WASHINGTON — Building off his February opinion forcing Kentucky officials to recognize same-sex couples' marriages performed out of state, a federal judge Tuesday ruled that Kentucky must allow same-sex couples to marry in the state.
"The ability to marry in one's state is arguably much more meaningful, to those on both sides of the debate, than the recognition of a marriage performed in another jurisdiction," U.S. District Court Judge John G. Heyburn II wrote. "But it is for that very reason that the Court is all the more confident in its ruling today."
He ruled that "to the extent Ky. Rev. Stat. §§ 402.005 and .020(1)(d) and Section 233A of the Kentucky Constitution deny same-sex couples the right to marry in Kentucky, they violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, and they are void and unenforceable."
He also stayed the order in the trial court "until further order of the Sixth Circuit" — meaning there are no immediate marriages for same-sex couples in Kentucky.
Heyburn ruled in February that Kentucky officials had to recognize the marriages of same-sex couples who had gotten married in states that permit such marriages. The lawyers in the case then brought other claims from same-sex couples who wished to get married in Kentucky, succeeding in intervening in the recognition case to try those claims. Tuesday's ruling is on those claims.
Kentucky Gov. Steve Beshear is defending the ban, having appealed the recognition ruling to the 6th Circuit Court of Appeals. The appeals court has scheduled arguments for early August in that case and other similar cases out of Michigan, Ohio, and Tennessee.
In reaching his ruling, Heyburn — appointed to then bench in 1992 by President George H.W. Bush — did not take the same path as last week's ruling from the 10th Circuit Court of Appeal. The appeals court decided that the marriage ban in Utah was unconstitutional because it violated due process by infringing on the fundamental right of the couples to marry, but Heyburn found that outcome is "unlikely" to be the one reached by the Supreme Court should it decide the issue. He wrote:
Since the Supreme Court's landmark decision in United States v. Windsor, 133 S.Ct. 2675 (2013), every federal court to consider state bans on same-sex marriage and recognition has declared them unconstitutional. Most of these courts have done so under both the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. This Court's opinion differs in that it does not determine whether Kentucky's laws interfere with a fundamental right. The Court's chief reason for declining to do so is its careful reading of Windsor, which suggests that the Supreme Court is unwilling and unlikely to view the right Plaintiffs seek to exercise as fundamental under the Constitution.
Heyburn did conclude, however, "that the Commonwealth's exclusion of same- sex couples from civil marriage violates the Equal Protection Clause."