Kentucky must recognize same-sex marriages conducted in other states U.S. District Judge John Heyburn ruled today. The case was brought by four same-sex couples who had all been validly married in other states and challenged both the Kentucky state constitutional provision and statutes that bar any legal recognition under Kentucky law for a same-sex marriage. The relationships of the couples were long-standing, three of them having existed for 22 years or more.

Judge Heyburn ruled that the challenged Kentuckylaw provisions violated these individuals' rights to equal protection of the law secured them by the 14th amendment to the United States Constitution. The opinion is elegant in both language and analysis. To the sole justification proffered for the challenged laws by the state – the preservation of traditional marriage – Judge Heyburn responds as follows:

That Kentucky's laws are rooted in tradition, however, cannot alone justify their infringement on individual liberties. Over the past 40 years, the Supreme Court has refused to allow mere tradition to justify marriage statutes that violate individual liberties. Justice Kennedy restated the principal most clearly: "the fact that the governing majority in the state has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice." Justice Scalia was more blunt, stating that "preserving the traditional institution of marriage is just a kinder way of describing the states moral disapproval of same-sex couples.

Usually, as here, the tradition behind the challenged law began at a time when most people did not fully appreciate, much less articulate, the individual rights in question. For years, many states had a tradition of segregation and even articulated reasons why it created a better, more stable society. Similarly, many states deprived women of their equal rights under the law, believing this to properly preserve our traditions. In time, even the most strident supporters of these views understood that they could not enforce their particular moral views to the detriment of another's constitutional rights. Here as well, sometime in the not too distant future, the same understanding will come to pass.

Judge Heyburn also acknowledges the reaction perhaps "even angry" reaction that the decision may provoke. Stating "these concerns are understandable and deserve an answer" he offers the following:

Our religious beliefs and societal traditions are vital to the fabric of society. Though each faith, minister, and individual can define marriage for themselves, at issue here are laws that act outside that protected sphere. Once the government defines marriage and attaches benefits to the 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. 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.

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.


No one has offered any evidence that recognizing same-sex marriages will harm opposite-sex marriages, individually or collectively. One's belief to the contrary, however sincerely held, cannot alone justify denying a selected group their constitutional rights.


...the Constitution, including its equal protection and due process clauses, protects all of us from government action at any level, whether in the form of an act by a high official, a state employee, a legislature, or a vote of the people adopting a constitutional amendment.


Contrary to how it may seem, there is nothing sudden about this result. The body of constitutional jurisprudence that serves as its foundation has evolved gradually over the past forty-seven years. The Supreme Court took its first step on this journey in 1967 when it decided the landmark case Loving v. Virginia, which declared that Virginia's refusal to marry mixed-race couples violated equal protection. The Court affirmed that even areas such as marriage, traditionally reserved to the states, are subject to constitutional scrutiny and "must respect the constitutional rights of persons."

The case is styled Bourke v. Beshear, No 3:13-CV-750-H, U.S. District Court, Western District of Kentucky at Louisville; the opinion issued by Judge Heyburn may be read here.

Nine other state and federal courts have reached similar rulings. Ultimately, as Judge Heyburn observed,the issue of whether same-sex couples have a constitutional right to marry will be settled by the United States Supreme Court. The Supreme Court's decision last year in United States v. Windsor largely foretells the result one that will simply apply for same-sex couples the legal recognition and dignity that equal protection of law requires.

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