Kentucky Ban on Same-Sex Marriage Held Unconstitutional

Kentucky Ban on Same-Sex Marriage Held Unconstitutional

      By statute and Constitution, Kentucky has laws providing, inter alia, that it will not recognize same-sex marriages performed in other states and that same-sex marriages may not be performed in Kentucky.  Earlier this year, Judge Heyburn declared unconstitutional that aspect of Kentucky law providing that Kentucky will not recognize same-sex marriages performed in other jurisdictions.  That decision is currently being appealed to the Sixth Circuit Court of Appeals in concert with similar rulings from other states throughout the Sixth Circuit. 

      Since Judge Heyburn’s initial decision, additional Plaintiffs have joined the case.  Specifically, these new Plaintiffs desire to be married in Kentucky; they are not married under the laws of any foreign jurisdiction.  Yesterday, Judge Heyburn held that those aspects of Kentucky law precluding a same-sex marriage are unconstitutional.  Ergo, Kentucky has no legitimate basis for denying marriage licenses to same-sex couples.  The issuances of those marriage licenses will not, however, commence immediately; Judge Heyburn has stayed his ruling until the Sixth Circuit can consider the issue.

       Of concern primarily to attorneys involved in due process analysis, Judge Heyburn did not find that sexual orientation creates a protected class.  Rather, it was not ultimately necessary to engage in that analysis as under even the highly differential rational basis analysis, the prohibition of marriage licenses to same-sex couples failed: “Kentucky’s laws banning same-sex marriage cannot withstand Constitutional review regardless of the standard.  The Court will demonstrate this by analyzing Plaintiffs’ challenge under rational basis review.” Slip op. at 14.

      Before Judge Heyburn (and as well argued to the Sixth Circuit), the state of Kentucky has argued that restricting marriage to heterosexual couples insures a balanced birthrate, that being necessary for Kentucky’s long term economic viability.  This argument has been widely lampooned, including HERE. 

      In response, the Court wrote:

This Court will begin with Defendant’s only asserted justification for Kentucky’s laws prohibiting same-sex marriage: “encouraging, promoting, and supporting the formulation of relationships that have the natural ability to procreate.”  Perhaps recognizing that procreation-based arguments have not succeeded in this Court, nor any other Court post-Windsor, Defendant adds a disingenuous twist to the argument:  traditional marriages contribute to a stable birth rate which, in turn, ensures the state’s long-term economic stability. 

These arguments are not those of serious people.  Though it seems almost unnecessary to explain, here are the reasons why.  Even assuming the state has a legitimate interest in promoting procreation, the Court fails to see, and the Defendant never explains, how the exclusion of same-sex couples from marriage has any affect whatsoever on procreation among heterosexual spouses.  Excluding same-sex couples from marriage does not change the number of heterosexual couples who choose to get married, the number who choose to have children, or the number of children they have.  The Court finds no rational relation between the exclusion of same-sex couples from marriage and the Commonwealth’s asserted interest in promoting naturally procreative marriages.  Slip op. at 15.

He went on to observe “that Kentucky’s laws do not deny licenses to other non-procreative couples reveals the true hypocrisy of the procreation-based argument.” Slip op. at 16.

      Responding to the likely suggestion by some that allowing same-sex marriage in some manner impinges upon their rights, Judge Heyburn wrote:

Sometimes, by upholding equal rights for a few, Courts necessarily must require others to forebear some prior conduct or restrain some personal instinct.  Here, that would not seem to be the case.  Assuring equal protection for same-sex couples does not diminish the freedom of others to any degree.  Thus, same-sex couples’ right to marry seems to be a uniquely “free” constitutional right.  Hopefully, even those opposed to or uncertain about same-sex marriage will see it that way in the future.  Slip. op at 19.

      From there Judge Heyburn delivered the punch line, namely:

IT IS HEREBY ORDERED THAT to the extent Ky. Rev. Stat. §§ 402.005 and .020(1)(d) and Section 233A of the Kentucky Constitution denies 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.