Judicial Attention Shifts Back to Marriage Recognition as Federal Judge Nixes Kentucky Ban

One of the first federal court decisions to apply the Supreme Court’s June 26 DOMA ruling to the question of state marriage recognition came quickly last July, when U.S. District Judge Timothy S. Black in Ohio ordered the state to recognize a Maryland same-sex marriage for purposes of a death certificate. That court order was followed up by a detailed opinion in December in Obergefell v. Wymyslo, 2013 WL 6726688 (S.D. Ohio, Dec. 23, 2013), finding that a refusal by a state whose laws ban same-sex marriage to recognize such marriages contracted in other states violates the 14th Amendment, which requires states to provide “equal protection of the laws” and protects the right of married couples to “stay married” when they cross state lines.

Now a second federal judge, John G. Heyburn II, of the Western District of Kentucky, has followed Judge Black’s lead in Bourke v. Beshear, 2014 U.S. Dist. LEXIS 17457 (February 12, 2014), ordering that Kentucky recognize same-sex marriages contracted in other states and Canada. And, on the same day Heyburn ruled, married same-sex couples living in Missouri and Louisiana filed their own lawsuits, seeking rulings that their state governments also must recognize their marriages. These cases all have in common that the plaintiffs are already married and are challenging only their states’ refusal to recognize their marriages. They are not seeking a ruling that unmarried same-sex couples in their states have a right to marry.

Despite the narrow focus of these cases, nobody should be fooled about their effect, because most of the same legal arguments would be relevant in a case seeking the right to marry. Judge Heyburn left little doubt how that would be resolved. “The Court was not presented with the particular question whether Kentucky’s ban on same-sex marriage is constitutional,” he observed. “However, there is no doubt that Windsor [the Supreme Court’s ruling last summer striking down Section 3 of the Defense of Marriage Act] and this Court’s analysis suggest a possible result to that question.” One of the attorneys involved in the case told a local newspaper that she already has a plaintiff couple who want to get married in Kentucky, and they plan to file their lawsuit on Valentine’s Day, February 14.

In the Kentucky case, four married same-sex couples, two of which are raising children together, challenged a 1998 Kentucky statute and a 2004 Kentucky constitutional amendment, both providing that same-sex marriages would not be recognized in Kentucky. The constitutional amendment, part of a nationwide strategy by the Bush re-election campaign to pull conservative voters to the polls, passed with about 74% of the vote, although Judge Heyburn noted that only 53.6% of Kentucky’s registered voters cast a vote on the amendment issue, so one could not argue that a majority of the state’s voters had affirmatively voted for it. Nonetheless, it seems fair to say that the marriage amendment was overwhelmingly popular in Kentucky when it was passed almost ten years ago. Louisville attorneys Dawn Elliott and Shannon Fauver represent the plaintiffs.

To Judge Heyburn, this popularity was irrelevant, because the constitutional issue was clear and easily resolved in light of the trend in federal and state court rulings on marriage equality, especially since last June. Heyburn pointed out that his decision, which might have been considered on the cutting edge of judicial activism just a few years ago, is now very mainstream. “Nine state and federal courts have reached conclusions similar to those of this Court,” he wrote. “After the Massachusetts Supreme Judicial Court led the way by allowing same-sex couples to marry, five years later the Connecticut Supreme Court reached a similar conclusion regarding its state constitution on equal protection grounds. Other courts soon began to follow. Over the last several months alone, three federal district courts have issued well-reasoned opinions supporting the rights of non-heterosexual persons to marriage equality in similar circumstances. Indeed, to date, all federal courts that have considered same-sex marriage rights post-Windsor have ruled in favor of same-sex marriage rights. This Court joins in general agreement with their analyses.”

As to that analysis, Judge Heyburn took a conservative route to get to his conclusion. While conceding the possibility that this might be treated as a “heightened scrutiny” case, he was penned in by two facts: the 6th Circuit Court of Appeals, to which his decision would be appealed, has ruled as recently as 2012 that sexual orientation discrimination claims are not subject to heightened scrutiny, and the Supreme Court’s opinion in U.S. v. Windsor did not clearly say that the Court was using “heightened scrutiny” to strike down DOMA. Heyburn acknowledged that sexual orientation claims would probably qualify for heightened scrutiny if his decision started with a clean slate, but a trial court is bound by precedent from higher courts. In any event, he said, it really didn’t matter what level of scrutiny was used, because Kentucky’s refusal to recognize same-sex marriages was not supported by any constitutionally acceptable justification.

Heyburn found that in the Windsor case the Supreme Court made clear that although states have the primary authority to establish marriage laws, “those laws are subject to the guarantees of individual liberties contained within the United States Constitution.” In Windsor, the Supreme Court found “that by treating same-sex married couples differently than opposite-sex married couples, Section 3 of DOMA ‘violated basic due process and equal protection principles applicable to the federal government'” under the 5th Amendment. Since the same principles are applicable to state governments under the 14th Amendment, the Windsor court’s “reasoning establishes certain principles that strongly suggest the result” in the Kentucky case.

In Windsor, the Supreme Court emphasized that the purpose of DOMA was to discriminate against same-sex couples who were married under state law. A purpose to discriminate, as such, cannot be the basis of a state law, and it was clear that the purpose of Kentucky’s recognition ban was to discriminate. “Whether that purpose also demonstrates animus against same-sex couples may be debatable,” wrote Heyburn, “but those two motivations are often different sides of the same coin.” More significantly, the Supreme Court held that DOMA “demeans” same-sex couples by relegating their marriage to an inferior status. Heyburn found that the Supreme Court’s “analysis would seem to command that a law refusing to recognize valid out-of-state same-sex marriages has only one effect: to impose inequality.”

“From this analysis,” wrote Heyburn, “it is clear that Kentucky’s laws treat gay and lesbian persons differently in a way that demeans them. Absent a clear showing of animus, however, the Court must still search for any rational relation to a legitimate government purpose.” Undertaking that “search,” Judge Heyburn turned up empty-handed.

The only justification presented by the state was “preserving the state’s institution of traditional marriage,” which Heyburn found totally insufficient in this context, pointing out that many traditional laws have been invalidated by the courts in the name of equal protection, citing as a prime example Loving v. Virginia, the 1967 Supreme Court ruling striking down laws against interracial marriage. “Over the past forty years,” he wrote, “the Supreme Court has refused to allow mere tradition to justify marriage statutes that violate individual liberties.” He cited Justice Scalia’s dissenting comment that bans on same-sex marriage were about “moral disapproval of homosexuality,” which is not a permissible ground for discriminatory state polices in light of the Supreme Court’s rulings in the cases of Romer v. Evans, Lawrence v. Texas, and U.S. v. Windsor.

Unusually for this kind of lawsuit, the state had not made any arguments about “responsible procreation” or “child-rearing,” but an amicus brief from the Family Trust Foundation of Kentucky, Inc., made the usual arguments along these lines, which Heyburn also rejected. “The State, not surprisingly, declined to offer these justifications, as each has failed rational basis review in every court to consider them post-Windsor, and most courts pre-Windsor,” Heyburn observed. Indeed, in the Windsor opinion itself, Supreme Court Justice Anthony Kennedy evidently thought so little of those arguments that he didn’t even discuss them. “The Court fails to see how having a family could conceivably harm children,” Heyburn wrote, noting that in the Windsor case the Supreme Court said that children of same-sex couples are “humiliated” by the government’s denial of marriage rights to their parents. “As in other cases that have rejected the amicus’s argument,” Heyburn continued, “no one in this case has offered factual or rational reasons why Kentucky’s laws are rationally related to any of these purposes,” and he concluded, “the Court cannot conceive of any reasons for enacting the laws challenged here. Even if one were to conclude that Kentucky’s laws do not show animus, they cannot withstand traditional rational basis review.”

Heyburn concluded his opinion with what might be called “the civics lesson,” in which he tried to help Kentuckians understand the role of the court and why he was doing what he was doing. He pointed out the distinctly separate realms of personal religious belief and state policies. “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,” he wrote. “The beauty of our Constitution is that it accommodates our individual faith’s definition of marriage while preventing the government from unlawfully treating us differently. This is hardly surprising since it was written by people who came to America to find both freedom of religion and freedom from it.” He also pointed out that nothing in his opinion would require churches or other religious institutions to marry any particular couple, because of the constitutional guarantee of freedom of religion, and that the court had received no evidence that extending recognition to same-sex marriages would “harm opposite-sex marriages, individually or collectively.”

He also responded to the frequent criticism that such momentous issues should not be decided by a single judge, pointing out that actually in the end the decision as not being made by a single judge. Rather, the judge was applying principles that had been developed over decades by numerous judges and courts at all levels, including the Supreme Court in Windsor. Furthermore, the state could appeal his decision to the 6th Circuit and, if it does not win a reversal there, could petition the Supreme Court for review. Heyburn’s decision mentioned nothing about a stay, but he scheduled a conference with the attorneys in the case to discuss the implementation of his opinion, at which time one suspects that a request by the state for a stay pending review might be forthcoming. The 6th Circuit is already considering Ohio’s appeal of the prior marriage-recognition ruling. In that case, in light of the nature of the relief being sought (correctly identifying couples as married for purposes of a death certificate), the state had not sought a stay of the original order from last July.

Meanwhile, the new cases in Missouri and Louisiana filed on February 12 will move forward. In Louisiana, a federal lawsuit filed last year seeking the right to marry was dismissed by the federal court because the plaintiffs named only the Attorney General as defendant, and the judge determined that the Attorney General was immune from suit on this issue because his office played no role in administering marriage laws. This time, the plaintiffs are suing two state officials, Secretary Tim Barfield of the state’s Department of Revenue, and Devin George, the Louisiana State Registrar. They are clearly appropriate defendants, since Barfield’s office rejected joint tax returns from some of the plaintiffs and George’s office refused to record both members of a married same-sex couple as parents on a birth certificate for a child born to them. In the Missouri case, which was filed in a state court in Kansas City, the defendants include Gail Vasterling, the Director of the Missouri Department of Health and Senior Services, which administers birth certificates and marriage licenses, as well as the state’s governor Jay Nixon (a marriage equality supporter), the attorney general, Chris Koster, and the municipality of Kansas City. The Missouri case, Barrier v. Vasterling, was filed by the state and national ACLU, while the Louisiana case, Forum for Equality Louisiana v. Barfield, was filed by a New Orleans law firm, Stone Pigman Walther Wittmann LLC.

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