 and released on Thursday, February 27. The judge’s ruling did not say anything about a stay of his order. The state has requested a 90-day stay of his ruling in order to appeal and a hearing was held at 2:30 pm on Friday but there is no word yet on the conclusion. I suspect that a stay will be granted.
Meanwhile, the judge has also scheduled a hearing on another case in which couples have challenged the state’s ban on issuing marriage licenses to same-sex couples and, given his ruling here, it seems likely that that ban will be overturned too.
The judge’s opinion is quite short (just 23 pages) but was a broad and sweeping one and can be read here.
I learned from the ruling that as early as 1972 two women in Kentucky had applied for a marriage license and although no formal definition of marriage existed then, the state said that it had to between a man and a woman and their request was turned down. In the wake of Hawaii’s loosening of the definition of marriage in 1993, Kentucky in 1998 passed laws formally defining marriage as between a man and a woman and denied recognition to same-sex marriages performed out of state. In 2004, following the 2003 Massachusetts Supreme Court ruling that bans on same-sex marriage violated the state constitution, Kentucky (like many other states) went even further and passed a constitutional amendment saying “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.”
In his ruling the judge said that Kentucky’s denial of recognition for valid same-sex marriages performed elsewhere violated the United States Constitution’s 14th Amendment’s guarantee of equal protection under the law, even under the most deferential standard of review that could be applied.
Unless governmental action infringes on a fundamental right or requires heightened scrutiny because the persons affected belong to a ‘suspect’ class (involving things like sex or race), the lower standard of rational basis review applies, where the government only has to show a rational basis for its actions. As the judge said,
Under this standard, the Court must determine whether these Kentucky laws are rationally related to a legitimate government purpose. Plaintiffs have the burden to prove either that there is no conceivable legitimate purpose for the law or that the means chosen to effectuate a legitimate purpose are not rationally related to that purpose.
He said that members of the LGBT community are not legally a suspect class, though there is strong reason to believe that they meet the conditions for being so. But he said that this did not matter because the ban on recognizing their marriages did not pass even the lower rational basis threshold.
The judge relied heavily on justice Kennedy’s majority opinion in United States v. Windsor (2013) that the 1996 federal Defense of Marriage Act (DOMA) that prevented the federal government from recognizing same-sex marriage performed by states “violate[d] basic due process and equal protection principles applicable to the Federal Government” and used that reasoning to conclude that Kentucky’s ban had the same flaws.
As for the arguments brought forward by the state that marriage was traditionally between a man and a woman, he ruled that the tradition alone cannot justify the infringement of civil liberties. He also said that the other arguments put forward by other parties (but not the state) such as responsible procreation and childrearing, steering naturally procreative relationships into stable unions, and promoting the optimal childrearing environment did not pass the rational review standard, for pretty much the same reasons that were given by judge Orlando Garcia on February 26 in overturning the ban on same-sex marriage in Texas.
And so the march goes on. So far, following Windsor, not a single judge has ruled against the right of same-sex couples to marry.