Kentucky Governor Steve Beshear has decided to appeal the ruling of U.S. District Court judge John Heyburn in the case of Bourke v. Beshear: the Kentucky statutes and constitutional amendment which deny recognition to valid, out-of-state same-sex marriages are invalid under the Fourteenth Amendment. Beshear made the decision to appeal despite Kentucky Attorney General Jack Conway's emotional announcement that he would not do so.
Beshear has maintained that his primary purpose for appeal is to avoid "legal chaos." In his words:
"We’ve got to get this matter settled, and it’ll be settled more quickly if we move ahead without any contradictory opinions in this state and get this opinion up on appeal and find out what the law is going to be.”
Beshear has repeated this concern for "contradictory opinions," and has cited an existing suit in Franklin Circuit Court (a state, not federal, court) involving the same laws at issue in Bourke.
Is there really a threat of contradictory opinions that could cause "legal chaos?" Perhaps an explanation of how lawsuits are brought and how judicial opinions are created will shed light on this claim by the Governor. There are two primary legal concepts at work here: standing and supremacy. (Bear with me, we're about to take a wild procedural ride).
To bring a valid lawsuit against a statute or constitutional amendment, a person must have "standing" to do so. In very general terms, standing requires harm. A plaintiff must have suffered some harm caused by the law or laws being challenged. For example, the Bourke plaintiffs brought suit on the basis that Kentucky's marriage laws (enforced by the state government) caused them harm by violating their constitutional rights to equality, due process, and others. A violation of constitutional rights by a state government is a harm recognized by federal courts.
As we all know, Judge Heyburn ruled that the Bourke plaintiffs' constitutional rights were in fact harmed by Kentucky's marriage laws. To prevent further harm, Judge Heyburn invalidated the laws which prohibit recognition of valid, out-of-state same-sex marriages. Effectively, those laws no longer exist, and cannot be enforced by the state government.
Judge Heyburn is a judge in the Western District of the Kentucky federal court system. The only other current challenge to Kentucky's marriage laws is the case of Love v. Beshear, which is also in Judge Heyburn's Western District court. For there to be a contradictory opinion that could actually cause "legal chaos," a case would also have to be active in the Eastern District under a different judge.
There are two obstacles to that happening. The first is common sense. What homosexual couple would try to pursue another suit where the chance of a contradictory opinion was even a remote possibility? Same-sex spouses married in other states but now living in Kentucky have already won. There would be nothing gained from suing in a different federal jurisdiction when a favorable - and binding - ruling has already been achieved.
The second obstacle is standing. With those laws now invalidated, married same-sex couples can no longer allege to be suffering at the hands of state government. State government must now recognize their marriages. The harm has been eliminated. Conversely, proponents of Kentucky's discriminatory marriage laws cannot bring suit to challenge Judge Heyburn's ruling because they lack standing; they suffer no harm recognized by federal courts. Despite the claims of preachers and newspaper comment trolls, the state government not doing something you want them to do is not actually a form of harm. A challenge on the general basis that you're harmed by the recognition of a form of marriage to which you're personally opposed is not something federal courts will entertain.
So it is incredibly unlikely - perhaps even impossible - that a contradictory opinion could be delivered by another federal judge in Kentucky. But what about in Kentucky state courts?
That's where supremacy comes in. While state courts are allowed to hear challenges to state laws brought under the federal constitution, those state courts cannot rule independently of federal court precedent. And if they do, they run the very real risk of eventually being struck down by the U.S. Supreme Court. Also, the Supremacy Clause of the U.S. Constitution is clear: where a federal law (or court opinion) is in direct conflict with a state law (or court opinion), the federal government (or judiciary) wins.
One additional claim by Governor Beshear is worth discussing. He has argued that the U.S. Supreme Court will make the ultimate decision on discriminatory state marriage laws. Generally speaking, he's correct. But there are several facts and strong probabilities that work against Beshear's reasoning that the Bourke case should be appealed.
First, there are already several other marriage equality cases being heard by federal appeals courts. In the Tenth Circuit, the marriage equality cases of Utah and Oklahoma are on appeal. In the Fourth Circuit is the Virginia case. And in the Fifth Circuit is a case from Texas. With the governments of Utah, Oklahoma, and Texas already determined to fight for inequality all the way to the U.S. Supreme Court, there is no risk that the underlying legal questions will somehow not reach the highest court of the land. There is no reason Kentucky must be among them. The underlying question at the heart of all these cases - are same-sex marriage bans unconstitutional under the Fourteenth Amendment? - will be answered in the next two years, nationwide, no matter what.
Second, there is a very, very low probability that the U.S. Supreme Court will rule in favor of same-sex marriage bans. Despite the transparent support of Justices Scalia, Thomas, Alito, and Roberts, marriage bans like those in Kentucky, Utah, or Oklahoma will almost certainly fall to the pen of Justice Kennedy, the "swing vote" behind the ruling which started the dominoes falling: United States v. Windsor. Every federal district court judge who has ruled against same-sex marriage bans across the country - including Judge Heyburn in the Western District of Kentucky - has relied on the language of Windsor to do so. It seems highly unlikely that Justice Kennedy will change his mind in the next two years and uphold discrimination in direct contradiction to his own previous opinion.
What that means for Kentucky is that Judge Heyburn's ruling will stand the test of time. There is no threat of "legal chaos." The only possible chaos will come from Governor Beshear's decision to appeal. Because of that decision, Kentucky same-sex spouses continue to be harmed by unconstitutional Kentucky laws for no reason but politics.
Full disclosure for new readers: I am one of the six attorneys who represent the plaintiffs in both Bourke v. Beshear and Love v. Beshear.