Same-Sex Marriage Victories Spread South To Kentucky

The string of victories for same-sex marriage continues as a Federal Judge rules that the Commonwealth of Kentucky must recognize out-of-state same-sex marriages.


In addition to last night’s decision holding Virginia’s ban on same-sex marriage to be unconstitutional, this week has also saw a significant, albeit partial victory in the marriage equality fight in the Commonwealth of Kentucky, which itself used to be part of what was considered Virginia territory until it became the 15th state in 1792. There, a Federal District Court Judge ruled in favor of the Plaintiffs in a lawsuit seeking to force the state to recognize the validity of same-sex marriage performed in a state where the marriage was perfectly legal. Following a trend that has been sweeping the country since the Supreme Court’s decision in United States v. Windsor, the Court ruled that the state must recognize the validly performed marriage of a sister state regardless of its own laws on same-sex marriage:

A federal judge in Kentucky ruled Wednesday that the commonwealth must recognize same-sex marriages performed in states where the unions are legal.

It is the latest in a string of judicial victories for proponents of same-sex marriage following the U.S. Supreme Court’s ruling in June in United States v. Windsor. The justices struck down part of the Defense of Marriage Act and said the federal government must recognize legal marriages between those of the same sex.

In Wednesday’s ruling, U.S. District Judge John G. Heyburn II said Windsor was only the latest in a series of Supreme Court rulings that has incrementally advanced the gay rights movement.

“Each of these small steps has led to this place and this time, where the right of same-sex spouses to the state-conferred benefits of marriage is virtually compelled,” Heyburn wrote.

The case before Heyburn did not require him to rule on whether Kentucky must issue marriage licenses to gay couples. But he said “there is no doubt that Windsor and this court’s analysis suggest a possible result to that question.”

Daniel J. Canon, a Louisville lawyer who represented the plaintiffs, said the statute that Heyburn found violating the U.S. Constitution’s guarantee of equal protection bans same-sex marriage as well as the recognition of such unions. That could open the door to marriages in the state, he said.

Heyburn was asked by four same-sex couples — married in either Canada or U.S. states that allow such unions — to make Kentucky recognize their marriages.

“It is clear that Kentucky’s laws treat gay and lesbian persons differently in a way that demeans them,” Heyburn wrote.

Striking them down, he said, will “make real the promise of equal protection under the law. It will profoundly affect validly married same-sex couples’ experience of living in the commonwealth and elevate their marriage to an equal status in the eyes of state law.”

In a statement, Kentucky Attorney General Jack Conway (D) did not offer a rousing defense of the law — “I did my duty and defended Kentucky’s constitutional amendment in federal court” — and noted that Heyburn said he would hold an additional hearing before issuing a final order.

“It would be inappropriate to comment further about the future of this case” until then, the statement said.

Heyburn noted that every federal judge who has considered challenges to state bans on same-sex marriage recognition has come to the same conclusion.

Federal judges in Utah and Oklahoma have struck down the bans in those states, although both decisions are being appealed. So is a decision by a federal judge in Ohio that the state must recognize for the purposes of a death certificate a union performed elsewhere.

There are dozens of lawsuits challenging similar bans around the country; Nevada recently announced that it would not defend that state’s ban in a federal court challenge.

 Lyle Denniston summarizes the ruling:

Aside from relying upon the Windsor decision, Judge Heyburn said he was following “a virtual tidal wave” of new laws and court rulings that have given same-sex couples a right to marry or to have their existing marriages formally recognized.

Taking note of a trend that has grown more obvious across the country, the Kentucky jurist commented that there have been nine state and federal court rulings in favor of same-sex marriages, and that in “the last several months alone,” three federal judges “have issued well-reasoned opinions” supporting the right of same-sex couples “to marriage equality.”

He traced much of this to a series of Supreme Court rulings advancing gay rights — written by Justice Anthony M. Kennedy — and culminating in the Windsor decision last June.

Although the judge said he was bound by precedent in his judicial region (the federal Sixth Circuit) to apply only the easiest-to-meet constitutional standard — that is, “rational basis” review — he said that Kentucky’s refusal to give equal treatment to validly married same-sex Kentuckians could not satisfy even that low-level test.  He canvassed all of the arguments made for treating same-sex married couples differently, and found none of them to have merit.

A noteworthy part of Judge Heyburn’s opinion was a studied effort to explain to those who would be offended by his ruling, especially on the basis of their religious or cultural beliefs, why he was led to his decision as a constitutional matter.  That section of the ruling read very much like a basic civics lesson about the way that the Constitution’s protection of individual rights may sometimes override traditional moral and political preferences, and even trump the expressed wishes of a political majority.

Since 1998, Kentucky has had state laws against same-sex marriage and against recognizing out-of-state same sex marriages.  And, in 2004, Kentucky became one of a lengthy list of states to put a ban on same-sex marriage into the state constitution, in the wake of the first state supreme court ruling in favor of same-sex marriage — in Massachusetts.  Kentucky’s amendment was approved at the polls with more than seventy-four percent in favor.

Perhaps the most interesting thing about the Judge’s opinion in this case is what it doesn’t address as much as what it does. After you read through the entirity of Judge Heyburn’s opinion, which I’ve embedded below, you’ll perhaps be struck by the fact that it makes no mention of Section 2 of the Defense of Marriage Act. That provision of DOMA, which was not affected at all by the Supreme Court’s decision in the Windsor case, provides that no state shall be required to recognize a same-sex marriage that might otherwise be valid under the laws of another state. This also occurred in a case arising out of Ohio in which a Federal Judge ruled that Ohio must recognize a Maryland same-sex marriage for the purpose of noting the marital status of an Ohio resident who had died after getting legally married in Maryland. As I noted at the time, when a Court doesn’t address a specific legal argument in an opinion as important as this it usually means that the issue wasn’t raised in the briefs and arguments raised by the parties during the course of the proceeding. Once again, I find that someone puzzling only because it would seem to me that Section Two would be something that the state, in its defense of the law, would bring up just as a matter of course. Given the fact that the Judge based his ruling exclusively on the Constitution and specifically the 14th Amendment, of course, discussion of the DOMA issues is largely beside the point since the Constitution trumps Federal law. Nonetheless, its almost as if, by omission or by conscious choice, this section of DOMA is essentially becoming a dead letter.

However that particular point of law is resolved, though, the broader implications of Judge Heyburn’s decision are clear. Once again, in a string that has remained unbroken since the Supreme Court’s Windsor ruling, a Federal Judge has found at least a portion of a states law against same-sex marriage unconstitutional. Additionally, the grounds on which the ruling was made could equally be applied to a case involving a Kentucky couple that was challenging the validity of the state’s law against same-sex marriage directly. While I have no direct knowledge as to whether or not there is such a case currently pending, you can rest assured that one will be in the near future if it isn’t already pending in one of the Federal Courts in the Bluegrass State. In the meantime, there are similar cases pending throughout the United States, including one that was argued in Texas just this week that may result in a ruling in the very near future. For the meantime, though, the Kentucky case is, along with the Virginia case, symbolic in that it marks the first time that a southern state has seen its bar against same-sex marriage overturned even just in part. If we start seeing the same thing in state’s like Texas, then we will know that the world really has changed for good.

Here’s the opinion:

Bourke Et Al v. Beshear Et Al by Doug Mataconis

FILED UNDER: Uncategorized, , , , , , , , , , , , , , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. rudderpedals says:

    I thought I saw something in there about an amicus raising DOMA section 2 . As you noted the Court didn’t reach it because it didn’t need to. Where do you see this going in the 6th cir?

    I thought pages 20 and on were just a joy to read. This after a shirt on fire week at the salt mine.

  2. Stonetools says:

    The dam has burst, and justice is rolling down like the waters. I wonder who Senator McConnell is going to defend his anti gay stance in the upcoming election. Grimes is going to say -rightly- that she and the Democrats are on the right side of history, and that McConnell represents the discredited past.

  3. Motopilot says:

    Meanwhile, in Kansas, this bill was just passed overwhelmingly in their House of Representatives:

  4. James Pearce says:

    @Motopilot: That bill is ridiculous, and the state Senate intends to kill it.

  5. Opponents have yet to prevail in a single case. At every opportunity to present some rational argument, it always boils down to intense dislike, most often for “religious reasons” that pose problems only for the believers and no one else. And this has shown not to be enough.

    Now conservatives in red-states can only watch, gob-smacked, as the constitutional amendments they were sold by the last remnants of the purveyors of the Southern Strategy fall like dominoes. And now there is now no one left to blame, as those people are long gone having pocketed campaign donations raised on opposition to gay anything.

    It last worked nationally in 2004, and to the nation’s credit, likely never again.

  6. OzarkHillbilly says:

    I know that this is just a quibble, but for the record? Kentucky is not a “southern state”. For starters, it is NORTH of the Mason Dixon line. For seconds, it was a UNION state. I know this oversimplifies history, but just like Missouri, Kentucky had complicated relationships with both the Union AND the Confederacy, BUT STILL…

    Appalachia or no, as old Abe said, “I hope to have God on my side, but I must have Kentucky.” And he did.

  7. Moosebreath says:


    “For starters, it is NORTH of the Mason Dixon line”

    No, it isn’t. The Mason-Dixon line marked the Northern and Eastern borders of Maryland.

  8. Gromitt Gunn says:

    The Census Bureau considers Kentucky to be a southern state. It is part of the Southern Region and the East South Central District, along with TN, AL, and MS. The Counsel of State Governments includes Kentucky in its Southern division.

    Kentucky was one of the 17 states whose anti-miscegenation laws were ruled unconstitutional by Loving v. Virginia.

    Kentucky also had a Confederate government-in-exile and was represented in the Confederate Congress, and had a full slate of Jim Crow laws, mandating segregation not only in schools, but in public transportation, park, marriage, sports arenas, dance halls, bathrooms, dining facilities, waiting rooms, and nursing homes.

    Restaurants with separate dining areas for blacks and whites had to make sure, by law, that the dishes and utensils were segregated.

    Kentucky may not have formally joined the Confederacy, but its outlook has been Southern for quite some time.