Bourke/Love v. Beshear - Clarifying the Latest Developments

Lots of major developments in the case for marriage equality in Kentucky today. First, Jack Conway, Kentucky's Attorney General, gave an emotional speech during which he announced his decision not to appeal Judge John H. Heyburn's ruling in Bourke v. Beshear. Conway declared:

From a constitutional perspective, Judge Heyburn got it right, and in light of other recent federal decisions, these laws will not likely survive upon appeal. We cannot waste the resources of the Office of the Attorney General pursuing a case we are unlikely to win.

There are those who believe it’s my mandatory duty, regardless of my personal opinion, to continue to defend this case through the appellate process, and I have heard from many of them. However, I came to the inescapable conclusion that, if I did so, I would be defending discrimination.

That I will not do. As Attorney General of Kentucky, I must draw the line when it comes to discrimination.

That welcome announcement was followed almost immediately by a statement from Kentucky's Governor, Steve Beshear, that he would seek outside counsel to pursue an appeal despite the decision of the Attorney General. A bit of political and legal whiplash ensued among the press, the people of Kentucky, and the plaintiffs in the Bourke case.

The Governor issued a statement regarding his decision. I want to discuss certain points he makes because I feel they could be misleading to anyone without a background in constitutional law or the workings of the federal judiciary.

First, the Governor says:

Both of these issues, as well as similar issues being litigated in other parts of the country, will be and should be ultimately decided by the U.S. Supreme Court in order to bring finality and certainty to this matter.

"These issues" the Governor refers to are the recognition of valid, out-of-state same-sex marriages and the prohibition of in-state same-sex marriages. I disagree with the Governor that the U.S. Supreme Court is necessary to "bring finality and certainty to this matter." Judge Heyburn has already brought finality and certainty to the matter of recognition of out-of-state marriages. His opinion is clear. There is no risk that a decision in another state or another appellate Circuit court can upset or confuse the issues in the Bourke case: the constitutionality of Kentucky's marriage laws.

Without an appeal, Judge Heyburn's ruling stands as the law. Only through an appeal does his decision or its effect become confused in any way.

The Governor continues:

The people of this country need to know what the rules will be going forward. Kentucky should be a part of this process.

The rules are already quite clear. Judge Heyburn's opinion states them eloquently, and it relies on Supreme Court precedent in doing so. While there is a long-shot chance that the Supreme Court may somehow break from this precedent to declare the discriminatory marriage laws of other states as constitutional under Fourteenth Amendment, whether Kentucky should be part of that process is purely a political decision, not a legal one.

Finally, Beshear says:

Other Kentucky courts may reach different and conflicting decisions. There is already a lawsuit underway in Franklin Circuit Court, and other lawsuits in state and federal courts are possible.

The Franklin Circuit Court case is a state case that must now adhere to Judge Heyburn's ruling, which declares Kentucky's marriage laws unconstitutional under the federal Fourteenth Amendment. No state law provision can trump that. And "other lawsuits" in federal courts may be possible, but the possibility of another federal court (there is only one other federal district in Kentucky, the Eastern) ruling differently is remote at best. Remember that no federal district court in the entire country has ruled differently than Judge Heyburn since the decision of United States v Windsor last summer, despite many opportunities.

Political rhetoric aside, the current status of Kentucky's marriage equality battle is this:

  1. Beshear's private counsel must still file their appeal before the Sixth Circuit Court of Appeals. So far, no appeal has been filed.
  2. Beshear's counsel must still move for a stay of Judge Heyburn's final order in Bourke v. Beshear that will last for the duration of the appeal. While Heyburn could deny such a request, it would be highly unlikely since stays have been granted in Utah, Oklahoma, Virginia, and Texas.
  3. There is no way to tell how long the appellate process will take, or whether the Sixth Circuit will await a final order in the second part of the Kentucky marriage equality case and combine them (assuming one of the parties appeals that, as well).
  4. The second part of the case, Love v. Beshear, will continue before Judge Heyburn. Beshear and Conway still need to file their answer(s) to the complaint of two new couples, challenging the in-state ban on same-sex marriages in Kentucky.

Plaintiffs' counsel (including me) will continue to diligently and passionately advocate on behalf of our clients, and work to ensure that full marriage equality becomes a reality in Kentucky as soon as possible.

UPDATE:

From the Lexington Herald-Leader:

Help Wanted: Gov Beshear posts notice seeking private lawyers for same-sex marriage appeal. $125/hour. Bids due Friday.

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