By BRETT BARROUQUERE
2014-02-15 03:01 AM
LOUISVILLE, Kentucky (AP) -- A Kentucky couple on Friday sued the state, seeking to force it to issue same-sex marriage licenses after a federal judge ruled earlier this week that the state must recognize the unions if they are performed in other states or countries.
The lawsuit filed in U.S. District Court in Louisville seeks to build on that earlier ruling by raising the issue of whether Kentucky should sanction them if they take place in Kentucky.
The suit comes amid a flurry of rulings and other legal activity as activists push more states to recognize gay marriages. A federal judge in Virginia late Thursday struck down that state's ban, ruling it was unconstitutional, a first in the socially conservative Southeast.
Also Thursday, activists in Nevada launched a campaign to put a measure on the 2016 ballot giving voters the option to change the state constitution to allow gay marriage, and lawmakers in Wisconsin backed a similar proposal there. Lawsuits in Alabama and Louisiana are seeking to push those states to either acknowledge or allow same-sex unions.
In Virginia, U.S. District Judge Arenda Wright Allen issued a stay of her order while it is appealed, meaning that gay couples in Virginia still will not be able to marry until the case is ultimately resolved. Both sides believe the case won't be settled until the U.S. Supreme Court decides to hear it or one like it. Marriage-equality cases are now active in 24 of the 33 states that do not allow same-sex marriage.
The U.S. Supreme Court set the stage for the wave of litigation last June, when it ordered the federal government to recognize valid same-sex marriages, but stopped short of striking down state laws banning them. Gay-rights activists hope that one or more of the lawsuits will reach the high court and lead to nationwide legalization.
In overturning Kentucky law, U.S. District Judge John G. Heyburn II ruled that the 2004 constitutional amendment banning same-sex marriage treated "gay and lesbian persons differently in a way that demeans them."
The ruling only requires Kentucky to recognize the marriages of gay and lesbian couples performed legally in other places. It does not deal with the question of whether the state can be required to issue marriage licenses to same-sex couples. That issue wasn't brought up in the four lawsuits that triggered the ruling.
Heyburn noted that recent U.S. Supreme Court rulings and his opinion in the Kentucky case "suggest a possible result to that question."
Heyburn cited multiple rulings related to relationships and privacy in his decision, but focused mainly on last summer's U.S. Supreme Court decision striking down sections of the federal Defense of Marriage Act. Heyburn cited U.S. Supreme Court Justice Anthony Kennedy's opinion striking down part of the Clinton-era federal law in abrogating Kentucky's law. In the federal case, Kennedy found that by treating same-sex married couples differently than opposite-sex couples violates due process and equal protection principles applicable to the federal government.
With Heyburn's ruling, Kentucky becomes one of 10 states where state or federal courts have reached similar conclusions about same-sex marriage bans.
The movement to legalize gay marriage began with Massachusetts in 2004. Now 17 states and the Washington capital district allow gay marriage, most of them clustered in the Northeast. Three other states grant marriage-like rights though civil unions or domestic partnerships. None of them is in the Southeast.
In Virginia, the office of newly elected Virginia Attorney General Mark Herring took the unusual step of not defending the state's law because it believes the ban violates the equal protection clause of the Constitution's 14th Amendment. In her ruling, Wright Allen agreed.
"The court is compelled to conclude that Virginia's Marriage Laws unconstitutionally deny Virginia's gay and lesbian citizens the fundamental freedom to choose to marry. Government interests in perpetuating traditions, shielding state matters from federal interference, and favoring one model of parenting over others must yield to this country's cherished protections that ensure the exercise of the private choices of the individual citizen regarding love and family," Wright Allen wrote.
Wright Allen's stay was requested by the Virginia Attorney General's Office to avoid a situation similar to what happened in Utah after that state's ban on gay marriages was declared unconstitutional.
More than 1,000 gay and lesbian couples were married in the days after the ruling until the U.S. Supreme Court granted the state an emergency stay, halting the weddings and creating a cloud of uncertainty for the status of the married couples. Soon after, a federal judge also declared Oklahoma's ban unconstitutional. That ruling also is on hold while it is appealed.
Supporters of the state ban on same-sex marriages issued statements decrying Wright Allen's ruling.
Brian Brown, President of the National Organization for Marriage, called the ruling "another example of an Obama-appointed judge twisting the constitution and the rule of law to impose her own views of marriage in defiance of the people of Virginia."
Attorneys general in other states have taken mixed approaches to court challenges to bans on gay marriage. Utah and Oklahoma are fighting rulings lifting their bans, while Nevada, like Virginia, has chosen not to defend it.