Kentucky ban on gay marriages from other states struck down by federal judge

Greg Bourke, right, and Michael Deleon have filed a federal lawsuit asking for Kentucky to recognize same sex marriages. July 26, 2013 / Scott Utterback/The Courier-Journal

In a ruling that could open the door to gay marriage in Kentucky, a federal judge on Wednesday struck down Kentucky’s ban on recognizing valid same-sex marriages performed in other states, saying it violates the U.S. Constitution’s guarantee of equal protection under the law.

U.S. District Judge John G. Heyburn II joined nine other federal and state courts in invalidating such bans.

Ruling in a suit brought by four gay and lesbian couples, Heyburn said that while “religious beliefs … are vital to the fabric of society … assigning a religious or traditional rationale for a law does not make it constitutional when that law discriminates against a class of people without other reasons.”

Heyburn said “it is clear that Kentucky’s laws treat gay and lesbian persons differently in a way that demeans them.”

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Citing the U.S. Supreme Court’s ruling throwing out the Defense of Marriage Act, Heyburn struck down the portion of Kentucky’s 2004 constitutional amendment that said “only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky.”

The suit asked only that Kentucky be required to recognize gay marriages performed elsewhere; it is unclear whether the ruling also opens the door to allowing gay couples to get married in Kentucky, which the state’s constitution forbids.

The plaintiffs’ lawyers say they believe it may, while the Kentucky Attorney General’s Office, which defended the case, is reviewing that question, spokeswoman Allison Martin said.

Heyburn did not rule that Kentucky must allow gay marriages to be performed in the state.In a 23-page ruling, Heyburn said Kentucky’s sole justification for the the amendment was that was it was “rationally related to the legitimate government interest of preserving the state’s institution of traditional marriage.”

But Heyburn noted that over the past 40 years, the U.S. Supreme Court has refused to allow mere tradition to justify marriage statutes that violate individual liberties, such as the ban on interracial marriages that was once the law in Virginia, Kentucky and other states.

Heyburn also rejected the arguments of the Family Foundation of Kentucky — that recognizing same-sex marriages would undermine the fundamental role of marriage in ensuring procreation.

Heyburn said there is no requirement that opposite-sex couples agree to procreate to get married.

He also said “no one has offered any evidence that recognizing same-sex marriages will harm opposite-sex marriages.”

Responding to the ruling, Martin Cochran, an analyst for the Family Foundation of Kentucky, said in a news release that it “nullifies the right of Kentucky to determine policies regarding marriage” and that “Kentucky marriage policy will now be dictated from places like Boston and San Francisco.”

“If a state like Utah were ever to legalize polygamy, Kentucky would be forced to recognize it under this decision,” Cothran added.

Cothran said Kentucky voters will be disappointed with the practical effects of this decision. “This decision puts Kentucky voters on notice that if their reasons for defining marriage as between a man and a woman don’t correspond with the political ideology of liberal judges, their votes don’t count.”

The suit was filed on behalf of Gregory Bourke and Michael Deleon of Louisville, who were married in Ontario, Canada, in 2004; Jimmy Meade and Luther Barlowe, who live in Bardstown and were lawfully married in Davenport, Iowa, in 2009; Randell Johnson and Paul Campion, who live in Louisville and were married in Riverside, Calif., in 2008; and Kimberly Franklin and Tamera Boyd, who live in Cropper and were married in Stratford, Conn., in 2010.

The complaint also named their children.

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