By RONNIE ELLIS
At least for the time being, same-sex couples with valid marriage licenses from other states must be legally recognized as married in Kentucky.
Federal Judge John Heyburn Thursday entered a final order on his Feb. 12 ruling that Kentucky’s ban on recognizing such marriages violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
His order is appealable and Attorney General Jack Conway indicated in a court motion he is still considering an appeal of the order but apparently hasn’t decided if he will.
The ruling does not mean Kentucky must allow same-sex marriages to be performed. But that could also change as Heyburn also issued an order Thursday allowing new plaintiffs to intervene in the suit against the state, Attorney General Jack Conway and Gov. Steve Beshear. The new plaintiffs are Jefferson County same-sex couples who seek a ruling ordering the state to issue them and other same-sex couples marriage licenses. A ruling on that question isn’t likely soon.
Heyburn’s final order on same-sex marriages performed in other states says that to the extent Kentucky law and Section 233A of the Kentucky Constitution “deny validly married same-sex couples equal recognition and benefits under Kentucky and federal law, those laws violate the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, and they are void and unenforceable.”
The ruling throws out parts of a 1998 law and a 2004 constitutional amendment (Sec. 233A) which define marriage as “between one man and one woman.”
Earlier Thursday, attorneys with Conway’s office filed a motion seeking to have the order delayed until his office could decide whether to appeal Heyburn’s ruling. Citing the “importance of this case,”the motion asked for a delay of 90 days.
“This will give the Defendants time to determine if they will appeal the order, and the Executive Branch time to determine what actions must be taken to implement this Court’s Order if no appeal is taken. Should Defendants elect to appeal from any final order, they reserve the right to seek a stay for the duration of the appeal.”
But Heyburn nonetheless issued his final order and made no mention of Conway’s motion which was signed by Conway and Deputy Attorneys General Clay Barkley and Brian Judy.
The Family Foundation, a conservative group which opposes recognition of same-sex marriage, issued statements criticizing Conway for waiting so long to seek a stay.
“Why has it taken so long for the Attorney General to put his name to a document in this case? And why is it that the only thing he has signed up until now is a motion for a stay? So far, the motions have been signed by Conway’s underlings,” said Martin Cothran.
Kentucky’s attorney general is legally required to defend the state’s laws and constitution. But the U.S. Attorney General, Eric Holder, recently said state attorneys general aren’t bound to defend laws they believe are discriminatory.
Virginia’s Attorney General recently declined to defend a similar law in that state after it was ruled unconstitutional by a court.
Conway and Beshear are under pressure from both sides. Some Republican lawmakers called on them to appeal Heyburn’s initial ruling on Feb. 12 on the House floor. While Beshear is in his second term and ineligible for re-election, Conway has said he’s seriously considering a run for governor in 2015.
Ronnie Ellis writes for CNHI News Service and is based in Frankfort. Reach him at email@example.com. Follow CNHI News Service stories on Twitter at www.twitter.com/cnhifrankfort.
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