United States District Court, W.D. Kentucky
For Gregory Bourke, Michael Deleon, I.D., minor child by and through his parents and next freinds, Gregory Bourke and Michael Deleon, I.D., minor child by and through his parents and next freinds, Gregory Bourke and Michael Deleon, Plaintiffs: Daniel J. Canon, LEAD ATTORNEY, Laura E. Landenwich, Leonard J. Dunman, IV, Louis Paz Winner, Clay Daniel Walton Adams PLC, Louisville, KY; Dawn R. Elliott, Shannon Renee Fauver, LEAD ATTORNEYS, Fauver Law Office, Louisville, KY.
For Luther Barlowe, M.J.-C., Minor Child through their parents and next friends, Randell Johnson and Paul Campion, Randell Johnson, Jimmy Meade, Paul Campion, Tamera Boyd, Kimberly Franklin, T.J.-C., Minor Child through their parents and next friends, Randell Johnson and Paul Campion, T.J.-C., Minor Child through their parents and next friends, Randell Johnson and Paul Campion, Plaintiffs: J. Canon, LEAD ATTORNEY, Laura E. Landenwich, Leonard J. Dunman, IV, Louis Paz Winner, Clay Daniel Walton Adams PLC, Louisville, KY.
For United States of America, Miscellaneous: Jean Lin, Jennie L. Kneedler, LEAD ATTORNEYS, U.S. Department of Justice - Federal Programs, Washington, DC.
For Steve Breshear, in his official capacity as Govenor of Kentucky, Jack Conway, in his official capacity as Attorney General of Kentucky, Defendants: Brian Thomas Judy, LEAD ATTORNEY, Kentucky Cabinet for Health and Family Services-, Frankfort, KY; Clay A. Barkley, LEAD ATTORNEY, Kentucky Attorney General- Civil & Envirnonmental Law Div., Frankfort, KY.
For The Family Trust Foundation of Kentucky, Inc., Amicus: Stanton L. Cave, LEAD ATTORNEY, Lexington, KY.
John G. Heyburn II, United States District Judge.
Four same-sex couples validly married outside Kentucky have challenged the constitutionality of Kentucky's constitutional and statutory provisions that exclude them from the state recognition and benefits of marriage available to similarly situated opposite-sex couples.
While Kentucky unquestionably has the power to regulate the recognition of civil marriages, those regulations must comply with the Constitution of the United States. This court's role is not to impose its own political or policy judgments on the Commonwealth or its people. Nor is it to question the importance and dignity of the
institution of marriage as many see it. Rather, it is to discuss the benefits and privileges that Kentucky attaches to marital relationships and to determine whether it does so lawfully under our federal constitution.
From a constitutional perspective, the question here is whether Kentucky can justifiably deny same-sex spouses the recognition and attendant benefits it currently awards opposite-sex spouses. For those not trained in legal discourse, the questions may be less logical and more emotional. They concern issues of faith, beliefs, and traditions. Our Constitution was designed both to protect religious beliefs and prevent unlawful government discrimination based upon them. The Court will address all of these issues.
In the end, the Court concludes that Kentucky's denial of recognition for valid same-sex marriages violates the United States Constitution's guarantee of equal protection under the law, even under the most deferential standard of review. Accordingly, Kentucky's statutes and constitutional amendment that mandate this denial are unconstitutional.
No case of such magnitude arrives absent important history and narrative. That narrative necessarily discusses (1) society's evolution on these issues, (2) a look at those who now demand their constitutional rights, and (3) an explication of their claims. For most of Kentucky's history, the limitation of marriage to opposite-sex couples was assumed and unchallenged. Those who might have disagreed did so in silence. But gradual changes in our society, political culture and constitutional understandings have encouraged some to step forward and assert their rights.
In 1972, two Kentucky women stepped forward to apply for a marriage license. The Kentucky Supreme Court ruled that they were not entitled to one, noting that Kentucky statutes included neither a definition of " marriage" nor a prohibition on same-sex marriage. Jones v. Hallahan, 501 S.W.2d 588, 589 (Ky. 1973). The court defined " marriage" according to common usage, consulting several dictionaries. It held that no constitutional issue was involved and concluded, " In substance, the relationship proposed . . . is not a marriage." Id. at 590. This view was entirely consistent with the then-prevailing state and federal jurisprudence. See Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185, 187 (Minn. 1971), appeal dismissed for want of a substantial federal question, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972); Anonymous v. Anonymous, 67 Misc.2d 982, 325 N.Y.S.2d 499, 501 (N.Y. Spec. Term 1971). A lot has changed since then.
Twenty-one long years later, the Hawaii Supreme Court first opened the door to same-sex marriage. See Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44, 61 (Haw. 1993) (ruling that the state's prohibition on same-sex marriage was discriminatory under the Hawaii Constitution and remanding to allow the state to justify its position). The reaction was immediate and visceral. In the next few years, twenty-seven states passed anti-same-sex marriage legislation,
and Congress passed the Defense of Marriage Act (DOMA).
In 1998, Kentucky became one of those states, enacting new statutory provisions that (1) defined marriage as between one man and one woman, K.R.S. § 402.005; (2) prohibited marriage between members of the same sex, K.R.S. § 402.020(1)(d); (3) declared same-sex marriages contrary to Kentucky public policy, K.R.S. § 402.040(2); and (4) declared same-sex marriages solemnized out of state void and the accompanying rights unenforceable, K.R.S. § 402.045.
Five years later, the Massachusetts Supreme Judicial Court declared that the state's own ban on same-sex marriage violated their state constitution. Goodridge v. Dep't of Pub. Health, 440 Mass. 309, 798 N.E.2d 941, 969 (Mass. 2003). In May 2004, Massachusetts began marrying same-sex couples. In response, anti-same-sex marriage advocates in many states initiated campaigns to enact constitutional amendments to protect " traditional marriage." 
Like-minded Kentuckians began a similar campaign, arguing that although state law already prohibited same-sex marriage, a constitutional amendment would foreclose any possibility that a future court ruling would allow same-sex marriages to be performed or recognized in Kentucky. See S. Debate, 108th Cong., 2nd Sess. (Ky. 2004), ECF No. 38-6. The legislature placed such an amendment on the ballot. It contained only two sentences:
Only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.
Ky. Const. § 233A. Consequently, the amendment and Kentucky's statutes have
much the same effect. On November 2, 2004, approximately 74% of participating voters approved the Amendment.
Kentucky's same-sex marriage legal framework has not changed since. In the last decade, however, a virtual tidal wave of legislative enactments and judicial judgments in other states have repealed, invalidated, or otherwise abrogated state laws restricting same-sex couples' access to marriage and marriage recognition.
In many respects, Plaintiffs here are average, stable American families.
Gregory Bourke and Michael Deleon reside in Louisville, Kentucky and have been together for 31 years. They were lawfully married in Ontario, Canada in 2004 and have two minor children who are also named Plaintiffs: a 14-year-old girl; and a 15-year-old boy. Jimmy Meade and Luther Barlowe reside in Bardstown, Kentucky and have been together 44 years. They were lawfully married in Davenport, Iowa in 2009. Randell Johnson and Paul Campion reside in Louisville, Kentucky and have been together for 22 years. They were lawfully married in Riverside, California in 2008 and have four minor children who are named Plaintiffs: twin 18-year-old boys; a 14-year-old boy; and a 10-year-old girl. Kimberly Franklin and Tamera Boyd reside in Cropper, Kentucky. They were lawfully married in Stratford, Connecticut in 2010.
Collectively, they assert that Kentucky's legal framework denies them certain rights and benefits that validly married opposite-sex couples enjoy. For instance, a same-sex surviving spouse has no right to an inheritance tax exemption and thus must pay higher death taxes. They are not entitled to the same healthcare benefits as opposite-sex couples; a same-sex spouse must pay to add their spouse to their employer-provided health insurance, while opposite-sex spouses can elect this option free of charge. Same-sex spouses and their children are excluded from intestacy laws governing the disposition of estate assets upon death. Same-sex spouses and their children are precluded from recovering loss of consortium damages in civil litigation following a wrongful death. Under Kentucky's workers compensation law, same-sex spouses have no legal standing to sue and recover as a result of their spouse's fatal workplace injury.
Moreover, certain federal protections are available only to couples whose marriage is legally recognized by their home state. For example, a same-sex spouse in Kentucky cannot take time off work to care for a sick spouse under the Family Medical Leave Act. 29 C.F.R. § 825.122(b).
In addition, a same-sex spouse in Kentucky is denied access to a spouse's social security benefits. 42 U.S.C. § 416(h)(1)(A)(i). No one denies these disparities.
Finally, Plaintiffs assert additional non-economic injuries as well. They say that Kentucky's laws deny them " a dignity and status of immense import," stigmatize them, and deny them the stabilizing effects of marriage that helps keep couples together. Plaintiffs also allege injuries to their children including: (1) a reduction in family resources due to the State's differential treatment of their parents, (2) stigmatization resulting from the denial of social recognition and respect, (3) humiliation, and ...