Same-sex Marriage in Kentucky, Sooner or Later?
The question isn’t whether or not same-sex marriage will be legal in Kentucky; the question is when it will be legal in Kentucky. At this point, Kentucky has the opportunity to be a trailblazer with regard to the legalization of same-sex marriage. To date, fifty-five percent of the citizens of Kentucky are covered by Fairness Ordinances, which means they can’t be discriminated against for housing or work, amongst other things, based on their sexual orientation, but Kentucky will not allow same-sex marriages for those same citizens.
Since the Windsor vs. United States ruling, things have changed dramatically in regards to same-sex marriage in the United States. Eddie Windsor filed her original case when the she was given a $363,000 federal estate tax bill after her partner of 44 years died. Ms. Windsor and her wife were legally wed in Canada in 2007, as they could not marry in this country at that time due to the Defense of Marriage Act (DOMA). After the case worked its way up to the US Supreme Court, it was ruled on June 26, 2013.
As a basic background, the US Supreme Court ruled on June 26, 2013 that Section 3 of DOMA was unconstitutional. That section defined a marriage as a union between a man and a woman. The Supreme Court did not rule that same-sex marriage was allowed, as they did not specifically tackle that issue. From the date DOMA was signed in 1996 until June 26, 2013, same-sex marriage was specifically not allowed by the Federal government.
Between the ruling on DOMA on June 26, 2013 and now, April 12, 2015, 37 states recognize same-sex marriage. (Washington D.C. legalized same-sex marriage on March 3, 2010.) There have been different ways the states have legalized same-sex marriage; some states legalized same-sex marriage by popular vote.
After the ruling on Windsor, the Federal Government has stated that they will recognize same-sex marriages for Federal purposes, ranging from Veteran’s benefits to taxes. Over the last two years, since Windsor, there continues to be litigation across the country to try and determine exactly what the implications are for the citizens of each state. For example, in Kentucky a same-sex couples who were married in another state may receive Veteran’s benefits for their spouse, but cannot file state taxes as a married couple. There are numerous issues and inequities that result from the treatment of same-sex and opposite-sex married couples, some of which can be found in Bourke vs. Beshear, Case No. 3:13-CV-750. That case asks that Kentucky recognize same-sex marriages from other jurisdictions, just as Kentucky recognizes opposite-sex marriages from other jurisdictions.
While the Bourke case has received national coverage, it is not the first same-sex marriage case in Kentucky. There may have been others, but the first one that I am aware of is a bankruptcy case filed last year. In that case, a married same-sex couple filed as such in the Bankruptcy Court in Louisville. The ruling in the case was held until after the Supreme Court ruling in the Windsor case, as the Supreme Court had granted cert on that case right before the bankruptcy case was filed. In October of this year, the bankruptcy court allowed that bankruptcy case to go forward as a joint filing. The joint filing would not be allowed if the Federal Government did not state that they would recognize same-sex marriages for Federal purposes.
In a murder trial 2013, the topic of spousal privilege came up, but the judge ruled that that couple was not legally married in a state that allowed it, but instead had a civil union. So, the decision didn’t end up directly addressing spousal privilege in same-sex marriage cases in Kentucky.
A state court case was filed in Frankfort by a male couple who were previously married in another state. They asked for clarification as to whether or not the county clerks in Kentucky recognize their marriage and when they were informed that they did not, they asked for and were denied a marriage license. Upon that denial of a marriage license, they filed suit. That case is currently pending in Franklin Circuit Court.
In Jefferson County Circuit Court a divorce proceeding has been filed for a same-sex couple. That case was ruled on in December of 2014. As far as we know, it is the only same-sex divorce that has been finalized in Kentucky to date. One of the flukes about the same-sex marriage ban is that the state doesn’t recognize same-sex marriages, but it may preclude a same-sex divorce. As of today, the only jurisdiction that allows same-sex divorce for non-residents is Washington D.C., but the marriage must have been performed there.
In January of 2013, two men were arrested for criminal trespassing as they were peacefully resisting instructions to leave when they could not obtain a marriage license. In their trial, they were found guilty, but only fined one cent apiece, which was conditionally discharged. These gentlemen would become two of the Plaintiffs in the Love vs. Beshear case, No. 3:13-CV-00750.
Along with the Bourke case, a similar case was filed in Frankfort’s Federal District Court, Franklin vs. Beshear, Case No. 3:13-CV-00051. This case was later merged with the Bourke case so that the cases did not run the risk of receiving two inconsistent rulings in the two federal jurisdictions of Kentucky.
On February 12, 2014, Judge Heyburn ruled on the Bourke case. He ruled that the State of Kentucky had to recognize valid same-sex marriages performed outside of Kentucky. There was a brief stay issued in that ruling. On February 14, 2014, while the stay was in effect the Love case was filed along with a motion to intervene in the Bourke case. The Love case asked that the State’s ban on issuing same-sex marriage licenses be invalidated.
The State of Kentucky appealed the Bourke case and the once Heyburn ruled on behalf of the Plaintiffs, in the Love case, the State also appealed that ruling. Stays were issued in both cases pending a resolution by the 6th Circuit.
On August 6, 2014 the Bourke and Love cases were heard by the Sixth Circuit Court of Appeals, along with cases from Ohio, Tennessee and Michigan. In November 2014, the all four of those cases were ruled on and created a split in the Circuits as every other Circuit had ruled in favor of same-sex marriage up until that time.
Cert was requested and these cases are presently set to be heard on April 28, 2015 by the U.S. Supreme Court with a ruled expected in June of 2015.
Footnote:
After this post, I found that on July 6, 1970 two women (listed as Marjorie Jones and Tracy Knight) applied for a marriage license in Jefferson County Kentucky. The filed a lawsuit, but they were denied the marriage license.