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Kentucky: Movement toward same-sex marriage (SSM)

Part 1:
1972 to 2014: Brief history of SSM. Bourke v.
Breshear case filed in KY federal District Court.

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We use the acronym "SSM" throughout this web site to represent "same-sex marriage"
We use the acronym "LGBT" to refer to lesbians, gays, bisexuals, transgender persons
and transsexuals. The acronym "LGB" refers to lesbians, gays, and bisexuals.

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1972 to now: A brief history of SSM in Kentucky:

  • 1972: Two women attempted to obtain a marriage license in Kentucky. They were refused, In the resulting lawsuit, the Kentucky Supreme Court noted that the state laws did not define the precise meaning of "marriage" and did not specifically prohibit same-sex marriage. So, the Court consulted several dictionaries and used them to define "marriage" according to common usage among the public. They concluded that there was no constitutional case involved. and stated simply that:

    "In substance, the relationship proposed . . . is not a marriage." 1

    Those were simpler days!

  • Circa 1982: Gregory Bourke and Michael Deleon of Louisville, now both 55 years-of-age, met as students at the University of Kentucky. They have been together as a loving, committed couple ever since. In 2013 they became the lead plaintiffs in a lawsuit asking Kentucky to recognize their out-of-state same-sex marriage.

  • 1998: Motivated by a development in Hawaii towards the legalization of same-sex marriage, the Kentucky Legislature passed law K.R.S. Sections 402-005 to 402-045 which:
    • Defined marriage exclusively as the union of one woman and one man;

    • Prohibited marriage between members of the same sex;

    • Declared same-sex marriages as contrary to the state's public policy; and

    • Declared that same-sex marriages legally solemnized out of state were not recognized in Kentucky.

  • 2004-MAR: After having been together for over two decades, Bourke and Deleon went to Niagara Falls, Ontario, Canada and were married. In Canada, the District of Columbia, and about 17 states, they are now recognized as a married couple. In Kentucky their relationship is not recognized at all; they are regarded as "legal strangers" -- as mere roommates. They have adopted two children who are now in their teens. Each spouse is recognized by the states as a parent of one child and a guardian -- but not a legal parent -- of the other child.

  • 2004-NOV: Kentucky voters approved an amendment to the state constitution by a vote of about 74% in favor, 26% opposed. It states:

    "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."

    This was a stealth amendment. It was promoted by religious and social conservatives as a simple ban on same-sex marriages. In reality, it banned same-sex marriages, civil unions, and domestic partnerships.

    This was at a time when national polls showed that opposition to same-sex marriage was about 55% and support 42%. These data have flip-flopped since then. In the same year that this Kentucky lawsuit was launched, national polls showed that support for marriage equality reached 81% among adults under the age of 35, and 61% among adult women.

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2013-JUL-26: Bourke and Deleon filed a lawsuit as lead plaintiffs:

Gregory Bourke and Michael Deleon filed a complaint in the U.S. District Court for the Western District of Kentucky, exactly one month after the U.S. Supreme Court issued their ruling in Windsor v. United States. The latter was the case in which the Court declared Section 3 of the federal Defense of Marriage Act (DOMA) to be unconstitutional. That case triggered this lawsuit in Kentucky and about two dozen cases in other states.

Judge John G. Heyburn, II was assigned to the case. Three additional plaintiff couples were added on AUG-16, making a total of 8 adult and four minor children as plaintiffs. The defendants were initially Governor Steve Breshear and Attorney General Jack Conway. The County Clerk for either Nelson or Jefferson County was added in August. (Sources differ about the name of the county).

The other plaintiffs are:

  • Jimmy Meade and Luther Barlowe who have been together 44 years and were married in Davenport, IA in 2009.

  • Randell Johnson and Paul Campion who have been together for 22 years and were married in Riverside, CA in 2008.

  • Kimberly Franklin and Tamera Boyd who were married in Stratford, CT in 2010.

  • Also named as Plaintiffs are two couples' adopted children.

Their complaint was filed in federal District Court for the Western District of Kentucky. It is referred to as Bourke v. Breshear.

It is unusual to name the plaintiffs' children as co-plaintiffs in a lawsuit. Their complaint gives the reason:

"The fact that their parents’ marriage is not recognized in Kentucky harms them materially by reducing family resources and stigmatizes them by denying their family social recognition and respect. ... As the Plaintiff couple’s marriage is not recognized by the state, when they adopted the minor Plaintiffs, they were only able to have one parent listed as the adoptive parent, and the other parent had to go to court to acquire guardianship papers for his own children so that he could be their legal guardian, but not their legal parent. This is just one example of how the Commonwealth materially impacts the Plaintiff children’s lives [negatively]." 2

The complaint quotes excerpts from the decision by the U.S. Supreme Court on 2013-JUN-26 in United States v, Windsor. This was the case that declared Section 3 of the federal Defense of Marriage Act to be unconstitutional. The complaint states:

"The exclusion from marriage undermines the Plaintiff couples' ability to achieve their life goals and dreams, threatens their mutual economic stability, and denies them a dignity and status of immense import. Moreover, they and their children are stigmatized and relegated to a second class status by being barred from marriage. The exclusion 'tells same-sex couples and all the world that their relationships are unworthy' of recognition. And it 'humiliates the ...children now being raised by same-sex couples' and 'makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives'." 2

The plaintiffs' main claims are:

  1. Deprivation of the fundamental right to marry in violation of the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution.

  2. Discrimination on the basis of sexual orientation in violation of the Equal Protection Clause of the Fourteenth Amendment.

  3. Discrimination against same-sex couples in violation of the freedom of association guaranteed by the First Amendment.

  4. Failure to recognize valid public records of other states in violation of the Full Faith and Credit Clause of Article IV, Section 1.

  5. Deprivation of the right to travel in violation of the Due Process Clause of the Fourteenth Amendment.

  6. Establishment of a religious definition of marriage in violation of the Establishment Clause of the First Amendment.

The main goals of the plaintiffs were to seek a permanent injunction preventing:

  • "Defendants from denying the Plaintiff couples and all other same-sex couples otherwise eligible to marry, the right to marry in the Commonwealth of Kentucky, and

  • Directing Defendants to recognize the marriages of the Plaintiff couple and other same-sex couples validly entered into outside of Kentucky." 2

In other words, they wanted Kentucky to attain full marriage equality.

However, according to Brett Barrouquere's article in the Huffington Post:

"The ruling only requires Kentucky to recognize the marriages of gay and lesbian couples performed in other states or countries. It does not deal with the question of whether the state can be required to issue marriage licenses to same-sex couples, as that issue wasn't brought up in the four lawsuits that triggered the ruling." 3

Presumably this is because the plaintiffs are already married, and therefore have no stake in being able to marry in Kentucky. No stake, no standing.

However, most of the District Court's memorandum would apply to legalizing same-sex marriages in Kentucky if a new case were filed by unmarried couples asking to marry in the state. That is exactly what happened on FEB-14. Judge Heyburn issued a ruling in this case on JUL-0, legalizing marriage for same-sex couples in Kentucky. He stayed his ruling pending an appeal.

Since the U.S. Supreme Court's ruling on 2003-JUN-26 in Windsor v. United State -- the case that declared Section 3 of the federal Defense of Marriage Act unconstitutional -- Judge Hayburn's ruling is the tenth ruling on same-sex marriage by a state or federal judge. All ten have ruled in favor of SSM. The courts seem to be on a roll.

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This topic continues in the next essay.

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References used:

The following information source was used to prepare and update the above essay. The hyperlink is not necessarily still active today.

  1. "Kentucky Gay Marriage Decision," Scribd, 2014-FEB-12, at: http://www.scribd.com/
  2. Case 3:13-cv-00750-JGH, Bourke v. Beshear, U.S. District Court for the Western District of Kentucky, 2013-JUL-26, at: http://www.scribd.com/
  3. Brett Barrouquere, "Kentucky Ban On Recognizing Out-Of-State Gay Marriages Struck Down By Federal Judge," Huffington Post, 2014-FEB-12, at: http://www.huffingtonpost.com/

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How you may have arrived here:

Home > "Hot" topics > Homosexuality > Same-sex marriage > SSM sub-menu > Kentucky > here

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Copyright © 2014 by Ontario Consultants on Religious Tolerance.
First posted: 2014-FEB-13
Latest update: 2014-FEB-16
Author: B.A. Robinson
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