Couple challenges Kentucky law against gay marriage

Jessie Halladay | USA TODAY

LOUISVILLE, Ky. — A couple who married in Ontario in 2004 filed a federal lawsuit Friday challenging the constitutionality of Kentucky laws that don't recognize same-sex marriages from other states.

Following a U.S. Supreme Court decision last month giving full federal recognition to legally married gay couples, Gregory Bourke and Michael De Leon of Louisville decided the time was right to ask a federal judge to require Kentucky to give same-sex couples married outside the state the same rights as heterosexual couples.

"There's no reason why we should be second-class citizens," De Leon said. "We should be at the table with everybody else."

Kentucky has had a ban on same-sex marriage and civil unions in its constitution since 2004.

Earlier this week, a federal judge in Cincinnati ruled that two men's out-of-state marriage is legal in Ohio, another state that bans same-sex marriage and civil unions in its constitution. But the judge emphasized that his ruling was specific to that couple, who had married July 11 in Maryland. One of the men has a fatal disease and wanted his partner to be buried next to him in the family's plot in a historic cemetery.

Bourke and De Leon, both now 55, wed in 2004 in a ceremony overlooking Niagara Falls. The couple already had been together for nearly two decades and met as students at the University of Kentucky. They already had two children.

Having children made the couple realize the limitations they faced because they weren't married.

To adopt their children, one had to be the official adoptive parent and the other a legal guardian.

De Leon, a database administrator at General Electric, became the adoptive parent. Bourke, an applications consultant at Humana, filed separate paperwork to become the children's legal guardian. They decided to marry in Canada to add another layer of legal protection for their 15-year-old boy and 14-year-old girl.

The suit is the first challenge to Kentucky law since the U.S. Supreme Court struck down the federal Defense of Marriage Act, a federal law blocking married same-sex couples from receiving the same benefits as heterosexual spouses, exactly one month ago.

"That was probably the most hopeful day we've had in our 31 years of being together," Bourke said.

Shannon Fauver and Dawn Elliott, law partners in Louisville, said the Supreme Court ruling also was encouraging and decided that someone should challenge Kentucky's constitutional ban on same-sex marriage. So, the partners began looking for a couple to work with on a lawsuit and found De Leon and Bourke.

"We thought somebody should do it," Fauver said. "It's our duty as lawyers to try to right wrongs when we see them."

The lawsuit narrowly seeks to have Kentucky recognize same-sex marriages performed elsewhere and offer those couples the same benefits available to all married couples in Kentucky. The suit does not seek to have gay marriages performed in the state, a step that she said likely would need a separate lawsuit.

News of the men's lawsuit gives hope to nurse Bridget Pitcock of Louisville, who recently married her partner in Maryland.

While she said that she and her partner, Meg Hancock, have a marriage that federal authorities recognize, that "still doesn't guarantee us a lot right now."

Pitcock said she and Hancock want the rights other married couples have, including being able to file taxes jointly.

Elliott said marriage would allow same-sex couples to protect their children if one partner lacks health insurance and prevent children from being removed from their home if something happened to the biological or legally recognized parent.

Challenges to same-sex marriage bans have filed in recent weeks in Arkansas, New Mexico and Pennsylvania. The American Civil Liberties Union has said challenges also are expected in Hawaii, Michigan, Nevada and Virginia.

Kentucky Gov. Steve Beshear, state Attorney General Jack Conway and Jefferson County Clerk Bobbie Holsclaw are named as defendants in the suit. Officials at the Kentucky Attorney General's office and the governor's office said they have not seen the lawsuit but plan to review it.

"It's sad to see these people keep pushing this agenda because the state has spoken on this issue," said state Rep. Stan Lee, a Republican from Lexington, Ky., who has fought unsuccessfully to end partnership benefits for gays at Kentucky universities. "If we live in a Christian nation, then we need to stand by the moral absolutes," including that marriage is determined by God to be between one man and one woman.

Martin Cothran, a spokesman for the Family Foundation of Kentucky that backed the same-sex marriage ban, said the two men have "a hard case to make."

Cothran noted that voters passed the amendment in 2004 by an overwhelming margin.

"We would oppose any effort to change what Kentuckians decided on that," he said.

Bourke is no stranger to challenging restrictions on gays and lesbians. In February he started an online petition urging the United Way to denounce the Boy Scouts' ban on gays as Scouts or leaders. It targeted the United Way because it is a major financial contributor to the Boy Scouts.

Bourke was an assistant scoutmaster for his son's Scout troop for several years until he was forced to resign after informing Scout leaders about his sexual orientation. His role had included coordinating and supervising camping trips and helping boys achieve merit badges.

His 15-year-old son, Isaiah, is close to becoming an Eagle Scout, he said.

Jessie Halladay also writes for The (Louisville, Ky.) Courier-Journal. Contributing: The Associated Press