Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Friday, February 14, 2014

Kentucky Opinion Recognizing Out-of-State Same-Sex Marriage

We welcome this morning guest blogger Professor Jamie Abrams from the University of Louisville School of Law.

Advocates for same-sex marriage in the Bluegrass State are toasting fine Bourbon.  Judge Heyburn of Kentucky’s Western District, a George H.W. Bush appointee, struck down on equal protection grounds Kentucky’s ban on the recognition of valid same-sex marriages performed out-of-state.   

While the constitutionality of Kentucky’s own ban was not directly before the court, Judge Heyburn’s opinion in Bourke v. Beshear strongly suggests that Kentucky’s ban sits on perilous constitutional grounds, stating “there is no doubt that Windsor and this Court’s analysis suggest a possible result to that question.”  Op. at 19.  It states that Romer, Lawrence, and Windsor have established the “framework of cases from which district judges now draw wisdom and inspiration,” which have led to “this place and this time, where the right of same-sex spouses to the state-conferred benefits of marriage is virtually compelled.”  Op. at 23.  Attorneys are expected to file a direct challenge to Kentucky’s marriage ban today. 

After finding the provisions governing out-of-state marriage recognition unconstitutional, the opinion distinctively addressed religious views directly.  The government had argued only that its interest in banning same-sex marriage was to “preserve traditional marriage.”  Although not directly raised in the briefing, Judge Heyburn nonetheless acknowledged that many Kentuckians support the bans based on their religious beliefs and teachings.  Op. at 18.  The opinion acknowledged these concerns and described them as “understandable and deserv[ing] of an answer.”  Op. at 18.  Judge Heyburn responded that:

Once the government defines marriage and attaches benefits to that definition, it must do so constitutionally.  It cannot impose a traditional or faith-based limitation upon a public right without a sufficient justification for it.  Assigning a religious or traditional rationale for a law, does not make it constitutional when that law discriminates against a class of people without other reasons.  Op. at 18. 

Although the case applied rational basis analysis, the opinion also weighed in on whether sexual orientation is a suspect classification.  The court acknowledged strong precedent suggesting heightened scrutiny is owed; suggested that Lawrence called into question Sixth Circuit precedent relying on Bowers to the contrary; and conducted a cursory suspect class analysis to suggest that “gay and lesbian individuals do constitute a suspect class.”  Op. at 9.  This opinion reads with strong overtones of a “triple crown” victory of recognition of out-of-state marriages, a roadmap to same-sex marriages performed in Kentucky, and a tentative conclusion of sexual orientation as a suspect class.

The full opinion is here: Download BourkevBeshear

Family, Same-sex marriage | Permalink


This opinion is well-worth the read. Written for a general audience and addresses the questions of faith and tolerance directly.

Posted by: Tracy Thomas | Feb 14, 2014 6:11:50 AM

Post a comment