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Same-sex marriage in Kentucky

Counties issuing to all couples (blue), and refusing same-sex couples (pink & grey), as of October 8, 2015.
Legal status of same-sex unions
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Same-sex marriage in Kentucky is legal under the U.S. Supreme Court ruling in Obergefell v. Hodges. The decision, which struck down Kentucky's statutory and constitutional bans on same-sex marriages, was handed down on June 26, 2015, and Governor Steve Beshear and Attorney General Jack Conway announced almost immediately that the court's order would be implemented.[1]

On February 12, 2014, Judge John G. Heyburn II of the U.S. District Court for the Western District of Kentucky ruled that Kentucky must recognize same-sex marriages established in other jurisdictions. On July 1, the same judge ruled that Kentucky's denial of marriage licenses to same-sex couples violates the U.S. Constitution, but stayed the implementation of both his decisions pending appeal. The Sixth Circuit reversed both those decisions on November 6. The same-sex couples have asked the U.S. Supreme Court to review that decision.[2] On January 16, 2015, the U.S. Supreme Court consolidated these cases with three others and agreed to review the case.[3]

As of October 8, 2015, officials of two Kentucky counties refuse to issue licenses to same-sex couples: Casey and Whitley. The clerks from both counties have demonstrated at the state capitol to demand a religious exemption from issuing licenses to same-sex couples. A third county, Knott, refuses to say whether they will issue licenses.


On November 9, 1973, the Kentucky Court of Appeals ruled in Jones v. Hallahan that two women were properly denied a marriage license based on dictionary definitions of marriage, despite the fact that state statutes did not restrict marriage to a female-male couple. Its decision said that "in substance, the relationship proposed ... is not a marriage."[4][5]

Since July 15, 1998, Kentucky's statutes have defined marriage as a relationship between a man and a woman, prohibited same-sex marriage and declared it contrary to public policy, and denied recognition to same-sex marriages from other jurisdictions.[6]

In November 2004, Kentucky voters gave Kentucky Constitutional Amendment 1 75 percent of their votes. It reads:[7]

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.

Kentucky's only recognition of same-sex relationships was its extension of hospital visitation rights to same-sex couples through a designated visitor statute.[8]

Federal lawsuits

Bourke v. Beshear

On July 26, 2013, a same-sex couple legally married in Canada filed a lawsuit in U.S. District Court for the Western District of Kentucky challenging Kentucky's refusal to recognize their marriage.[9] Other plaintiffs were later added; the state governor and attorney general were the named defendants.[10][11] The plaintiffs in Bourke argued that Kentucky should recognize same-sex marriages from other jurisdictions.[12] The case was assigned to Judge John G. Heyburn II.[10] Note : Franklin v Beshear (case # 3:13-cv-00946) initiated 06-26-13 (filed 08-16-13) included with Bourke v. Beshear.

In a decision issued February 12, 2014, Judge Heyburn found that Kentucky must recognize same-sex marriages from other jurisdictions because withholding recognition violates the U.S. Constitution's guarantee of equal protection.[13] His final order, issued on February 27, 2014, made recognition of out-of-state same-sex marriages de jure legal; being a final order it was then immediately subject to appeal. Heyburn stayed his decision for 21 days the next day.

On March 4, Kentucky Attorney General Jack Conway announced that he would neither appeal the state's position nor request further stays. Kentucky Governor Steve Beshear said he would employ outside counsel to appeal Heyburn's ruling in Bourke to the U.S. Sixth Circuit Court of Appeals and to request a stay pending appeal.[14][15] On March 19, Judge Heyburn extended his stay pending appeal, noting the stay granted by the U.S. Supreme Court in a similar Utah case. On the same date, defendants lodged an interlocutory appeal of Bourke in the Sixth Circuit. Oral arguments in the case were held on August 6, 2014.

Love v. Beshear

On February 14, 2014, two same-sex couples who were denied marriage licenses in Kentucky asked to be allowed to intervene in Bourke.[16] As Judge Heyburn issued a final order in Bourke, he bifurcated the case and allowed the new plaintiffs to intervene and argue against Kentucky's denial of marriage licenses to same-sex couples. This portion of the case remained in district court, retitled as Love v. Beshear. A briefing schedule on this issue was completed by May 28.[17][18]

On July 1, Judge Heyburn found in favor of the intervening same-sex couple plaintiffs in Love and ruled that Kentucky's ban on allowing same-sex couples to marry violates the Equal Protection Clause.[19]

The Sixth Circuit Court of Appeals consolidated Love with Bourke v. Beshear. It heard oral arguments on August 6, the same day it heard same-sex marriage cases originating in Michigan, Ohio, and Tennessee.

Appellate decision

On November 6, the Sixth Circuit ruled 2–1 in both cases that Kentucky's ban on same-sex marriage does not violate the constitution. It said it was bound by the U.S. Supreme Court's 1972 action a similar case, Baker v. Nelson, which dismissed a same-sex couple's marriage claim "for want of a substantial federal question." Writing for the majority, Judge Jeffrey Sutton also dismissed the arguments made on behalf of same-sex couples in this case: "Not one of the plaintiffs' theories, however, makes the case for constitutionalizing the definition of marriage and for removing the issue from the place it has been since the founding: in the hands of state voters." Dissenting, Judge Martha Craig Daughtrey wrote: "Because the correct result is so obvious, one is tempted to speculate that the majority has purposefully taken the contrary position to create the circuit split regarding the legality of same-sex marriage that could prompt a grant of certiorari by the Supreme Court and an end to the uncertainty of status and the interstate chaos that the current discrepancy in state laws threatens."[20]

The same-sex couples filed a petition for a writ of certiorari with the U.S. Supreme Court on November 17.[2]

Supreme Court review

On January 16, 2015, the U.S. Supreme Court consolidated these cases with three others and agreed to review the case.[3] The court ultimately decided against the states and reversed the judgment of the Sixth Circuit in Obergefell v. Hodges on June 26, 2015, requiring Kentucky to begin licensing marriages between couples of the same sex.[1]

State lawsuits

On April 16, 2015, Kentucky Equality Federation v. Beshear (also known as Kentucky Equality Federation v. Commonwealth of Kentucky) was ruled on by Franklin County Circuit Court Judge Thomas D. Wingate. Judge Wingate sided with Kentucky Equality Federation against the Commonwealth and struck down Kentucky Constitutional Amendment banning same-sex marriages. Judge Wingate also struck down all laws passed by the Kentucky General Assembly. At the request of Governor Steve Beshear's legal representation, the Judge also placed a stay on the order pending a ruling from a Kentucky appellate court (such as the Kentucky Court of Appeals or Kentucky's court of last resort, the Kentucky Supreme Court) or the U.S. Supreme Court.[21][22] The lawsuit was a significant victory for the Kentucky Equality Federation and the same-sex marriage civil rights movement.

County responses to Obergefell v. Hodges

As of October 2, 2015, three counties refuse or have not been confirmed to be ready to issue licenses to same-sex couples. Whitley, and Casey clerks claim that the First Amendment of the US Constitution or Section Five of the Kentucky constitution protects their religious freedom to refuse to issue licenses for same-sex marriage.[24] Knott County officials refuse to state whether they would issue a license to a same sex couple but none have applied to do so.

A decision by U.S. District Court Judge David L. Bunning ordering Rowan County clerk Kim Davis to resume issuing marriage licenses to all couples was to go into effect August 31, 2015 or upon a ruling by the 6th Circuit Court.[25] On August 26, 2015, a three-judge panel of the United States Court of Appeals for the Sixth Circuit upheld Judge Bunning's decision, denying Davis' request for an extension of the stay of the ruling.[26] On August 31, 2015, the United States Supreme Court denied an emergency application from Davis to extend the stay of the ruling.[27] The Clerk's appeal on the merits of her religious freedom argument is ongoing before the Sixth Circuit, though on September 3, 2015, Judge Bunning jailed Ms. Davis, finding her refusal to issue marriage licenses or allow her deputy clerks to do so, constituted contempt of court.[28] Five of the six deputy clerks in the Rowan County Clerk's office issued marriage licenses to same-sex couples beginning September 4, 2015, though with Davis refusing to authorize such licenses even in jail, the legal status of such licenses may be somewhat clouded.[29][30]

Governor Steve Beshear has ordered all county clerks to abide by the U.S. Supreme Court ruling in Obergefell v. Hodges.

Originally, Whitley County clerk claimed technical issues prevented the issuing of licenses, saying licenses will be issued once difficulties are resolved. However, recent reports regarding Whitley County clerk Kay Schwartz's appearance at a religious rally outside the state capitol on August 22, 2015 shed new light on the reason behind the delay. The clerk is claiming issuing the licenses violates her religious liberty. She participated in the event alongside Rowan County's Kim Davis and Casey County's Casey Davis. The event was organized by the conservative Christian group The Family Foundation.[31]

Public opinion

Public opinion for same-sex marriage in Kentucky
Poll source Date(s)
Margin of
% support % opposition % no opinion
Survey USA March 3, 2015 – March 8, 2015 1,917 registered voters ± 2.3% 33% 57% 10%
New York Times/CBS News/YouGov September 20 – October 1, 2014 1,689 likely voters ± 2.8% 38% 50% 13%
Public Policy Polling August 7–10, 2014 991 voters ± 3.1% 30% 61% 9%
Bluegrass Poll July 18–23, 2014 714 registered voters ± 3.7% 37% 50% 12%
New York Times/Kaiser Family Foundation April 8–15, 2014 891 registered voters ± ?% 38% 54% 8%
Bluegrass Poll January 30 – February 4, 2014 1,082 registered voters ± 3% 35% 55% 10%
Public Policy Polling April 11, 2013 27% 65%

See also


  1. ^ a b
  2. ^ a b
  3. ^ a b
  4. ^ Kentucky Court of Appeals: Jones v. Callahan, November 9, 1973
  5. ^ Barbara J. Cox, "Same-Sex Marriage and Choice-of-Law: If We Marry in Hawaii, Are We Still Married When We Return Home?", in Wisconsin Law Review, 1994, 179ff., available online, accessed March 9, 2014
  6. ^
  7. ^ CNN: 2004 Ballot Measures, accessed April 13, 2011
  8. ^
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  10. ^ a b
  11. ^
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  28. ^
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  30. ^
  31. ^

External links

  • , Civil Action No. 3:13-CV-750-H, February 12, 2014Bourke v. BeshearMemorandum Order of the United States District Court, Western District of Kentucky, at Louisville,
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