The lead cases on
same-sex marriage in Kentucky are ''Bourke v. Beshear'', and its companion case ''Love v. Beshear''. In ''Bourke'', a U.S. district court found that the
Equal Protection Clause requires Kentucky to recognize valid same-sex marriages from other jurisdictions.
[ In ''Love'', the same court found that this same clause renders Kentucky's ban on same-sex marriage unconstitutional.][ Both decisions were stayed and consolidated upon appeal to the ]Sixth Circuit Court of Appeals
The United States Court of Appeals for the Sixth Circuit (in case citations, 6th Cir.) is a federal court with appellate jurisdiction over the district courts in the following districts:
* Eastern District of Kentucky
* Western District of K ...
, which heard oral arguments in both cases on August 6, 2014. On November 6, the Sixth Circuit upheld Kentucky's ban on same-sex marriage.[
On January 16, 2015, the U.S. Supreme Court consolidated these cases with three others and agreed to review the case under the name '']Obergefell v. Hodges
''Obergefell v. Hodges'', ( ), is a landmark LGBT rights case in which the Supreme Court of the United States ruled that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protect ...
''. Oral arguments were heard on April 28, 2015, and the Court ruled in favor of the plaintiffs in June 2015.
District court proceedings
On July 26, 2013, Gregory Bourke and Michael DeLeon, who were legally married in Ontario
Ontario ( ; ) is one of the thirteen provinces and territories of Canada.Ontario is located in the geographic eastern half of Canada, but it has historically and politically been considered to be part of Central Canada. Located in Central C ...
, Canada, filed a lawsuit in U.S. District Court for the Western District of Kentucky challenging Kentucky's refusal to recognize their marriage on behalf of themselves and DeLeon's two adopted children. They later added as plaintiffs a couple married in Iowa and another in California, and the four children of one of them. On August 16, a fourth couple, married in Connecticut, filed a related suit in the same court but then joined the suit as plaintiffs. Named as defendants were Kentucky Governor Steve Beshear and Attorney General Jack Conway, as well as Sue Carole Perry, Shelby County Clerk. Their suit, ''Bourke v. Beshear'', argued that Kentucky should recognize same-sex marriages from other jurisdictions. The case was assigned to Judge John G. Heyburn II.
''Bourke'' decision
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
The Equal Protection Clause is part of the first section of the Fourteenth Amendment to the United States Constitution. The clause, which took effect in 1868, provides "''nor shall any State ... deny to any person within its jurisdiction the equal ...
. He wrote:
He pointed out the evolution of judicial recognition of same-sex marriage: "In ''Romer
A Reference Card or "Romer" is a device for increasing the accuracy when reading a grid reference from a map. Made from transparent plastic, paper or other materials, they are also found on most baseplate compasses. Essentially, it is a speciall ...
'', ''Lawrence
Lawrence may refer to:
Education Colleges and universities
* Lawrence Technological University, a university in Southfield, Michigan, United States
* Lawrence University, a liberal arts university in Appleton, Wisconsin, United States
Preparator ...
'', and finally, ''Windsor
Windsor may refer to:
Places Australia
* Windsor, New South Wales
** Municipality of Windsor, a former local government area
* Windsor, Queensland, a suburb of Brisbane, Queensland
**Shire of Windsor, a former local government authority around Wi ...
'', the Supreme Court has moved interstitially ... establishing the framework of cases from which district judges now draw wisdom and inspiration. Each of these small steps has led to this place and this time, where the right of same-sex spouses to the state-conferred benefits of marriage is virtually compelled."[ He told attorneys he would hold a hearing before issuing an order implementing his decision.
]
Bifurcation of case
On February 14, two same-sex couples who were denied marriage licenses in Jefferson County, Timothy Love, Lawrence Ysunza, Maurice Blanchard, and Dominique James, asked to be allowed to intervene in the suit because their challenge to Kentucky's ban on same-sex marriage within the state raises substantially the same arguments as the original suit. On February 27, 2014, before the final order was issued, the state attorney general asked Judge Heyburn to stay enforcement of his ''Bourke'' order for 90 days, noting that even if the state does not appeal the decision it needs time to implement it. Judge Heyburn issued a final order in ''Bourke'' on the same day ordering the state to recognize same-sex marriages from other jurisdictions at once, which created de jure
In law and government, ''de jure'' ( ; , "by law") describes practices that are legally recognized, regardless of whether the practice exists in reality. In contrast, ("in fact") describes situations that exist in reality, even if not legally ...
legalization of recognition of out-of-state same-sex marriages; being a final order it was then immediately subject to appeal. He then bifurcated the case and allowed the new plaintiffs to intervene and argue against Kentucky's denial of marriage licenses to in-state same-sex couples. This portion of the case would remain in district court, retitled as ''Love v. Beshear.'' A briefing schedule on the in-state issue was completed by May 28. On February 28, 2014, Judge Heyburn issued a shorter, 21-day stay in ''Bourke'', instead.
''Bourke'' appeal
On March 4, 2014, the state attorney general announced that he would neither appeal the state's position nor request further stays. Kentucky's governor said he would employ outside counsel to appeal Heyburn's ruling in ''Bourke'' to the U.S. Court of Appeals for the Sixth Circuit
The United States Court of Appeals for the Sixth Circuit (in case citations, 6th Cir.) is a federal court with appellate jurisdiction over the district courts in the following districts:
* Eastern District of Kentucky
* Western District of ...
and to request a stay pending appeal. On March 19, Judge Heyburn extended his stay pending action by the Sixth Circuit, noting the stay granted by the U.S. Supreme Court in a similar Utah case.
An interlocutory appeal
An interlocutory appeal (or interim appeal), in the law of civil procedure in the United States, occurs when a ruling by a trial court is appealed while other aspects of the case are still proceeding. Interlocutory appeals are allowed only under s ...
of ''Bourke'' was lodged in the Sixth Circuit on March 19 under appellate case number 14-5291. By the time oral arguments were scheduled, the decision in the companion case ''Love v. Beshear'' was handed down and appealed; the Sixth Circuit thus consolidated the cases for argument (see below).
''Love'' decision
The addition of intervening plaintiffs the ''Bourke'' lawsuit (dealing with the recognition of out-of-state same-sex marriages, see above) on the related issue of denial of marriage licenses to in-state same-sex couples, required the court to bifurcate the case and restyle it. ''Love v. Beshear'' continued in district court as to the state marriage license issue, while the out-of-state recognition issue was appealed.
On July 1, 2014, U.S. District Judge John G. Heyburn II found in favor of the intervening same-sex couple plaintiffs and ruled that Kentucky's ban on allowing same-sex marriage in-state violates the Equal Protection Clause.
In doing so, Judge Heyburn departs from the opinions issued by most of the other U.S. district courts that examined the issue; he "does not determine whether Kentucky's laws interfere with a fundamental right
Fundamental rights are a group of rights that have been recognized by a high degree of protection from encroachment. These rights are specifically identified in a constitution, or have been found under due process of law. The United Nations' Sustai ...
." Looking at the trio of marriage cases of '' Loving v. Virginia'', '' Zablocki v. Redhail'', and '' Turner v. Safley''; Judge Heyburn states that: He is hesitant to answer in the affirmative, reasoning that "holding that the fundamental right to marry encompasses same-sex marriage would be a ''dramatic step'' that the Supreme Court has not yet indicated a willingness to take" (emphasis added.)
Judge Heyburn then notes that he can bypass answering this question. Instead, the judge finds that homosexual persons constitute a suspect class. Although Sixth Circuit precedent suggests that sexual orientation classifications do not receive heightened scrutiny
Intermediate scrutiny, in U.S. constitutional law, is the second level of deciding issues using judicial review. The other levels are typically referred to as rational basis review (least rigorous) and strict scrutiny (most rigorous).
In order t ...
, Heyburn prods the circuit court "to reconsider its view" as this precedent relied on ''Bowers v. Hardwick
''Bowers v. Hardwick'', 478 U.S. 186 (1986), was a landmark decision of the U.S. Supreme Court that upheld, in a 5–4 ruling, the constitutionality of a Georgia sodomy law criminalizing oral and anal sex in private between consenting adults ...
'', a Supreme Court case subsequently overturned as "not correct when it was decided, and it is not correct today." (citing ''Lawrence v. Texas
''Lawrence v. Texas'', 539 U.S. 558 (2003), is a landmark decision of the U.S. Supreme Court in which the Court ruled that most sanctions of criminal punishment for consensual, adult non- procreative sexual activity (commonly referred to as so ...
'', 539 U.S. 558 at 575) He does the analysis required and finds the heightened scrutiny of a "quasi-suspect" class applies to the case; but even under the lower "rational basis
In U.S. constitutional law, rational basis review is the normal standard of review that courts apply when considering constitutional questions, including due process or equal protection questions under the Fifth Amendment or Fourteenth Amendmen ...
" review, the state does not bear its burden in justifying exclusion of same-sex couples from marriage. Heyburn concludes that the defendants' arguments for exclusion, i.e. encouraging relationships that procreate and stabilize the birthrate
The birth rate for a given period is the total number of live human births per 1,000 population divided by the length of the period in years. The number of live births is normally taken from a universal registration system for births; populati ...
, "are not those of serious people," finding no relation between same-sex marriage and heterosexual procreation.[''Love v. Beshear'', ]
Judge Heyburn stayed his ruling in ''Love'' pending the outcome of any appeal.
Court of Appeals proceedings
Upon motion
In physics, motion is the phenomenon in which an object changes its position with respect to time. Motion is mathematically described in terms of displacement, distance, velocity, acceleration, speed and frame of reference to an observer and m ...
of appellee same-sex couples, the U.S. Sixth Circuit Court of Appeals consolidated ''Love v. Beshear'', now docketed 14-5818 on appeal, and dealing with in-state licensing of same-sex marriage — with ''Bourke v. Beshear'', already under appeal under docket 14-5291, and dealing with out-of-state same-sex marriage recognition. A July 16, 2014, order by the Sixth Circuit set an expedited briefing schedule: state appellants' opening brief due July 17, appellee same-sex couples' principal brief due July 24, and appellants' reply due July 31.
Oral arguments for the consolidated ''Love'' and ''Bourke'' cases were held on August 6, 2014; the Sixth Circuit heard same-sex marriage cases stemming from Michigan, Ohio, Kentucky and Tennessee on that date as well.
Reversal
On November 6, the Sixth Circuit ruled 2–1 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 in 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."
Supreme Court proceedings
The same-sex couples filed an application for certiorari with the U.S. Supreme Court on November 17. On January 16, 2015, the United States Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
consolidated this case with three others from Michigan, Ohio, Kentucky, and Tennessee and agreed to review the case, setting a briefing schedule to be completed April 17. The court asked the parties to address two questions: "1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?"
This case was combined with several others and became part of the ''Obergefell v. Hodges
''Obergefell v. Hodges'', ( ), is a landmark LGBT rights case in which the Supreme Court of the United States ruled that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protect ...
'' case which was decided June 26, 2015 by the U.S. Supreme Court in a 5–4 decision that: "The Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state."
See also
* LGBT rights in Kentucky
* Same-sex marriage in Kentucky
* Same-sex marriage in the United States
References
External links
''Bourke v. Beshear'', No. 14-574: U.S. Supreme Court official Docket entry
* {{caselaw source
, case = ''Bourke v. Beshear'', 996 F. Supp. 2d
The ''Federal Supplement'' ( is a case law reporter published by West Publishing in the United States that includes select opinions of the United States district courts since 1932, and is part of the National Reporter System. Although the ''F ...
542 ( W.D. Ky. 2014)
, leagle =https://www.leagle.com/decision/infdco20140213a85
, other_source1 = Slip opinion
, other_url1 =https://freemarry.3cdn.net/a451e58ab634d16ae9_gxm6i6uxk.pdf
Sixth Circuit Court of Appeals, ''Bourke v. Beshear'', November 6, 2014
Legal history of Kentucky
United States same-sex union case law
LGBT in Kentucky
2014 in United States case law
2014 in Kentucky
United States Supreme Court cases
United States Supreme Court cases of the Roberts Court
2014 in LGBT history