Bourke v Beshear - Kentucky's Response

On December 16, the plaintiffs in the case of Bourke v. Beshear (represented by me and other attorneys) filed a Motion for Summary Judgment and Immediate Injunctive Relief. The case is a legal challenge to Section 2 of the federal Defense of Marriage Act as well as Kentucky's laws (two statutes and a constitutional amendment) that allow the Commonwealth to ignore valid same-sex marriages from other states and countries. Our clients are all legally married homosexual couples who were married in other states and Canada but do not enjoy the same rights and privileges that married heterosexuals enjoy in Kentucky.

For clarification, we are not challenging Kentucky's prohibition of in-state same-sex marriages, just its refusal to recognize valid same-sex marriages from other jurisdictions.*

In our brief, we argued that DOMA and the Kentucky laws violate the U.S. Constitution. Specifically, we argued that the laws violated the following constitutional provisions:

  • Due process and equal protection as guaranteed by the Fifth and Fourteenth Amendments
  • Freedom of association and religion as guaranteed by the First Amendment
  • The Full Faith and Credit Clause, found in Article IV
  • The Supremacy Clause, found in Article VI

Our brief was thirty-one pages long, containing an extensive discussion of controlling U.S. Supreme Court precedent and established constitutional law principles to bolster our arguments in favor of marriage equality. We submitted our motion and brief on December 16 and patiently awaited the arrival of January 13, the deadline for the Commonwealth of Kentucky's response.

Legal challenges to state bans of same-sex marriage are currently raging all across the United States. Most recently, a federal district court judge ruled that Oklahoma's prohibition of same-sex marriage is unconstitutional. Before that, another federal judge struck down Utah's ban. And before that, a federal judge ruled that Ohio must now recognize valid same-sex marriages from other states, despite its constitutional prohibition of such (the Ohio case is procedurally identical to our own challenge here in Kentucky).

In these other legal battles, the respective state governments have put up strong fights against their challengers. The state of Utah, for instance, has vowed to appeal the district court ruling all the way to the U.S. Supreme Court, if necessary. In Oklahoma, the district court docket reached nearly 300 filings, including extensive briefs in defense of the gay marriage ban by both the state government and ironically-named groups like the Alliance Defending Freedom.

We were unsure what to expect from the Kentucky attorney general's office. Would we face a long, complex defense of the existing discriminatory law? Would we see the usual appeals to "the will of the people" and "think of the children?" We got our answer this past Monday. Late into the evening of January 13, the Commonwealth's Response was electronically filed and made available to us.

The Response is somewhat surprising in that it is just eight pages long, compared to our thirty-one. Also surprising is that it contains just one attorney signature, that of Assistant Attorney General Brian Judy. Missing is any mention at all of Attorney General Jack Conway (a rumored future gubernatorial candidate) or attorney of record Clay Barkley.

The content of the Response is also curious. It is divided into seven sections, one of which is a simple Conclusion. The other six include what is effectively a preliminary disclaimer entitled "Defendants Must Support the Kentucky Constitution." Essentially this section says "no matter what we may think about the law, we're sworn to uphold it."

Next up is a section of five paragraphs stating that Kentucky's prohibitions of same-sex marriage recognition are simply valid exercises of its sovereign authority. Most of the argument here is devoted to distinguishing the recent case of Windsor v. United States, which erased Section 3 of the Defense of Marriage Act and required the U.S. federal government to recognize same-sex marriages from states where they are valid.

Third, Kentucky begins to address the meat of our argument. Their Response claims in the third section that the state's discriminatory marriage laws "do not violate due process or equal protection." In defense of this proposition, Kentucky offers just three paragraphs, mostly relying upon the fact that "the Sixth Circuit has held that no fundamental right or suspect class is implicated under the present circumstances." Of course, the Sixth Circuit hasn't heard a challenge to "the present circumstances" yet, but Kentucky's statement isn't technically untrue. Kentucky also argues that "preserving the institution of traditional marriage" is a legitimate public policy and therefore the laws pass constitutional muster. We tackled this topic at length in our brief.

Fourth, Kentucky offers two paragraphs to contest our argument that Kentucky's same-sex marriage laws were religiously-based and motivated and therefore in violation of the Establishment Clause of the First Amendment. According to the Commonwealth, legislators quoting the Christian Bible on the state senate floor is not really a problem because the laws "merely express the state of Kentucky's sovereign right to regulate domestic relations, without regard to any particular religion."

Fifth, Kentucky argues, in just one paragraph, that because no case law has found freedom of association to include same-sex marriage, there can be no First Amendment violation. We discuss at length in our brief that the freedom of association clearly includes the fundamental concept of marriage, regardless of the sexual orientation of its members.

Finally, the Commonwealth spends three paragraphs disputing that Full Faith and Credit requires recognition of valid out-of-state marriages, on the basis that DOMA Section 2 gives them a pass. Of course, we challenge the constitutionality of that law, as well. And, predictably, Kentucky relies upon the vague and unevenly-enforced "public policy exception" to Full Faith and Credit. Essentially, the exception allows State A to ignore marriages from State B if those out-of-state marriages would be intolerable to State A. For example, if Kentucky prohibits children under ten to be married, but Indiana allows it, Kentucky may refuse to recognize the marriage of a ten year-old Indiana resident who moves to Kentucky. "Public policy," however, isn't an automatic safe harbor - a state's public policy is still generally bound by the U.S. Constitution. After all, it could be the "public policy" of Kentucky that African Americans aren't allowed to marry white people, but that doesn't mean such laws would survive constitutional challenges.

Ultimately, Kentucky's Response to our Motion is underwhelming. Having seen no legal argument we hadn't already addressed in our original Motion, we went ahead and filed a simple, one-page Reply with the hope that it would expedite the judge's ruling. Our original deadline for filing a Reply was January 23, with an Order from the judge to follow.

Whether or not Judge Heyburn decides to rule early, we anxiously await an Order that would push Kentucky one step further in the inevitable march to marriage equality. We have high hopes.

*For more information on Bourke v. Beshear, see this article and this interview by my co-counsel Dan Canon.