Andrew Wolfson

The (Louisville, Ky.) Courier-Journal

The men say state law deprives them of legal protections available to opposite-sex couples

In 2004%2C Kentucky approved an anti-gay marriage constitutional amendment with 74%25 of vote



Federal judge%27s previous ruling suggests he might be inclined to grant request if he is asked

LOUISVILLE, Ky. — Two days after a federal judge ruled that Kentucky must recognize same-sex marriages from states where the unions are legal, two couples have asked him to allow gay marriages to be performed within the Bluegrass State.

The couples, both denied marriage licenses from the Jefferson County clerk here, have asked U.S. District Judge John G. Heyburn to extend his ruling on the same grounds that he cited in the previous case — that discriminating against same-sex marriages violates the federal constitutional right to equal protection under the law.

Heyburn indicated in his ruling Wednesday that he would be inclined to do so.

Ruling in a suit brought by four gay and lesbian couples and their children, Heyburn said that while "religious beliefs ... are vital to the fabric of society ... 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."

In an intervening complaint filed in that suit Friday, two couples — Timothy Love and Lawrence Ysunza and Maurice Blanchard and Dominque James — say "the commonwealth's law deprives them of numerous legal protections that are available to opposite-sex couples" because they are not allowed to marry in the state.

Allison Martin, a spokeswoman for the attorney general's office that defended the state in the original suit, said her office is reviewing the motion and won't comment on whether the state will oppose it.

The office will not decide whether to appeal Wednesday's ruling until it is final, which won't happen until Heyburn holds a hearing on how to implement it, she said. No date has been set for the hearing.

The new complaint filed Friday names Kentucky Gov. Steve Beshear and others as defendants.

The couples say they should be allowed to join the earlier lawsuit in the interest of " judicial economy" and because some issues are common to both cases.

If their motion is granted, Heyburn would decide the merits of their complaint, rather than having another judge assigned the case at random, as would happen if the plaintiffs had filed a new lawsuit.

The complaint says that Ysunza and Love have been together 33 years and that Blanchard and James have been together 10 years.

The latter couple was cited for trespassing in January 2013 when they refused to leave the Jefferson County Clerk's Office after being denied a license. They were convicted in November, but a jury ordered them to pay a penny fine, which the defendants hailed as a victory.

Their motion comes the day after a federal judge in Virginia struck down that state's laws barring same-sex couples from marrying; enforcement of the ruling was delayed to give opponents time to appeal. The plaintiffs in that case cited Heyburn's ruling.

His decision struck down only part of Kentucky's marriage amendment, which was enacted in 2004 by 74% of the voters and says "only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky." In the 23-page opinion, Heyburn said the state and groups defending the amendment offered no evidence that recognizing same-sex unions would harm opposite-sex marriages, individually or collectively.

Heyburn himself suggested then that his ruling would lead to the legalization of same-sex marriage in Kentucky.

"The court was not presented with the particular question whether Kentucky's ban on same-sex marriage is constitutional," Heyburn wrote. "However, there is no doubt that Windsor (last year's U.S. Supreme Court's ruling affording federal marriage benefits to same-sex spouses) and this court's analysis suggest a possible result to that question."

Love, Ysunza, Blanchard and James are represented by the same six lawyers who represented the four couples filing the original suit: Shannon Fauver, Dawn Elliott, Daniel Canon, Laura Landenwich, L. Joe Dunman and Louis P. Winner.