Judge: Gay marriage ban unconstitutional

The Record Staff

Supporters of traditional marriage held up signs on the West Lawn of the Capitol in Washington June 19 at the second annual March for Marriage. (CNS photo/Tyler Orsburn)
Supporters of traditional marriage held up signs on the West Lawn of the Capitol in Washington June 19 at the second annual March for Marriage. (CNS photo/Tyler Orsburn)

U.S. District Judge John G. Heyburn II has ruled that same-sex couples have a right to marry in Kentucky.

The ruling won’t take effect immediately, however, because — according to The Associated Press — it will be appealed. That means it is not yet clear when same sex couples could be issued marriage licenses.

Heyburn’s ruling was announced in the early afternoon of July 1, at a time when Archbishop of Louisville  Joseph E. Kurtz was vacationing and unavailable for comment.

The archdiocese’s Chancellor and Chief Administrative Officer said officials at the Chancery had not had time to read Heyburn’s ruling, and that others — including the Catholic Conference of Kentucky — would probably have an official statement later in the week after reading the Heyburn opinion.

According to The Courier-Journal and the AP, Heyburn said, in part that “In America, even sincere and long-held religious beliefs do not trump the constitutional rights of those who happen to have been out-voted.”

The judge in February had held that the state must recognize gay marriages performed in other states. And now the July 1 ruling makes same-sex marriages legal in the Commonwealth. Already one church, Highland Baptist Church in Louisville, has announced that its pastor, the Rev. Joe Phelps, will perform a gay wedding next May.

The couple to be married, David Bannister Jr., 29, and Steven Carr, 25, first approached the Rev. Phelps about getting married two-and-a-half years ago. And now they may be able to, if Heyburn’s ruling survives the appeal.

In his opinion, the judge noted that “since the Supreme Court’s landmark decision in United States v. Windsor (in 2013), every federal court to consider state bans on same-sex marriage and recognition has declared (the bans) unconstitutional.” Heyburn said he was finding the state’s position unconstitutional under the Equal Protection Clause of the U.S Constitution’s 14th Amendment.

The opinion noted that Timothy Love and Lawrence Ysunza, plaintiffs in the Kentucky case, “have lived together for 34 years. “On Feb. 13, 2014, they requested a Kentucky marriage license from the Jefferson County Clerk’s Office, presenting the requisite identification and filing fees. The Commonwealth refused to issue them a license because they are a same-sex couple. They allege that their inability to obtain a marriage license has affected them in many ways.

“For example, last summer Love underwent emergency heart surgery which had to be delayed in order to execute documents allowing Ysunza access and decision-making authority for Love. As another surgery for Love is imminent, the couple fears what will happen if complications arise.”

Heyburn also cited the situation of the plaintiffs in the case of Maurice Blanchard and Dominique James, who have lived together in Louisville for a decade. They, too, requested a marriage license from the Jefferson County Clerk’s office and were refused because they are a same-sex couple.

Kentucky Governor Steve Beshear released a statement that said:

“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 (Court of Appeals), where these same issues from other states are already scheduled to be decided. …”

Kentucky’s Third District Congressman John Yarmuth also released a statement that took a far different view from the governor’s. It said:

“Judge Heyburn’s ruling striking down Kentucky’s marriage ban affirms once again that there is no government interest in discrimination against same-sex couples. I am proud our Commonwealth has joined the growing list of states recognizing that the right to marry applies to all citizens.”

In past stories about the issue of gay marriage in the state, spokesmen for the governor have said only that traditional marriages “contribute to a stable birth rate and the state’s long-term economic stability,” according to The Courier-Journal.

“These arguments are not those of serious people,” Heyburn wrote in his opinion. “The only question that remains is whether the right (the) Plaintiffs seek to exercise is a fundamental right — a question that neither the Supreme Court nor the Sixth Circuit has answered.”

Heyburn, in his 19-page opinion, also noted that “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.”

He concluded by stating that sections of the Kentucky Constitution, in denying same-sex couples the right to marry in the state, “violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, and they are void and unenforceable.”

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