Kentucky gay marriage ban is 'unenforceable,' US judge rules

Kentucky's gay marriage ban was struck down Tuesday by a US district judge, the 11th to reject a state law outlawing same-sex unions. His ruling, unlike some others, did not lay out a fundamental right for gay couples to marry.

Brett Barrouquere/AP
Timothy Love, the lead plaintiff in the Kentucky gay marriage case, speaks to reporters on July 1 in Louisville, Ky. Earlier in the day, a federal judge struck down the state's ban on same-sex couples getting marriage licenses and overturned the state's ban on gay couples getting married.

A federal judge declared Kentucky’s ban on same-sex marriages “void and unenforceable” on Tuesday, joining 10 other federal judges who have struck down similar state marriage bans since December.

US District Judge John Heyburn ridiculed attempts by state officials to justify the 1998 statute and 2004 constitutional amendment defining marriage as a union of one man and one woman.

The judge said there is an “utter lack of logical relation between the exclusion of same-sex couples from marriages and any conceivable legitimate state interest.”

As part of his decision, the judge issued an immediate stay pending the outcome of an expected appeal to the Sixth US Circuit Court of Appeals in Cincinnati. Thus, no same-sex marriages will be performed in Kentucky for the time being.

The ruling is the latest in a steady drumbeat of decisions invalidating state bans on same-sex marriage. In addition to the 10 other federal judges, a US appeals court panel, two state supreme courts, and a state circuit judge have also struck down marriage bans in the past six months.

Same-sex marriages are recognized in 19 states and the District of Columbia. More than 80 lawsuits have been filed by same-sex partners seeking to overturn state bans and eventually get a case to the US Supreme Court for a final decision.

Judge Heyburn made headlines in February when he ordered Kentucky officials to begin recognizing same-sex marriages performed out of state.

Since then, that lawsuit was expanded to include a challenge to the Kentucky ban on same-sex marriages.

In reaching his decision, Heyburn declined to address whether there is a fundamental right to marry regardless of sexual orientation.

Of the 10 other federal judges who have struck down state bans, seven have done so by finding that the bans violate a fundamental right of gay men and lesbians to marry.

Heyburn said he did not need to reach that issue to resolve the case before him. “This Court finds caution here a more appropriate approach to avoid overreaching in its own constitutional analysis,” he wrote in his 19-page decision.

The judge said his “careful reading” of last year’s gay marriage ruling in the Windsor case at the US Supreme Court “suggests that the Supreme Court is unwilling and unlikely to view the right Plaintiffs seek to exercise as fundamental under the Constitution.”

He noted that Justice Anthony Kennedy’s majority opinion in the Windsor case did not articulate a standard of review or discuss the fundamental right to marry.

“Justice Kennedy’s choice to remain silent on the question is significant,” Heyburn said. The justice could have easily resolved the case by recognizing a fundamental right, he noted.

Heyburn said he concludes that “holding that a 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.”

Instead, the judge grounded his decision invalidating the Kentucky same-sex marriage ban on enforcement of the equal protection clause of the 14th Amendment. The clause guarantees equal treatment and equal protection of individuals in the states.

Heyburn said the Kentucky ban serves to exclude a class of people, gay men and lesbians, from “the status and dignity of marriage.”

For the Kentucky ban to survive, state officials would have to show that the state's desire to maintain the traditional definition of marriage is substantially related to an important governmental objective.

The state failed that test, the judge said. “Kentucky’s laws banning same-sex marriage cannot withstand constitutional review regardless of the standard,” he wrote.

State officials had argued that upholding the traditional definition of marriage is necessary to encourage, promote, and support the formation of relationships that have a natural ability to produce children.

They also said the definition would help achieve a stable birth rate to ensure the state’s long-term economic stability.

“These arguments are not those of serious people,” the judge said.

Heyburn said he is aware that his decision, like his earlier ruling, would draw support and opposition.

“Those opposed by and large simply believe that the state has the right to adopt a particular religious or traditional view of marriage regardless of how it may affect gay and lesbian persons,” he said. “But, as this Court has respectfully explained, in America even sincere and long-held religious views do not trump the constitutional rights of those who happen to have been out-voted.”

The judge suggested that enforcing a broader definition of marriage in Kentucky would take nothing from other married couples.

“Assuring equal protection for same-sex couples does not diminish the freedom of others to any degree,” he said. “Thus, same-sex couples’ right to marry seems to be a uniquely 'free' constitutional right.”

“Hopefully, even those opposed to or uncertain about same-sex marriage will see it that way in the future,” he said. 

The case is Timothy Love v. Steve Beshear (13cv750).

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