Same-sex marriage has been legal in Kentucky since the U.S. Supreme Court's ruling in Obergefell v. Hodges on June 26, 2015. The decision, which struck down Kentucky's statutory and constitutional bans on same-sex marriages, was handed down on June 26, and Governor Steve Beshear and Attorney General Jack Conway announced almost immediately that the court's order would be implemented.
On February 12, 2014, Judge John G. Heyburn II of the U.S. District Court for the Western District of Kentucky ruled that Kentucky must recognize same-sex marriages established in other jurisdictions. On July 1, the same judge ruled that Kentucky's denial of marriage licenses to same-sex couples violated the U.S. Constitution, but stayed implementation of both his decisions pending appeal. The Sixth Circuit Court of Appeals reversed both those decisions on November 6. The same-sex couples asked the U.S. Supreme Court to review that decision. On January 16, 2015, the U.S. Supreme Court consolidated these cases with three others and agreed to review the case as Obergefell v. Hodges. Initially, following the U.S. Supreme Court ruling, four Kentucky counties were known to have refused (or announced they would refuse) to issue marriage licenses to same-sex couples. By June 2016, however, all counties in Kentucky had begun issuing marriage licenses or had announced their intention to do so.
Legal restrictions On November 9, 1973, the Kentucky Court of Appeals ruled in Jones v. Hallahan that two women were properly denied a marriage license in Louisville based on dictionary definitions of marriage, despite the fact that state statutes did not restrict marriage to opposite-sex couples. Its decision said that "in substance, the relationship proposed ... is not a marriage." Kentucky Court of Appeals: Jones v. Callahan, November 9, 1973Barbara J. Cox, "Same-Sex Marriage and Choice-of-Law: If We Marry in Hawaii, Are We Still Married When We Return Home?", in Wisconsin Law Review, 1994, 179ff., available online, accessed March 9, 2014
After the Hawaii Supreme Court seemed poised to legalize same-sex marriage in Hawaii in Baehr v. Miike in 1993, members of the Kentucky General Assembly began pressing for the passage of a bill banning same-sex marriage. Such a bill was introduced in the 1998 legislative session. It passed the Kentucky House of Representatives on March 11 by a vote of 84–9, and the Kentucky Senate approved the bill 13–2 on March 26. Senator Ernesto Scorsone was a vocal opponent of the legislation, stating on the floor of the Senate, "When you vote 'no' on this bill or abstain, you can go home and look your mail carrier in the eye, or you neighbor, or aunt or nephew or coworker, and say, 'I was asked to go against you and support the lies and prejudice', but I didn't give in to the pressure. I voted 'no'." Governor Paul E. Patton signed the bill into law on April 2, and it went into effect on July 15, 1998. The law defined marriage as "a relationship between a man and a woman", prohibited same-sex marriage and declared it contrary to public policy, and denied recognition to same-sex marriages from other jurisdictions.
In November 2004, Kentucky voters approved Amendment 1, a constitutional amendment banning same-sex marriage. It read:
Kentucky's only recognition of same-sex relationships was its extension of hospital visitation rights to same-sex couples through a designated visitor statute.
Federal lawsuits
Bourke v. Beshear
On July 26, 2013, a same-sex couple legally married in Canada filed a lawsuit in the U.S. District Court for the Western District of Kentucky, challenging Kentucky's refusal to recognize their marriage. That case was filed by the Fauver Law Office. Three other married same-sex couples, and their children, were later added as plaintiffs. Governor Steve Beshear and Attorney General Jack Conway were the named defendants. The plaintiffs in Bourke argued that Kentucky should recognize same-sex marriages from other jurisdictions. The case was assigned to Judge John G. Heyburn II.
In a decision issued on February 12, 2014, Judge Heyburn found that Kentucky must recognize same-sex marriages from other jurisdictions because withholding recognition violated the U.S. Constitution's guarantee of equal protection. His final order, issued on February 27, 2014, made recognition of out-of-state same-sex marriages de jure legal; being a final order it was then immediately subject to appeal. Heyburn stayed his decision for 21 days the next day. On March 4, the Attorney General of Kentucky, Jack Conway, announced that he would neither appeal the state's position nor request further stays. Governor Beshear said he would employ outside counsel to appeal Heyburn's ruling in Bourke to the Sixth Circuit Court of Appeals and to request a stay pending appeal. On March 19, Judge Heyburn extended his stay pending appeal, noting the stay granted by the U.S. Supreme Court in a similar Utah case. On the same date, the defendants lodged an interlocutory appeal of Bourke in the Sixth Circuit. Oral arguments in the case were held on August 6, 2014.
Love v. Beshear
On February 14, 2014, two same-sex couples who were denied marriage licenses in Kentucky asked to be allowed to intervene in Bourke. As Judge Heyburn issued a final order in Bourke, he bifurcated the case and allowed the new plaintiffs to intervene and argue against Kentucky's denial of marriage licenses to same-sex couples. This portion of the case remained in district court, retitled as Love v. Beshear. A briefing schedule on this issue was completed by May 28.
On July 1, Judge Heyburn found in favor of the intervening same-sex couple plaintiffs in Love and ruled that Kentucky's ban on allowing same-sex couples to marry violated the Equal Protection Clause of the U.S. Constitution. The Sixth Circuit Court of Appeals consolidated Love with Bourke v. Beshear. It heard oral arguments on August 6, the same day it heard same-sex marriage cases originating in Michigan, Ohio, and Tennessee.
Appellate decision and Supreme Court review On November 6, the Sixth Circuit ruled 2–1 in both cases that Kentucky's ban on same-sex marriage did not violate the U.S. Constitution. It said it was bound by the U.S. Supreme Court's 1972 action a similar case, Baker v. Nelson, which dismissed a same-sex couple's marriage claim "for want of a substantial federal question." Writing for the majority, Judge Jeffrey Sutton also dismissed the arguments made on behalf of same-sex couples in this case: "Not one of the plaintiffs' theories, however, makes the case for constitutionalizing the definition of marriage and for removing the issue from the place it has been since the founding: in the hands of state voters." Dissenting, Judge Martha Craig Daughtrey wrote: "Because the correct result is so obvious, one is tempted to speculate that the majority has purposefully taken the contrary position to create the circuit split regarding the legality of same-sex marriage that could prompt a grant of certiorari by the Supreme Court and an end to the uncertainty of status and the interstate chaos that the current discrepancy in state laws threatens." The same-sex couples filed a petition for a writ of certiorari with the U.S. Supreme Court on November 17.
On January 16, 2015, the U.S. Supreme Court consolidated these cases with three others and agreed to review the case as Obergefell v. Hodges. The Supreme Court ruled against the states and reversed the judgment of the Sixth Circuit on June 26, 2015, requiring all states in the United States to license marriages between couples of the same sex based on the Due Process and Equal Protection clauses of the Fourteenth Amendment. Governor Beshear ordered county clerks to begin issuing marriage licenses to same-sex couples, "Neither your oath nor the Supreme Court dictate what you must believe. But as elected officials, they do prescribe how we must act", he wrote to county clerks. Among the first couples to marry were Tadd Roberts and Benjamin Moore in Louisville, and Marc Roland and Scott Shive in Lexington on Friday afternoon just hours after the court ruling. Licenses were issued in at least five counties that Friday, June 26; Jefferson, Fayette, Kenton, Meade and Hancock counties.
State lawsuits On April 16, 2015, Kentucky Equality Federation v. Beshear was ruled on by Franklin County Circuit Court Judge Thomas D. Wingate. Judge Wingate sided with the Kentucky Equality Federation against the state. At the request of Governor Steve Beshear's legal representation, Judge Wingate stayed the order pending a ruling from a Kentucky appellate court, such as the Kentucky Court of Appeals or Kentucky's court of last resort, the Kentucky Supreme Court, or the U.S. Supreme Court. Judge Wingate ruled that "Kentucky's statutory and constitutional bans on same-sex marriage [are] void and unenforceable for violating Plaintiff and Plaintiff's Members Constitutional Rights".
Responses to Obergefell v. Hodges
After the Supreme Court ruling in 2015 striking down bans on same-sex marriage across the United States, David Ermold and David Moore, a same-sex couple from Morehead and alumni of Morehead State University, released video footage of the Rowan County Clerk, Kim Davis, refusing to issue them a marriage license under "God's Authority." The video went viral overnight, and it caused an international outrage against the actions of the county clerk. Davis opposed same-sex marriage, but to avoid the appearance of discrimination against gay people, she refused to issue marriage licenses to any couples, opposite-sex or same-sex. In total, six couples, four represented by the American Civil Liberties Union (ACLU), and two couples with separate legal representation, sued Davis in her official capacity as county clerk.
On August 12, 2015, Judge David Bunning of the U.S. District Court for the Eastern District of Kentucky ruled in Miller v. Davis that she had to issue the licenses. Davis requested a stay, and Bunning granted it until the end of the month. Davis asked for the stay to be extended so that she could appeal the decision, but a three-judge panel of the Sixth Circuit denied her request, noting that "she had little to no chance to succeed on appeal on the merits of her case". On August 31, the U.S. Supreme Court denied her emergency application to extend the stay.