Court: KY Must Recognize Gay Marriages From Other States

This is an interesting development. For the first time that I’m aware of, a state has been ordered by a federal court to recognize same-sex marriages performed in other states. U.S. District Judge John G. Heyburn II ruled that the U.S. Constitution requires such recognition.

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…

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. In addition, a same-sex spouse in Kentucky is denied access to a spouse’s social security benefits. No one denies these disparities.

Interestingly, the court did not decide the case on the grounds of the Full Faith and Credit clause but purely on the basis of the Equal Protection Clause of the 14th Amendment, saying, “If equal protection analysis decides this case, the Court need not address any others.” The court also decided not to apply heightened scrutiny in the case but determined that the state’s actions failed even on a rational basis review. Most of the court’s reasoning is based on Justice Kennedy’s majority opinion in the DOMA case.

In Windsor, Justice Kennedy found that by treating same-sex married couples differently than opposite-sex married couples, Section 3 of DOMA “violate[d] basic due process and equal protection principles applicable to the Federal Government.” His reasoning establishes certain principles that strongly suggest the result here.

The first of those principles is that the actual purpose of Kentucky’s laws is relevant to this analysis to the extent that their purpose and principal effect was to treat two groups differently…The legislative history of Kentucky’s laws clearly demonstrates the intent to permanently prevent the recognition of same-sex marriage in Kentucky…

The second principle is that such an amendment demeans one group by depriving them of rights provided for others…

Under Justice Kennedy’s logic, Kentucky’s laws burden the lives of same-sex spouses by preventing them from receiving certain state and federal governmental benefits afforded to other married couples…

Those laws “instruct[] all . . . officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others.” Indeed, Justice Kennedy’s analysis would seem to command that a law refusing to recognize valid out-of-state same-sex marriages has only one effect: to impose inequality.

The effect of the ruling in Windsor has been astonishingly fast and complete. Expect howls of outrage. You can read the full ruling here.

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  • Alverant

    The ruling shouldn’t be surprising. If the legal age to get married in one state is 15 and it’s 18 in another and a 15 year old gets married in one state then moves to the other where he/she can’t get married, the state with the higher age STILL has to recognize it. So why should it be any different for same sex marriages?

  • Chiroptera

    Interestingly, the court did not decide the case on the grounds of the Full Faith and Credit clause but purely on the basis of the Equal Protection Clause of the 14th Amendment….

    Is it all that interesting? As far as I know, Full Faith and Credit has never been used in the US to defend any kind of marriage equality. As far as I know, every protection of the right of marriage (and I’m also thinking of Loving) has relied on the 14th Amendment.

    But I have no legal training, so I am open to correction if I am wrong.

  • d.c.wilson

    If the Supreme Court upholds this ruling, it’ll mean de facto marriage equality for all states. Even if their home state won’t issue a marriage license, a same sex couple can just travel to one that will and their he state will have to recognize it.

  • badgersdaughter

    Wait, in Kentucky you can add your spouse to your work health insurance for nothing? Here in Texas, my health insurance deduction went up when I added my perfectly legal and well-attested husband. Perhaps they didn’t recognize a wedding performed in Scotland. 😀

  • Cuttlefish

    Not a lawyer here–how is this different from the Ohio ruling by judge Black?:

  • anubisprime

    d.c.wilson @ 3

    If the Supreme Court upholds this ruling, it’ll mean de facto marriage equality for all states.

    Is it likely to come before the Supreme court?…well I suppose a bigot can elevate the question to the Supremes!

    But what would be the point ?…this ruling seems based on a Supreme court judge ruling so it would be damnably odd if said bigot got joy in the Supreme court by gaining a nee to the ruling on this.

    But on the other hand it would seem a valid tactic by the pro camp to in fact get it back to the Supremes chamber…and get the whole kit and kaboodle ratified nationally…and there you would have it damn near game over!…or is that simplistic?

  • DonDueed

    While it’s irrelevant to the legal issue, I have to think that businesses would applaud this decision (and others like it). The unequal standing of same-sex marriage would pose a significant problem for recruiting of employees from out of state, since there would be strong disincentives for any person in such a marriage from accepting a job in Kentucky (or other state with similar laws).

    It may not be a huge problem now, but it will only become more significant as marriage equality spreads. On the other hand, the whole issue is transient, as seems ever more clear — SSM will be nationwide within a few more years (or maybe decades, in the deepest enclaves of right-eousness).

  • Trebuchet

    @6: I think a massive Supreme Court case is inevitable. I’m not especially optimistic about the outcome.

  • vmanis1

    There’s a move currently by some Republicans (and one deluded Democrat) to pass legislation that removes federal marriage recognition from married couples in equality states. This would have the feds send a letter to Alice and Brenda (or Albert and Bob) in Cherry Hill, NJ, saying `Congrats, you’re married’. When they move across the river to Philadelphia, the feds now mail another letter, `Sorry, you aren’t and never were married’. A year later, the couple moves back across the river to Camden, NJ, and now they get another letter, `Oops, you were married after all’.

    These clowns seem to have no sense of governmental gravitas.

  • tiredofusernamerules

    As a Kentucky resident, I will be interested to see whether the Commonwealth appeals. Neither Governor Beshear nor Attorney General Conway can run again for those offices. Beshear likely will never run for any other office, while Conway has indicated he intends to run for governor. Same-sex marriage still is unpopular in Kentucky in recent polls, and there is talk of attempting to pass another amendment to the Kentucky Constitution to prohibit it (for what purpose, in light of this decision, I don’t know). Conway, however, is not a natural politician. He ran a terrible campaign for US Senate against Rand Paul, and now is our AG. He has not taken courageous stands on anything, and seems to be very much in favor of the prevailing winds. I have a feeling Beshear will decline to appeal and that Conway will file an appeal and lose.

  • d.c.wilson


    It depends on how hard the anti-marriage equality folks want to push it. I can’t see them giving up without at least trying to appeal the decision.

  • jarjarbinks

    @Alverant, Chiroptera, and others

    Alverant, that is actually a common misconception about the Full Faith and Credit Clause. That clause has, historically, only applied to “full and final judgments on the merits” to use the specific phrase in the legal textbooks. And even then, if there is a strong public policy in the state against such recognition then recognition can be withheld.

    An example for illustration

    You make a deal for bulk purchases of marijuana in Colorado (your reasons for doing so are beyond the scope of this hypothetical). After receiving the last shipment you refuse payment and move across state lines to Kansas leaving no significant assets in CO. The dealer then sues you in KS court claiming breach of contract. The contract is valid, but KS has a strong public policy against marijuana (namely, it’s illegal). Therefore, a KS court could refuse to enforce such a contract.

    So actually, a state that had a law prohibiting marriage until the age of 18 could (if they so chose) not recognize a marriage between a 15 year old and someone else. This leads into the questions raised by Chiroptera and Cuttlefish. The Ohio case is a very narrow ruling. In Ohio the state had a law on the books that banned recognition of various types of marriage. If I recall correctly (I’m not going to reread the case right now, sorry) they banned first cousin marriage, marriage within certain ages, and same-sex marriages. Despite having this law on the books for decades (obviously adding same-sex marriage to it in later years) they had never actually enforced it. In other words Ohio had a practice of recognizing first cousin marriages performed in states where that was legal. The judge found that just suddenly resurrection a law that had lain dormant for decades was mere animus against a hated group of people. If Ohio had been enforcing the other provisions of that law, even intermittently, the case would have been different.

    We had battles like this about numerous issues in this country. Because it has been so long since we’ve had a significant divide on marriage law (the last one being mixed-race marriage back in the 60s) people tend to assume that the Full Faith and Credit Clause actually covers marriage licenses. It does not. It doesn’t even cover your drivers license, the recognition of other state’s drivers licenses is just a matter of course. It makes things simple. There might be other laws about it, but it’s not in the Federal Constitution.

    What is interesting about the debate is that this idea seems to be breaking down in the same-sex marriage cases. Certain judges seem to be throwing the old rule (only required to enforce full and final judgments on the merits) out. I’m not against the policy that the Full Faith and Credit Clause covers marriage licenses, drivers licenses, etc., but it would be a new interpretation of that clause.

    Hope that helps.

  • sprocket

    I’m really enjoying the delicious slice of Schadenfreude.

  • Alverant

    #12 JJB

    Interesting. If you’re right, I stand corrected. I thought there were already laws address the different age of consents in different states. Personally I don’t like the fact that something legal in one state is illegal in another. We’re supposed to be one nation indivisible, not 50 mini-nations in a tight alliance.

  • John Pieret

    More good news:

    U.S. District Judge Arenda L. Wright Allen has struck down Virginia’s voter-approved constitutional amendment banning same-sex marriage and recognition of such unions performed elsewhere in its entirety.

  • jarjarbinks

    @ Alverant @14

    The argument between your point of view, and those who argue that the Federal Constitution is a limited one allowing states to have divergent laws is a long one. We had a civil war arguing over that, and we passed the 14th amendment as a result, we didn’t do away with the federal system.

  • jarjarbinks

    An introduction to the concept from a reliable source, if you’d like to read more.

  • marcus

    They said i was mad when I predicted that the Windsor ruling would create this sort of situation. A situation where one state would be unable to deny marriage rights to a same-sex couple legally married in another state. Who’s mad now?


  • marcus

    PS Happy Valentine’s Day to all you lovers out there, whatever your orientation or preference.

    Love is winning!

  • Donnie

    Does anyone have any thoughts on retroactive application specifically for Sally Ride and others who have a federal pension but their surviving spouse could not claim it?

  • Childermass

    The ruling shouldn’t be surprising. If the legal age to get married in one state is 15 and it’s 18 in another and a 15 year old gets married in one state then moves to the other where he/she can’t get married, the state with the higher age STILL has to recognize it. So why should it be any different for same sex marriages?

    That says it all right there. I suppose a state could get desperate and refuse all marriage that were not legal in their own state. If it is a sham (i.e. only enforced for gays) the courts can call it a sham and require recognition. If it is not a sham, then all couples would have to document the legality of their marriage which won’t exactly be popular.

    And there is another issue. Even if we allow a state to refuse tax benefits to marriages it does not recognize, I don’t think that it can be applied to those visiting from other states. Under full faith and credit, I can’t even remotely think of anything that remotely justify denying a spouse to visit an injured spouse in the hospital.

  • anubisprime


    i It depends on how hard the anti-marriage equality folks want to push it. I can’t see them giving up without at least trying to appeal the decision.

    I would imagine some jeebus tainted lawyer will file it…probably pro bono…but with this ruling grounded in Justice Kennedy’s previous findings, would the other judges in the court weigh in and start muddying the water with their own warped rulings in direct opposition to Kennedy their colleague?…thinking of Scalia here…would not the Supreme court impeach itself..and who gets final word…I thought it the Supremes?

    From an admittedly outsider’s POV it would seem the anti’s are being spanked everywhere, it is really crumbling the bigotry in state laws…up and down.

    I cannot imagine the Supremes in fighting when the wind seems firmly set in one direction…a result no one could really have guaranteed even 5 yrs ago, but the Supremes seem partially guided by public sentiment on the issue before them, and that seems to be in favour of SSM.

    Sorry if I appear naive but Brit law is subtly different and the way they go about it.