Gay marriage almost Legal in Kentucky

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Appeals scheduled in August for ruling

By Lisa King

Although a federal judge ruled in favor of gay marriage in Kentucky Tuesday, same-sex couples still will not be allowed in marry in the commonwealth until all appeals are dealt with.

In striking down Kentucky's ban on gay marriage, U.S. District Judge John G. Heyburn II rejected Gov. Steve Beshear's argument that the state’s ban on the practice is necessary because only heterosexual couples can procreate and maintain the state's birth rate and economy.

"These arguments are not those of serious people," Heyburn wrote in his opinion.

Beshear’s office issued a statement following the announcement.

“Now that Judge Heyburn has issued his opinion on this portion of the case, we will be appealing the decision so that the matter is fully before the Sixth Circuit, where these same issues from other states are already scheduled to be decided by the Sixth Circuit."

Heyburn also wrote in his 19-page opinion: “Even assuming the state has a legitimate interest in promoting procreation," he didn’t see how the exclusion of same-sex couples from marriage has "any effect whatsoever on procreation among heterosexual spouses.''

Heyburn put his ruling on hold pending the outcome of gay marriage cases from four states that are to be argued Aug. 6 at the U.S. 6th Circuit Court of Appeals, said Shelbyville attorney Nathan Riggs.

“The U.S. Sixth Court of Appeals has scheduled arguments on rulings from Ohio, Michigan, Kentucky and Tennessee in a single session August sixth,” he said. “Because this appeal is pending, until the Sixth Circuit Court of Appeals gets a chance to hear it, they’re not going to do anything.”

Heyburn also wrote he realized that many people in Kentucky oppose same-sex marriage for religious reasons. However, he said, "In America, even sincere and long-held religious beliefs do not trump the constitutional rights of those who happen to have been outvoted."

Gay rights advocates applauded Heyburn's ruling; others, including U.S. Mitch McConnell, R-Ky., condemned it.

Martin Cothran, an analyst for the Family Foundation, which led the fight for Kentucky's 2004 constitutional amendment banning gay marriage, spoke to the issue as he sees it, he said.

“I think that federal courts have now taken over marriage policy in this state, by ruling against the right of voters to decide,” he said. “It’s a federalization of the marriage issue. When you’re a conservative, what you have to do is you have to go through the long process of going to the legislature, getting a bill passed, putting it on the ballot, that’s the way we have to change the constitution, and it’s a long involved process. What this ruling shows is that if you’re a liberal, you don’t have to do that. You get a judge who’s politically sympathetic, and you have them rule by decree, and all of this is in the name of fairness, which is rather ironic.”

Attorney Shannon Fauver, who represented Kimberly Franklin and Tammy Boyd, a same-sex couple in Shelbyville that married in Connecticut in 2010 and filed a lawsuit last summer aimed at forcing the state to recognize same-sex marriages, said that she doesn’t think that Beshear’s arguments will hold when the case goes up for appeal in the sixth circuit.

“When Judge Heyburn said this is not an argument for serious people, I heard that some reporters were sitting in the courtroom laughing, because he very nicely told them what he thought of the argument,” she said.

Heyburn had ruled in February that Kentucky must recognize same-sex marriages performed in other states.

Tuesday’s ruling was in favor of two Louisville couples, and Franklin said it’s possible that her and Boyd’s case could be joined, even though there is a slight difference in their arguments.

“We are following their case and there’s a chance that their case would be merged with ours,” she said. “Where ours was the recognition of marriage licenses from other states, their lawsuit was to the issuance of licenses, but the two cases are more than likely, if not joined together, they’re probably going to run parallel through the system, hopefully.”

She added that she and Boyd are optimistic about the ultimate outcome of that litigation.

“In our thoughts all along, with this additional update, that’s the way it should be, that’s the way it needs to be and that’s what’s right and constitutionally correct. We’re also optimistic in that we already have been successful, as they have, and several other states and one other circuit court has ruled that same way, so we are very cautiously optimistic and excited to see it through. Our plans are to go to go before the sixth circuit and be there on August sixth, when the case goes before that court and see what happens from there.”

John Robinson, a Shelbyville attorney who has been following the case, said he was not surprised by Tuesday’s ruling.

“I have read Judge Heyburn’s opinion, and frankly, it does not come as a surprise,” he said. “It appears that the writing has been on the wall for some time now, as all the federal and many state courts moved toward banning the prohibition against same-sex marriage on federal constitutional grounds.’

Robinson said that over the last 15 years, the firewall has been chipped away that discriminated against same-sex marriage.

“Judge Heyburn’s opinion was more limited than most in that he just utilized the equal protection clause of the 14th amendment. A lot of other federal courts have stricken down the same-sex marriage prohibitions on multiple constitution grounds, but judge Heyburn just took his strongest position and utilized that and just kind of streamlined his opinion.”

Robinson said he doesn’t think the issue will remain in limbo for an extended period of time.

“I think that if Governor Beshear’s office decides to appeal this, I believe it’s the type of case that the sixth circuit would take up pretty quickly, and maybe resolve within fifteen to eighteen months,” he said. “There’s just so much movement among all of the federal courts and jurisdictions that this issue is prime. It’s been being primed for ten to fifteen years, and it’s ready for all of the federal district courts to take up and rule upon.”