Ky. moves quickly to adopt gay marriage ruling

In a historic ruling reshaping the definition of the American family, the Supreme Court on Friday invalidated bans on same-sex marriage in Kentucky and across the country, holding that gays and lesbians have the constitutional right to marry.

The court ruled 5-4 that states must grant same-sex couples licenses to marry and recognize such marriages performed in other states.

Writing for the majority, Justice Anthony Kennedy said the same-sex marriage bans worked "a grave and continuing harm" against gays and lesbians and disrespected them.

"Their hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions," he said for the court. "They ask for equal dignity in the eyes of the law. The Constitution grants them that right."

The court reversed last November's ruling in which the 6th U.S. Court of Appeals upheld bans on gay marriage in Kentucky, Michigan, Ohio and Tennessee.

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The decision is a victory for six gay and lesbian couples from Kentucky and reinstates two rulings by late U.S. District Court Senior Judge John G. Heyburn II of Louisville.

Timothy Love, who has lived with his partner, Lawrence Ysunza, for 35 years — and previously was denied a marriage license by the Jefferson County Clerk's office, said: "I can't tell you how happy we are. We never thought we'd see this day in our lifetimes."

Dan Canon, one of the lawyers for the petitioners, said the ruling affirms that "our clients and couples like them all across the county are ... loving couples just like anybody else and they are deserving of the equal dignity that the Constitution gives all of us."

Chris Hartman, director of the Fairness Campaign, said the decision will "change the landscape of LGBT rights in America. ... It is a jubilant moment."

Gov. Steve Beshear, who hired a private law firm to appeal Heyburn's decisions after Attorney General Jack Conway declined to do so, said in a statement that he'd instructed state agencies, as well as county clerks, to comply immediately with the court's ruling.

"Effective today, Kentucky will recognize as valid all same-sex marriages performed in other states and in Kentucky," Beshear said.

As he has stated previously, Beshear said, "Kentuckians, and indeed all Americans, deserved a final determination of what the law in this country would be, and that is the reason we pursued an appeal to the U.S. Supreme Court. Today's opinion finally provides that clarity."

Conway said the ruling justifies his decision to "not waste the scarce resources of this office pursuing a costly appeal that would not be successful." In a statement he noted his office defended the ban until Heyburn struck it down.

"The ruling does not tell a minister or congregation what they must do, but it does make clear that the government cannot pick and choose when it comes to issuing marriage licenses and the benefits they confer," Conway said.

In four separate dissents, the court's conservative members — Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. — said the court usurped a power that belongs to the people.

Reading a dissent from the bench for the first time in his tenure, Roberts said, "Just who do we think we are?"

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He also wrote: "If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today's decision. ... Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it."

Scalia said the court had descended from "disciplined legal reasoning ... to the mystical aphorisms of the fortune cookie."

In a statement, Louisville Mayor Greg Fischer called the decision "a monumental win for equal treatment under the law" and said he was pleased Louisville couples were part of it.

But Senate Majority Leader Mitch McConnell, R-Ky., said the American people, through the democratic process, should be able to determine the meaning of "this bedrock institution in our society." He also said he believes "America is big enough to accommodate the views of all citizens — that's why going forward I hope the courts will continue to defend the important principle of religious liberty for all, regardless of their views on marriage."

Martin Cothran, senior analyst for the Family Foundation of Kentucky, which promoted the 2004 state constitutional amendment banning gay marriage or its recognition, said the ruling "has nothing to do with interpreting the Constitution" and "everything to do with an elite caste of judges who think they have the power to rewrite it."

The Rev. R. Albert Mohler Jr., president of the Southern Baptist Theological Seminary, who helped lead the culture war against gay marriage, said the decision places every religious institution in legal jeopardy that intends to "uphold the convictions held by believers for millennia." He also said the court eventually will have to face the "court of divine judgment."

The decision, which some scholars have called the most important civil rights ruling in a generation, comes only 11 years after the first legally recognized same-sex marriages took place, in Massachusetts.

The court concluded marriage is a fundamental right because it is "inherent in the concept of individual autonomy" and a "keystone to our social order."

The majority opinion, in which Kennedy was joined by Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor, says the right of same-sex couples to marry is protected by both the equal protection clause of the Constitution and its guarantee of due process.

Even before the ruling, gays and lesbians had the right to marry in 37 states and the District of Columbia, and nearly 72 percent of the U.S. population lived in those states.

But federal and state courts granted gays the right to marry in 26 of those states, versus only three that adopted it by popular vote and eight through their state legislatures. That meant a decision by the Supreme Court against gay marriage would have dramatically pared back where it is legal.

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The lead case decided by the court arose in 2013 when Jim Obergefell of Cincinnati married his longtime partner, John Arthur, in Maryland, where such marriages were legal. When Arthur died of Lou Gehrig's disease, Ohio refused to list Obergefell as his spouse on the death certificate, and he sued.

The Kentucky case was set in motion in February 2014 when Heyburn ruled for four gay and lesbian couples, saying that Kentucky must recognize same-sex marriages performed in states where that is legal.

"One's belief to the contrary, however sincerely held, cannot alone justify denying a selected group their constitutional rights," he wrote, becoming the first federal judge in the South to throw out a gay marriage ban.

Five months later, ruling for two gay couples, Heyburn struck down Kentucky's ban on licensing gay marriages in the state.

Rejecting Beshear's argument that the ban is needed because only opposite-sex couples can procreate and maintain the state's birth rate and economy, Heyburn said "these arguments are not those of serious people." Even if the state has a legitimate interest in promoting procreation," he said, it never explained how the exclusion of same-sex couples from marriage has "any effect whatsoever on procreation among heterosexual spouses."

Heyburn's rulings were put on hold pending the outcome of appeals of cases from Kentucky, Ohio, Tennessee and Michigan, and last November, in a 2-1 ruling, a panel of the 6th U.S. Circuit Court of Appeals became the first federal appeals court to rule against gay marriage.

Writing for the majority, Judge Jeffrey Sutton said "a dose of humility makes us hesitant to condemn as unconstitutionally irrational a view of marriage shared not long ago by every society in the world, shared by most, if not all, of our ancestors, and shared still today by a significant number of the states."

The decision propelled the issue back before the Supreme Court, which had to rectify it against other circuit courts that found a constitutional right to same-sex marriages. Those included the 7th Circuit Court of Appeals, which in September 2014 affirmed the freedom to marry in Indiana and Wisconsin.

The case already has figured in the Kentucky governor's race and is likely to continue to do so. Republican nominee Matt Bevin has issued a statement accusing Conway of abandoning his oath of office and asking how voters can "trust him not to break his oath again."

Conway called the law against same-sex marriage the last vestige of widespread discrimination in America and said he refused to continue defending the ban, after Heyburn's first decision, because he feared he'd regret it for the rest of his life. "I know where history is going on this," he later told Time magazine. "I know what was in my heart."

Beshear, who on election to his first term as governor in 2008 signed an executive order prohibiting discrimination against state employees who are gay or transgender, refused to say where he stood personally on gay marriage.

Kentucky voters by a 75 percent margin in 2004 approved a constitutional amendment saying that "only a marriage between one man and one woman shall be valid or recognized as a marriage" in the state, and in a recent Bluegrass Poll more than half of registered voters continued to oppose it.

But as Heyburn wrote in his opinion, the Constitution's protection of individual rights may sometimes override traditional moral and political preferences, and even trump the expressed wishes of a political majority.

While "religious beliefs ... are vital to the fabric of society," he wrote in the first case, "assigning a religious or traditional rationale for a law does not make it constitutional when that law discriminates against a class of people without other reasons."

Publicly defending his decision later, he said "history is littered with traditions that we have later decided weren't very good ones."

Heyburn died on April 29, the day after the cases were argued at the Supreme Court.

Rep. John Yarmuth, D-Louisville, said Thursday that Heyburn's "courageous decision was an important step to reaching this place and this time, and his legacy will forever be intertwined with a more fair and more equal America."

Reporter Andrew Wolfson can be reached at (502) 582-7189. Follow him on Twitter at @adwolfson. Reporter Chris Kenning contributed to this story.

The Kentucky plaintiffs

Bourke vs. Beshear: Whether gay marriage performed elsewhere must be recognized in Kentucky.

•Greg Bourke was an MBA student at the University of Kentucky in 1981 when he met Michael DeLeon at a Lexington bar. They wed in Canada and have two adopted children.

•Jim Meade and Luke Barlowe, a retired accountant and optician, respectively, met in the late 1960s and live in Bardstown after marrying in another state.

•Tammy Boyd grew up in Shelby County in the 1980s and went to high school with Kim Franklin, but it wasn't until 2007 that they reconnected — and then married on a beach in Connecticut three years later.

•Paul Campion gave up his New York teaching job six months after meeting Randy Johnson and moved to Louisville, where, 23 years later, the married couple are raising four adopted children. They exchanged rings in 1992 and were married in 2008 in Riverside, Calif.

Love vs. Beshear: Whether gays and lesbians should be able to marry in Kentucky.

•Timothy Love and Lawrence Ysunza, who lived together for 34 years, were denied a marriage license in February by the Jefferson County Clerk's office.

•The Rev. Maurice "Bojangles" Blanchard and Dominique James, who have lived together for 10 years, were cited for trespassing when they refused to leave the clerk's office after being denied a license. A jury later convicted them of trespassing but fined them only 1 cent.