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Wednesday, February 12, 2014

Ind. Law - Still more on "Kentucky ban on gay marriages from other states struck down by federal judge"

Updating two earlier ILB posts today, first here, then here, Lyle Denniston of SCOTUSblog now has this post re the Kentucky ruling today on same-sex marriages that begins:

A federal judge in Louisville ruled Wednesday that same-sex couples living in Kentucky who were married elsewhere have a constitutional right to official acceptance of their marriages and to equal access to marital benefits. While the judge limited his ruling to that specific issue, he predicted that the analysis he used would eventually mean that same-sex couples will gain the right to marry across the nation.

The ruling by U.S. District Judge John G. Heyburn II, in a twenty-three page opinion, was another indication that equal access to marital benefits is becoming increasingly an approach used by courts leading toward full recognition of equal marital rights for gays and lesbians.

In fact. the judge suggested that it may take just one more Supreme Court ruling “in the next few years” to complete “the judicial journey” toward full equality for gays and lesbians in American law.

The judge wrote that the Supreme Court’s ruling last June in U.S. v. Windsor “would seem to command that a law refusing to recognize out of state same-sex marriages has only one effect: to impose inequality.” The Windsor decision struck down a part of the federal Defense of Marriage Act that barred equal federal benefits related to marriage to same-sex couples who are legally married.

ILB: Something that confuses me. Windsor was about Section 3 of federal DOMA, which defined marriage for federal law as being between a man and a woman. But Section 2 of DOMA, about which Denniston says in this 2012 post:
... carved out an exception to “full faith and credit,” excusing states from their obligation to honor the laws of other states “respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State.”
was, as I understand it, not impacted by Windsor.

So how is it that decisions such as this one today from Kentucky can throw out a state's limitation on the recognition of out-of-state same sex marriages on the basis of Windsor?

After that aside, back to Denniston's post today, from the conclusion:

A noteworthy part of Judge Heyburn’s opinion was a studied effort to explain to those who would be offended by his ruling, especially on the basis of their religious or cultural beliefs, why he was led to his decision as a constitutional matter. That section of the ruling read very much like a basic civics lesson about the way that 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.

Since 1998, Kentucky has had state laws against same-sex marriage and against recognizing out-of-state same sex marriages. And, in 2004, Kentucky became one of a lengthy list of states to put a ban on same-sex marriage into the state constitution, in the wake of the first state supreme court ruling in favor of same-sex marriage — in Massachusetts. Kentucky’s amendment was approved at the polls with more than 74 percent in favor.

The laws and that amendment were challenged by four same-sex couples living in the state, each of whom had been married in places allowing such marriages – in California, Connecticut and Iowa or in Canada. Their lawsuit did not challenge the ban on such marriages in Kentucky, but only that state’s refusal to recognize their existing marriages as equal to those of opposite-sex married couples in the state.

Posted by Marcia Oddi on February 12, 2014 06:36 PM
Posted to Indiana Law