Kentucky Marriage Cases - Appellate Update

On July 1, U.S. district judge John Heyburn ruled that Kentucky's ban on same-sex marriages was unconstitutional and can no longer be enforced. That ruling, in the case of Love v. Beshear, followed a similar ruling in February in the case of Bourke v. Beshear, which struck down Kentucky's refusal to recognize same-sex marriages from other jurisdictions.

When the Love opinion was issued, Bourke was already on appeal before the Sixth Circuit Court of Appeals, a federal appellate court just one step below the U.S. Supreme Court. Immediately following the Love ruling, the parties - the two plaintiff same-sex couples and Kentucky governor Steve Beshear - jointly moved to consolidate the cases in front of the appeals court.

That motion was granted. The Sixth Circuit then ordered an expedited briefing schedule, meaning the parties in the Love case had about a week each to file their principal briefs explaining the relevant legal issues the court should address. Typically, appellate briefs take weeks to research, write, and edit, but the Love parties were on a much tighter schedule.

That's because the Sixth Circuit had already scheduled oral arguments for August 6. Those oral arguments will actually include more than just Bourke and Love. All four states in the Sixth Circuit - Michigan, Ohio, Kentucky, and Tennessee - have same-sex marriage cases before the appeals court.

On August 6, the court will hear arguments in the cases of DeBoer v. Snyder (Michigan), Obergefell v. Himes and Henry v. Himes (Ohio), Bourke v. Beshear and Love v. Beshear (Kentucky), and Tanco v. Haslam (Tennessee).

On July 17, governor Beshear filed his Appellant Brief in the Sixth Circuit, making his case for why Judge Heyburn got it wrong on same-sex marriage. Beshear's brief in Love is generally similar to the brief he filed in Bourke v. Beshear. He made the following arguments:

  • The state of Kentucky has the ultimate authority to define its own marriage laws free from federal court intervention.
  • The 1972 case of Baker v. Nelson is binding precedent, preventing federal courts from hearing challenges to state same-sex marriage bans.
  • The "class of one" theory applies to the case, and same-sex couples are not similarly situated with opposite-sex couples, meaning they are not entitled to equal protection.
  • The district court was wrong to rule that gays and lesbians constitute a "suspect class" and a lower standard of judicial scrutiny is appropriate.
  • All individuals have a fundamental right to opposite-sex marriage, but not to same-sex marriage, so a lower standard of scrutiny is appropriate for that reason as well.
  • Kentucky has a legitimate government interest in promoting "natural" procreation and maintaining stable birth rates, and banning same-sex marriage furthers that interest.
  • Kentucky does not have to make precise distinctions between people or make perfect laws.
  • The district court used the wrong approach to decide these issues.

Beshear's brief in Love is generally similar to the brief he filed in Bourke v. Beshear.

Yesterday, the plaintiffs in Love filed their Appellee Brief before the Sixth Circuit.* The brief contests each of the above points, focusing primarily on the issues of fundamental rights and suspect classes. You can read the full brief here.

Next in the appellate process: Beshear gets to file a reply, and then oral arguments will be held as scheduled in Cincinnati on August 6.

* Full disclosure: I am the primary author of the brief, with extensive and excellent assistance from my co-counsel Laura Landenwich and Dan Canon.