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New same-sex marriage right in Kentucky

Going beyond an earlier ruling in favor of existing same-sex marriages, but keeping a new decision somewhat limited, a federal judge in Kentucky on Tuesday struck down the state’s ban on gay and lesbians who want to wed.   U.S. District Judge John G. Heyburn II concluded that allowing such new marriages would not diminish anyone else’s rights “to any degree.”

The ruling continued the unbroken string of recent decisions by federal trial judges — since joined by the U.S. Court of Appeals for the Tenth Circuit — nullifying state bans on same-sex marriage.

The Kentucky judge based his decision solely on a need for equality, refusing to rule that same-sex couples have a “fundamental right” to marry.  He took his cue on the second point from Supreme Court Justice Anthony M. Kennedy’s majority opinion a year ago, in United States v. Windsor.   Some other judges have interpreted the Kennedy views more broadly, finding it does support a ruling that the fundamental right to marry must be open to gays and lesbians.

In the Windsor case, the Court struck down a key part of the federal Defense of Marriage Act, the provision barring already-married same-sex couples from receiving any federal benefits related to marriage.  Judge Heyburn noted that the lead opinion by Justice Kennedy did not discuss the fundamental right to marry.

Suggesting that Kennedy could have “much more easily” reached the result by finding that DOMA “implicated a constitutional right,” the judge found the “choice to remain silent on the question” to be significant.  He went on to say that it would be “a dramatic step” for him to rule that “the fundamental right to marry encompasses same-sex marriage,” and the judge opted to refrain from doing so.  “The Supreme Court,” he commented, “has not yet indicated a willingness to take” that step.

Judge Heyburn went on to rule that laws which treat homosexuals less favorably because of their sexual orientation should be judged by a more rigorous constitutional test — “heightened scrutiny.”  But he then found that the Kentucky ban on same-sex marriages was so completely lacking in any state interest that it would fail even the most lenient test — “rational basis.”

The judge said he “can think of no . . . conceivable legitimate reason” to justify Kentucky’s refusal to allow same-sex couples to get married.

In February, in an earlier phase of the judge’s review of the Kentucky ban, he ruled in February that it was unconstitutional for the state to refuse to recognize same-sex marriages of Kentuckians that were performed in other states.   That ruling is now under review by the U.S. Court of Appeals for the Sixth Circuit.



Recommended Citation: Lyle Denniston, New same-sex marriage right in Kentucky, SCOTUSblog (Jul. 1, 2014, 2:51 PM),