“I do. Even in Kentucky.” — Gay Marriage Coming to the Commonwealth

Cassandra Tackett

This month, U.S. District Judge John G. Heyburn II gave gay couples throughout the state of Kentucky an early Valentines Day present to remember. On February 12th, 2014 Heyburn issued a ruling that same-sex marriages legally performed in other states must be recognized in Kentucky.  While a small step, it is certainly a victory in a state that has been so committed to ideas of traditional marriage.

In 2004 Kentuckians had voted overwhelmingly in support of amending their state constitution to not only prevent gay marriages from occurring in the state, but to also deny recognition of same-sex marriages performed elsewhere.FN1  Four gay couples, legally married outside of Kentucky but now residing in the state, challenged the law. The plaintiffs alleged the law violated their constitutional rights under the Equal Protection Clause. Among the obvious dignitary and stigmatization concerns, they argued Kentucky’s law denied gay couples many of the same privileges that heterosexual couples enjoy, including access to the same health care and tax benefits.FN2

A recent Supreme Court case, United States v. Windsor, had dealt with the same Equal Protection issue, but left the standard of review unclear.  A higher standard of review would only be appropriate if a fundamental right were involved, or if gay individuals qualify as suspect class, issues not outright addressed in the Windsor opinion.  Heyburn then turned to the Sixth Circuit for guidance. As the Sixth Circuit has refused to recognize gay individuals as a suspect class or to recognize the right to a same-sex marriage as a fundamental right, he determined rational basis review was appropriate. Interestingly, Heyburn’s opinion reads of disapproval, suggesting a higher standard of review would likely be adopted if the Sixth Circuit were to reconsider.FN3

Despite such a deferential review to the government, the analysis turned in favor of forcing Kentucky to recognizing valid gay-marriages. Judge Heyburn ruled that these laws had no rational relation to a legitimate government purpose.  They merely treated same sex couples in a demeaning way for the purpose of upholding traditional values. He stated, “[i]n a democracy, the majority routinely enacts its own moral judgments as laws. Kentucky’s citizens have done so here.”FN4 Choosing to no longer let the majority control the freedom of others by honoring laws that arbitrarily discriminate, Kentucky thus joined the rash of states following Windsor in overturning such laws. The question still remains after Bourke v. Beshear whether gay individuals will be able to marry in Kentucky, not just have their marriages honored there, but the tone of Heyburn’s decision seems to suggest such a change is well on its way.

FN1. Matt Pearce, Gay Marriage Coming to the South? Kentucky Ruling Chips Away at Ban, Los Angelles Times (Feb. 12, 2014, 12:16 PM), http://www.latimes.com/nation/nationnow/la-na-nn-kentucky-same-sex-marriage-20140212,0,6005147.story#axzz2tETvZ9Lk, K.Y. Const. § 233A.

FN2. Bourke v. Beshear, 3:13-CV-750-H, 2014 WL 556729 at *1-3 (W.D. Ky. Feb. 12, 2014).

FN3. Id. at *4.

FN4. Id. at *6.