June 26, 2013, is a date that will resonate for a long time for both opponents and proponents of same-sex marriage. On this date, the United States Supreme Court issued two historic rulings that simultaneously gave gay rights activists their most influential "win" up until that point, while it provided opponents of same-sex marriage with a welcome delay in finding a constitutional right to same-sex marriage. See Hollingsworth v. Perry, 133 S. Ct. 2652 (2013); see also, United States v. Windsor, 133 S. Ct. 2675 (2013). By taking a Solomonic approach, one can assume that the Court hoped to address the most discriminatory issues facing the country (the federal government could no longer treat legally-confected same-sex marriages differently from heterosexual marriages) while allowing state-by-state determinations as to whether the creation of same-sex marriages should proceed in the political process, the state legislatures, or through public referenda. Such an approach would allow for more widespread acceptance and provide for legal evolution parallel to society's evolving views, rather than cause animosity among certain opponents at "judicial activism." Justice Ruth Bader Ginsburg has herself mused on just such a concern regarding the Roe v. Wade decision (suggesting it went "too far, too fast"), despite her numerous published opinions in favor of abortion rights.
But if the Supreme Court had hoped for a measured, piecemeal development in the laboratory of states, with the political process taking the lead, its hope may have been misplaced. In his dissenting opinion in Windsor, Justice Antonin Scalia predicted that the Court's overturning of the Defense of Marriage Act "[makes it] inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status." Windsor, 133 S. Ct. at 2709. Following the Supreme Court's twin decisions, organizations and individuals in states across the country have filed suits in state and federal courts, relying at least in part on language contained in the cases, particularly Windsor, to overturn their state "mini-DOMA" laws. In addition, since the Supreme Court's decisions, legislatures in Hawaii and Illinois legalized same-sex marriage, and state courts in New Jersey and New Mexico ordered that state officials issue marriage licenses to same-sex couples. Federal courts have issued opinions overturning mini-DOMAs in six states since Windsor: Kentucky, Oklahoma, Ohio, Texas, Utah and Virginia. This article will briefly discuss the federal court decision in Kentucky, which focused on the recognition of same-sex marriages in Kentucky, rather than the right to enter into the marriage in Kentucky. Although limited to recognition, this decision addresses many of the same legal arguments other courts are considering on the issue of marriage confection.
What actually happened in Perry and Windsor to cause this flood of litigation? On the one hand, the Supreme Court declined to consider the merits in Perry, holding that the third party interveners lacked standing to defend Proposition 8, which amended California's Constitution to prohibit same-sex marriage. Proposition 8 was passed by voters shortly after California's Supreme Court held that barring same-sex couples from marriage violated the state's constitution. Although the plaintiffs named the state as the officials responsible for carrying out the ban, the defendants declined to appeal the district court's order finding the ban to be unconstitutional, prompting the proponents of Proposition 8 to intervene.
On the other hand, in Windsor, the Court considered whether the Bipartisan Legal Advisory Group (BLAG), the legal arm of the United States Congress, could rightfully intervene and defend DOMA when the Department of Justice, at President Barack Obama's order, refused to do so. Although seemingly similar to the issue in Perry, the Windsor Court found that the BLAG, unlike the Proposition 8 proponents in Perry, satisfied the requirements of standing, and upon getting to the merits, Justice Kennedy in a forceful opinion declared that Section 3 of DOMA unconstitutionally denies the liberty protected by the Due Process Clause of the Fifth Amendment.
Amid growing public acceptance of same-sex marriage, has the Supreme Court let the genie out of the bottle? Looking at recent developments, it appears that may very well be the case. Only time will tell how the courts of appeal will handle these weighty issues, and the Supreme Court may find itself in the uncomfortable position of dealing with these issues again far sooner than it imagined. Kentucky's case is illustrative of the problems Windsor has created.
Four same-sex couples who validly married outside of Kentucky filed a lawsuit in the United States District Court for the Western District of Kentucky on July 26, 2013. The plaintiffs sought to have their marriages recognized in spite of Kentucky's ban on same-sex marriage, which includes a ban on recognizing legal, out-of-state marriages. Ky. Rev. Stat. Ann. § 402.040(2). In holding that Kentucky's ban on recognizing legally-confected out-of-state same-sex marriages violates the United States Constitution, District Court Judge John G. Heyburn began his order with a short history of same-sex marriage litigation and legislation, both in Kentucky and nationally, which proves useful in understanding his analysis. Bourke v. Beshear, No. 3:13-cv-750, 2014 WL 556729 (W.D. Ky. Feb. 12, 2014).
Kentucky's path in the same-sex marriage battle is longer than many may realize. As early as 1972, two Kentucky women attempted to apply for a marriage license. They ultimately lost their battle, as the Kentucky Supreme Court ruled they were not entitled to a marriage license, because Kentucky statutes neither defined marriage nor did they prohibit same-sex marriage. Jones v. Hallahan, 501 S.W.2d 588, 589 (Ky. 1973). Given this lack of statutory guidance, the Kentucky Supreme Court defined marriage according to common usage, and because it found that no constitutional issue, it held "[i]n substance, the relationship proposed [by petitioners] . . . is not a marriage." Jones, 501 S.W.2dat 590. As Judge Heyburn noted in his decision overturning Kentucky's marriage ban, "[t]his view was entirely consistent with the then-prevailing state and federal jurisprudence." Bourke, 2014 WL 556729, at *1, citing Baker v. Nelson, 191 N.W.2d 185, 187 (Minn. 1971), appeal dismissed for want of a substantial federal question, 409 U.S. 810 (1972); Anonymous v. Anonymous, 325 N.Y.S.2d 499, 501 (N.Y. Spec. Term 1971). Judge Heyburn succinctly concluded his history of Kentucky's early same-sex marriage litigation by stating "[a] lot has changed since then." Bourke, 2014 WL 556729, at *1.
Discussing the development of same-sex marriage case law, Judge Heyburn traced the arc from the Hawaii Supreme Court decision, Baehr v. Lewin, 852 P.2d 44, 61 (Haw. 1993), which many associate with the beginning of same-sex marriage litigation (as well as the inspiration for DOMA at the federal level, and many state "mini-DOMA" laws), to Kentucky's passage of several statutory provisions that define marriage as between one man and one woman, prohibit marriage between members of the same sex, declare same-sex marriages contrary to Kentucky public policy, and declare same-sex marriages solemnized out of state void and the accompanying rights unenforceable. Bourke, 2014 WL 556729, at *2. Following the passage of Kentucky's statutory provisions, in 2003 the Supreme Judicial Court of Massachusetts declared that the state's same-sex marriage ban violated its state constitution. Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 969 (Mass. 2003). Subsequently, Massachusetts began marrying same-sex couples, and "[i]n response, anti-same-sex marriage advocates in many states initiated campaigns to enact state constitutional amendments to protect 'traditional marriage.'" Bourke, 2014 WL 556729, at *2. Kentucky was no different. In 2004, the Kentucky legislature placed a constitutional amendment on the ballot that prohibited same-sex marriage creation or recognition. Ky. Const. § 233A. With 53.6 percent of Kentucky voters participating, the ballot measure passed on November 2, 2004, with approximately 74 percent of voters approving the measure. Bourke, 2014 WL 556729, at *2.
While recognizing Kentucky's legal strictures, the Bourke court noted that in the decade since, "a virtual tidal wave of legislative enactments and judicial judgments in other states have repealed, invalidated, or otherwise abrogated state laws restricting same-sex couples' access to marriage and marriage recognition." The court described the couples as "average, stable American families," and discussed the denial of all of the rights and benefits enjoyed by opposite-sex couples. Bourke, 2014 WL 556729, at *2. The court highlighted various federal law issues that arise from Kentucky's failure to recognize same-sex marriage, along with noneconomic injuries such as humiliation, stigmatization, and possible harms from only one parent being listed as an adoptive parent. Bourke, 2014 WL 556729, at *3.
The court determined that of all of the plaintiffs' claims, "the Fourteenth Amendment's Equal Protection Clause provides the most appropriate analytical framework." Neither side disputed that same-sex couples are treated differently under Kentucky law than those in comparable opposite-sex marriages, leading the court to decide "whether the Kentucky Constitution and statutes violate Plaintiffs' federal constitutional rights." Bourke, 2014 WL 556729, at *3.
The majority opinion in Windsor did not clearly explain what standard of review should apply (a problem all of the federal courts have dealt with); some of Justice Kennedy's language suggested rational basis review, Windsor, 133 S. Ct. at 2696, while Justice Scalia's dissent stated that the court "does not apply strict scrutiny, and [although] its central propositions are taken from rational basis cases . . . the Court certainly does not apply anything that resembles that deferential framework." Windsor, 133 S. Ct. at 2706 (emphasis in original). Although the Ninth Circuit recently held that heightened scrutiny is appropriate in SmithKline Beecham Corp. v. Abbott Laboratories, Nos. 11-17357, 11-17373, 2014 WL 211807, at *9 (9th Cir. Jan. 21, 2014), the Kentucky court declined to apply heightened scrutiny because the Windsor Court did not clearly state that the nonrecognition of marriages under Section 3 of DOMA implicated a fundamental right. It therefore found rational basis review to be appropriate. Bourke, 2014 WL 556729, at *5.
In searching for a rational relationship, the court acknowledged that majorities in a democracy "routinely [enact their] own moral judgments as laws. Kentucky's citizens have done so here … [however] those laws are subject to the guarantees of individual liberties contained within the United States Constitution." Bourke, 2014 WL 556729, at *6 (citing Windsor, 133 S. Ct. at 2691; see, e.g., Loving v. Virginia, 388 U.S. 1, 12 (1967)). Judge Heyburn felt compelled to follow Justice Kennedy's majority opinion in Windsor, concluding that "[h]is reasoning about the legitimacy of laws excluding recognition of same-sex marriages is instructive." Bourke, 2014 WL 556729, at *6.
In analyzing Kentucky's laws, Judge Heyburn considered the law's purpose, as the court did in Windsor. Judge Heyburn explained, "the actual purpose of Kentucky's laws is relevant to the extent that their purpose and principal effect was to treat two groups differently." Bourke, 2014 WL 556729, at *6. He found that the legislative history demonstrated intent to permanently deprive same-sex couples of legal recognition, which "demeans one group by depriving them of rights provided for others." Bourke, 2014 WL 556729, at *7. Borrowing from Windsor, Judge Heyburn concluded that Kentucky's nonrecognition laws "burden the lives of same-sex spouses by preventing them from receiving certain state and federal governmental benefits afforded to other married couples . . . [The laws] instruct all . . . officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others."As a result, the laws "[have] only one effect: to impose inequality." Bourke, 2014 WL 556729, at *7 (citing Windsor, 133 S. Ct. at 2693).
Absent a clear showing of animus, which the court did not find, the court was bound to "search for any rational relation to a legitimate government purpose." The state justified its laws by explaining, "the Commonwealth's public policy is rationally related to the legitimate government interest of preserving the state's institution of traditional marriage." While conceding that these laws further Kentucky's public policy and are based on tradition, Judge Heyburn acknowledged that tradition cannot alone justify infringement on individual liberties. Bourke, 2014 WL 556729, at *7.
Judge Heyburn did not simply rely on Windsor and pre- and post-Windsor cases finding that same-sex marriage bans violate the Equal Protection clause. He went further. He "[felt] a special obligation to answer some of those concerns [that the court clashes with the majority opinion of Kentuckians, in both society and faith]." Bourke, 2014 WL 556729, at *9. As to the argument that the law supports "traditional marriage," the court held 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." The court explained that the Constitution was written "by people who came to America to find both freedom of religion and freedom from it." Bourke, 2014 WL 556729, at *10.
After the judge issued his ruling, Kentucky's Attorney General, Jack Conway, announced at a press conference (which was at times emotional) that he could no longer defend Kentucky's prohibition on same-sex marriage, having determined after reading Judge Heyburn's ruling that Kentucky's constitutional amendment does not comport with the United States Constitution. Kentucky Governor Steve Beshear immediately hired outside counsel to handle the appeal and requested a stay, which Judge Heyburn reluctantly granted, noting that while the governor "has not made a strong showing of a likelihood of success on the merits . . . [and even though t]he district courts are so far unanimous . . . [thus far] no court of appeals has issued an opinion. So, one must admit that ultimate resolution of these issues is unknown." Bourke, 2014 WL 556729, at *13. The appeal is currently pending, with no dates currently set for briefing or argument. The stay on Judge Heyburn's ruling is indefinitely granted pending the outcome of the appeal.
Judge Heyburn's opinion overturning the same-sex marriage recognition ban, as well as the attorney general's decision to recuse himself, will likely continue to reverberate as other courts grapple with these issues. The same issues of fundamental due process and equal protection have proven a weighty concern for each of the district courts that have considered these issues. The Supreme Court may have hoped that the political process would have resulted in communities coalescing further on these issues, but with the consistent judicial disapproval of same-sex marriage bans, the Court may have to revisit this much sooner than it had planned. As public opinion has seen a noteworthy shift, concerns of judicial activism diminish. While predicting future Supreme Court decisions is a fool's errand, the prospect of another Supreme Court decision in the next couple of years undoubtedly has supporters of same-sex marriage rights cautiously optimistic, particularly given the swell of judicial and legislative victories following the Windsor ruling.
Keywords: litigation, LGBT, Kentucky, same-sex marriage, unconstitutional, marriage confection
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