Same-sex marriage in Kentucky

Same-sex marriage in the U.S. state of Kentucky is legal under the U.S. Supreme Court ruling in Obergefell v. Hodges. The decision, which struck down Kentucky's statutory and constitutional bans on same-sex marriages, was handed down on June 26, 2015, and Governor Steve Beshear and Attorney General Jack Conway announced almost immediately that the court's order would be implemented.[1]

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On February 12, 2014, Judge John G. Heyburn II of the U.S. District Court for the Western District of Kentucky ruled that Kentucky must recognize same-sex marriages established in other jurisdictions. On July 1, the same judge ruled that Kentucky's denial of marriage licenses to same-sex couples violates the U.S. Constitution, but stayed the implementation of both his decisions pending appeal. The Sixth Circuit reversed both those decisions on November 6. The same-sex couples had asked the U.S. Supreme Court to review that decision.[2] On January 16, 2015, the U.S. Supreme Court consolidated these cases with three others and agreed to review the case.[3]

Initially, following the U.S. Supreme Court ruling, four Kentuckian counties were known to have refused (or announced they would refuse) to issue marriage licenses to same-sex couples. As of June 2016, however, all counties in Kentucky have issued same-sex marriage licenses or have announced their intention to do so.

Background

On November 9, 1973, the Kentucky Court of Appeals ruled in Jones v. Hallahan that two women were properly denied a marriage license based on dictionary definitions of marriage, despite the fact that state statutes did not restrict marriage to a female-male couple. Its decision said that "in substance, the relationship proposed ... is not a marriage."[4][5]

Since July 15, 1998, Kentucky's statutes have defined marriage as a relationship between a man and a woman, prohibited same-sex marriage and declared it contrary to public policy, and denied recognition to same-sex marriages from other jurisdictions.[6]

In November 2004, Kentucky voters gave Kentucky Constitutional Amendment 1 75% of their votes. It reads:[7]

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.

Kentucky's only recognition of same-sex relationships was its extension of hospital visitation rights to same-sex couples through a designated visitor statute.[8]

Federal lawsuits

Bourke v. Beshear
Main article: Bourke v. Beshear

On July 26, 2013, a same-sex couple legally married in Canada filed a lawsuit in U.S. District Court for the Western District of Kentucky challenging Kentucky's refusal to recognize their marriage.[9] That case was filed by the Fauver Law Office. Three other married same-gender couples, and their children, were later added as Plaintiffs; the State Governor and Attorney General were the named defendants.[10][11] The plaintiffs in Bourke argued that Kentucky should recognize same-sex marriages from other jurisdictions.[12] The case was assigned to Judge John G. Heyburn II.[10]

In a decision issued on 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.[13] His final order, issued on February 27, 2014, made recognition of out-of-state same-sex marriages de jure legal; being a final order it was then immediately subject to appeal. Heyburn stayed his decision for 21 days the next day.

On March 4, Kentucky Attorney General Jack Conway announced that he would neither appeal the state's position nor request further stays. Kentucky Governor Steve Beshear said he would employ outside counsel to appeal Heyburn's ruling in Bourke to the U.S. Sixth Circuit Court of Appeals and to request a stay pending appeal.[14][15] On March 19, Judge Heyburn extended his stay pending appeal, noting the stay granted by the U.S. Supreme Court in a similar Utah case. On the same date, defendants lodged an interlocutory appeal of Bourke in the Sixth Circuit. Oral arguments in the case were held on August 6, 2014.

Love v. Beshear

On February 14, 2014, two same-sex couples who were denied marriage licenses in Kentucky asked to be allowed to intervene in Bourke.[16] As Judge Heyburn issued a final order in Bourke, he bifurcated the case and allowed the new plaintiffs to intervene and argue against Kentucky's denial of marriage licenses to same-sex couples. This portion of the case remained in district court, retitled as Love v. Beshear. A briefing schedule on this issue was completed by May 28.[17][18]

On July 1, Judge Heyburn found in favor of the intervening same-sex couple plaintiffs in Love and ruled that Kentucky's ban on allowing same-sex couples to marry violated the Equal Protection Clause.[19]

The Sixth Circuit Court of Appeals consolidated Love with Bourke v. Beshear. It heard oral arguments on August 6, the same day it heard same-sex marriage cases originating in Michigan, Ohio, and Tennessee.

Appellate decision

On November 6, the Sixth Circuit ruled 2–1 in both cases 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 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."[20]

The same-sex couples filed a petition for a writ of certiorari with the U.S. Supreme Court on November 17.[2]

Supreme Court review
See also: Obergefell v. Hodges

On January 16, 2015, the U.S. Supreme Court consolidated these cases with three others and agreed to review the case.[3] The court ultimately decided against the states and reversed the judgment of the Sixth Circuit in Obergefell v. Hodges on June 26, 2015, requiring all States to begin licensing marriages between couples of the same-sex.[1]

State lawsuits

On April 16, 2015, Kentucky Equality Federation v. Beshear (also known as Kentucky Equality Federation v. Commonwealth of Kentucky) was ruled on by Franklin County Circuit Court Judge Thomas D. Wingate. Judge Wingate sided with Kentucky Equality Federation against the Commonwealth.

.

At the request of Governor Steve Beshear's legal representation, the Judge also placed a stay on the order pending a ruling from a Kentucky appellate court (such as the Kentucky Court of Appeals or Kentucky's court of last resort, the Kentucky Supreme Court) or the U.S. Supreme Court.[21][22] The lawsuit was a significant victory for the Kentucky Equality Federation However, the ruling was moot, as the U.S. Supreme Court has already ruled on these matters.


"Kentucky's statutory and constitutional bans on same-sex marriage void and unenforceable for violating Plaintiff and Plaintiff's Members Constitutional Rights", ruled Judge Wingate.[23]

Responses to Obergefell v. Hodges

After the Supreme Court ruling in 2015 striking down bans on same-sex marriage across the United States, David Ermold and David Moore, a same-sex couple from Morehead, Kentucky and alumni of Morehead State University, released video footage of Rowan County Clerk, Kim Davis, refusing to issue them a marriage license under "God's Authority."[24] The video went viral overnight, and it caused an international outrage against the actions of the county clerk. Davis refused to issue marriage licenses to all couples, opposite-sex or same-sex, in the belief that it would not be considered discrimination under Kentucky and United States law. In total, six couples, four represented by the ACLU, and two couples with separate legal representation, sued Davis in her official capacity as County Clerk.[25][26]

David Ermold and David Moore at the Little Bell Tower on the campus of Morehead State University later married after being refused a marriage license.

The United States District Court for the Eastern District of Kentucky and The United States Court of Appeals for the Sixth Circuit ruled that she must issue the licenses. The U.S. Supreme Court declined to hear the matter. On August 26, 2015, a three-judge panel of the Sixth Circuit Court of Appeals upheld Judge Bunning's decision, denying Davis' request for an extension of the stay of the ruling.[27] On August 31, 2015, the United States Supreme Court denied an emergency application from Davis to extend the stay of the ruling.[28] The Clerk's appeal on the merits of her religious freedom argument went before the Sixth Circuit, though on September 3, 2015, Judge Bunning jailed Ms. Davis, finding her refusal to issue marriage licenses or allow her deputy clerks to do so, constituted contempt of court.[29] The decision by U.S. District Court Judge David L. Bunning ordering Rowan County clerk Kim Davis to resume issuing marriage licenses to all couples was to go into effect on August 31, 2015 or upon a ruling by the 6th Circuit Court.[30] Beginning on September 4, 2015, five of the six deputy clerks in the Rowan County Clerk's office began issuing marriage licenses to couples, with Davis refusing to authorize such licenses even in jail.[31][32]

After her incarceration, marriage licenses to all couples were issued from the office of the Rowan County clerk by deputy clerks who were ordered to do so by court order. However, her son, Nathan Davis, a deputy clerk under her immediate supervision, also refused to issue marriage licenses to same-sex couples.[33] Once Davis was released from jail, she confiscated the marriage license forms and instructed her deputy clerks to only use forms from which her name and any reference to the clerk's office had been removed. In place of the title "County Clerk" or "Deputy Clerk," which in Kentucky statute was required on the form, Davis replaced the title with "notary public."[34] Subsequently, Kentucky Governor Steve Beshear ordered all county clerks to abide by the U.S. Supreme Court ruling in Obergefell v. Hodges. Governor Beshear was asked by federal court Judge David Bunning to brief the court on the validity of the altered licenses. Governor Beshear acknowledged that Kentucky would recognize the licenses being issued, but he could not verify the legality of the licenses issued or the means in which the marriage licenses were altered.[34][35]

As of October 2, 2015, three counties were refusing or had not been confirmed to be ready, to issue licenses to same-sex couples. Whitley and Casey clerks claimed that the First Amendment of the U.S. Constitution or Section Five of the Kentucky Constitution protects their religious freedom to refuse to issue licenses to same-sex couples.[36] Knott County officials refused to state whether they would issue a license to a same-sex couple but none had applied to do so. In Whitley County, the Whitley County clerk claimed technical issues prevented the issuing of licenses, saying licenses would be issued once difficulties were resolved. However, reports regarding Whitley County clerk Kay Schwartz's appearance at a religious rally outside the state capitol on August 22, 2015 shed new light on the reason behind the delay. Schwartz claimed that issuing the licenses violated her religious liberty. She participated in the event alongside Rowan County's Kim Davis and Casey County's Casey Davis. The event was organized by the conservative Christian group, The Family Foundation.[37]

On April 1, 2016, the Kentucky General Assembly unanimously passed a bill, SB 216, creating a single marriage license form for both same and opposite-sex couples.[38] The bill, which had the support of Governor Matt Bevin and Rowan County clerk Kim Davis,[39] gives a marriage license applicant the option of checking "bride", "groom" or "spouse" beside their name. (The initial version of the bill would have created two forms of marriage licenses, one using the language "bride" and "groom" and the other one using "first party" and "second party".) The name of the county clerk does not appear on the license.[40] The state Senate passed the initial version of the bill on March 9, 37-0, but the House amended it on March 26, 97-0, and the Senate passed the amended version on April 1, 36-0.[41][42][43] The Governor signed the bill into law on April 13, 2016.[41][44] It took effect on July 14.[45]

As of June 2016, Chris Hartmann, director of the Kentucky-based Fairness Campaign, said to his knowledge "there are no counties where marriage licenses are being denied to same-sex couples" in the state.[46] On 22 June 2016, when the Washington Blade reach out to Casey Davis' office over the phone, a clerk who works with Davis, replied "yes" when asked if a same-sex couple would be eligible to receive a marriage license in Casey County.[46]

In July 2017, a federal court judge ruled that Kentucky must pay legal fees and court costs (nearly $225,000) to the lawyers who represented the couples who were denied marriage licenses.[47]

In November 2017, Davis announced that she is seeking re-election as county clerk. David Ermold, to whom she denied a marriage license in 2015, announced his intention to run against her.[48]

Public opinion
Public opinion for same-sex marriage in Kentucky
Poll source Date(s)
administered		 Sample
size		 Margin of
error		 % support % opposition % no opinion
Public Religion Research Institute April 5-December 23, 2017 1,017 ? 51% 42% 7%
Public Religion Research Institute May 18, 2016-January 10, 2017 1,463 ? 49% 42% 9%
Public Religion Research Institute April 29, 2015-January 7, 2016 1,289 ? 45% 47% 8%
Survey USA March 3, 2015 – March 8, 2015 1,917 registered voters ± 2.3% 33% 57% 10%
New York Times/CBS News/YouGov September 20 – October 1, 2014 1,689 likely voters ± 2.8% 38% 50% 13%
Public Policy Polling August 7–10, 2014 991 voters ± 3.1% 30% 61% 9%
Bluegrass Poll July 18–23, 2014 714 registered voters ± 3.7% 37% 50% 12%
New York Times/Kaiser Family Foundation April 8–15, 2014 891 registered voters ? 38% 54% 8%
Bluegrass Poll January 30 – February 4, 2014 1,082 registered voters ± 3% 35% 55% 10%
Public Policy Polling April 11, 2013 ? ? 27% 65% 8%
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See also

Notes
  1. Wolfson, Andrew (June 26, 2015). "Ky. moves quickly to adopt gay marriage ruling". The Courier-Journal. Retrieved June 26, 2015.
  2. "Kentucky Plaintiffs' Cert Petition". Scribd.com. Retrieved November 17, 2014.
  3. "Miscellaneous Order (01/16/2015) - Certiorari Granted" (PDF). Supreme Court of the United States. January 26, 2015. Retrieved July 28, 2015. Cite journal requires |journal= (help)
  4. Cantor, Donald J.; et al. (2006). Same-Sex Marriage: The Legal and Psychological Evolution in America. Middletown, CT, USA: Wesleyan University Press. pp. 117–8. Kentucky Court of Appeals: Jones v. Callahan, November 9, 1973
  5. Barbara J. Cox, "Same-Sex Marriage and Choice-of-Law: If We Marry in Hawaii, Are We Still Married When We Return Home?", in Wisconsin Law Review, 1994, 179ff., available online, accessed March 9, 2014
  6. "Current Kentucky Laws". Marriage Equality Kentucky. Retrieved March 9, 2014.
  7. CNN: 2004 Ballot Measures, accessed April 13, 2011
  8. "Hospital Visitation Laws" (PDF). Hrc.org. Archived from the original (PDF) on July 29, 2014. Retrieved July 17, 2014.
  9. "First lawsuit filed against Ky. same-sex marriage ban". WLKY. July 26, 2013. Retrieved July 26, 2013.
  10. "Federal Judge Weighing Challenge to Kentucky Gay Marriage Ban". Edge on the Net. January 15, 2014.
  11. "Judge Weighing Challenge To Ky. Gay Marriage Ban". LEX18. January 15, 2014. Archived from the original on January 17, 2014. Retrieved January 16, 2014.
  12. "Couple challenges Kentucky law against gay marriage". USA Today. July 26, 2013. Retrieved January 16, 2014.
  13. Wolfson, Andrew (February 12, 2014). "Kentucky ban on gay marriages from other states struck down by federal judge". Louisville Courier-Journal. Retrieved February 12, 2014.
  14. Cheves, John (March 4, 2014). "Beshear: Ky. will appeal federal judge's ruling in same-sex marriage case without Conway". Lexington Herald-Leader. Retrieved March 4, 2014.
  15. Geidner, Chris (March 4, 2014). "Kentucky Governor To Appeal Marriage Recognition Ruling After State's Attorney General Decides Not To Appeal". Buzz Feed. Retrieved March 4, 2014.
  16. Wolfson, Andrew (February 14, 2014). "Couples ask judge to allow gay marriage in Kentucky". Louisville Courier-Journal. Retrieved February 18, 2014.
  17. Cheves, John (February 26, 2014). "Judge: Final order requiring Ky. to recognize same-sex marriages expected Thursday". Lexington Herald Leader. Retrieved February 27, 2014.
  18. Thomaston, Scottie (February 28, 2014). "Kentucky marriage equality case re-named Love v. Beshear". Equality on Trial. Retrieved February 28, 2014.
  19. Geidner, Chris (July 1, 2014). "Federal Judge Strikes Down Kentucky Same-Sex Marriage Ban". BuzzFeed. Retrieved August 23, 2014.
  20. Geidner, Chris (November 6, 2014). "Federal Appeals Court Upholds Four States' Same-Sex Marriage Bans". BuzzFeed News. Retrieved November 6, 2014.
  21. Loftus, Tom (April 16, 2015). "Kentucky judge rules against gay marriage ban". The Courier-Journal. Retrieved July 14, 2015.
  22. "Kentucky Judge rules in favor of Kentucky Equality Federation and gay marriage". Kentucky Equality Federation Official Facebook Page. April 16, 2015. Retrieved July 14, 2015.
  23. "Kentucky Circuit Judge rules in favor of Kentucky Equality Federation" (Press release). Kentucky Equality Federation. September 12, 2013. Retrieved July 14, 2015.
  24. Denied marriage license in Morehead, KY - Rowan County
  25. Ermold et al v. Davis et al
  26. Miller et al v. Davis et al
  27. Mike Wynn (August 26, 2015). "Kentucky's Rowan County gay marriage licenses upheld on appeal". Indy Star.
  28. Denniston, Lyle. "Kentucky clerk loses on same-sex marriage plea". SCOTUSBlog.
  29. "Kentucky clerk jailed for defying court orders on gay marriage". BBC. September 3, 2015.
  30. "Marriage ruling for Kentucky clerk to expire soon". Associated Press. LGBTQ Nation. August 19, 2015.
  31. "'Holdout' Kentucky county issues gay marriage licences". BBC News. September 4, 2015.
  32. Muskal, Michael (September 3, 2015). "Deputy clerks in Kentucky say yes to same-sex marriage licenses but their boss says no". LA Times.
  33. Kim Davis' son Nathan refuses to issue same-sex marriage licenses in Kentucky after mother is jailed
  34. HOW KENTUCKY CLERK KIM DAVIS ALTERED MARRIAGE LICENSES
  35. Marriage licenses altered by Kim Davis are valid, Beshear tells judge
  36. Phinney, Sarah (August 17, 2015). "2 Ky. county clerks still fighting same-sex marriage despite Supreme Court ruling, lawsuit". WDRB. Retrieved August 23, 2015.
  37. Brammer, Jack (August 22, 2015). "Two rallies in Frankfort represent two sides of same-sex marriage debate". Lexington Herald-Leader. Retrieved August 23, 2015.
  38. SB 216 Text
  39. "Kim Davis is against Kentucky's 'segregated' same-sex marriage law". LGBT Nation. February 29, 2016.
  40. "Kentucky House approves creation of marriage license accommodating same-sex couples". The Raw Story. March 25, 2016.
  41. "SB216". Kentucky Legislature. Retrieved April 10, 2016.
  42. "SB216: AN ACT relating to the Uniform Interstate Family Support Act: Voting Record" (PDF). Kentucky Legislature. Retrieved July 18, 2016.
  43. "Kentucky lawmakers pass bill for 1 marriage license form". LGBT Nation. April 2, 2016.
  44. KY SB216 | 2016 | Regular Session
  45. #AM_Equality Tip Sheet: July 14, 2016 KENTUCKY ROLLS OUT NEW MARRIAGE LICENSES
  46. "One year after marriage ruling, pockets of defiance remain". Washington Blade: Gay News, Politics, LGBT Rights. June 22, 2016. Retrieved July 17, 2016.
  47. State of Kentucky must pay nearly $225,000 in legal fees for Kim Davis case
  48. Kim Davis Rejected His Same-Sex Marriage License; Now Kentucky Dem Wants Her Job
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