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Marriage Equality in Kentucky
In July 2013, Louisville couple Greg Bourke and Michael DeLeon sued the Commonwealth for its refusal to recognize their same-sex marriage. Their case, Bourke v. Beshear (2014), began in the courtroom of Judge John G. Heyburn II of the Western District Court of Kentucky and ended in victory two years later in the Supreme Court of the United States. Bourke became part of a package of cases the Supreme Court heard as Obergefell v. Hodges (2015), which effectively legalized marriage equality in the United States.
For Bourke and DeLeon, their journey to equality began with Judge Heyburn, who ruled 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. A Louisville native, Heyburn understood the strong emotions provoked within his community by this case. Over the course of multiple drafts, he developed an opinion that spoke first to the law, and then to the hopes and fears of Kentuckians who were divided over the question of whether the Constitution allowed the Commonwealth to define what marriage is and who it is for.
This exhibit showcases archival materials that speak to Bourke’s place in Kentucky—as well as American—history.
Greg Bourke and Michael DeLeon were married in 2004 in Ontario, Canada. As residents of Kentucky, however, their marriage was not recognized by state laws. This left Bourke and DeLeon--along with numerous other married same-sex couples in the Commonwealth--without the legal protections and privileges enjoyed by heterosexual married couples. For Bourke, among the most important protections and privileges denied him was his relationship to his children: Kentucky laws did not recognize him as a legal parent to his two teenagers.
In his Bourke opinion, Judge Heyburn traced Kentucky’s prohibition against same-sex marriage back to 1972, when two women, Marjorie Jones and Tracy Knight, sued to get a marriage license in Jefferson County. The county circuit court denied their request, declaring that “what they propose is not marriage”. More than forty years later, Judge Heyburn wrote that the women’s actions focused “attention on problems that were previously in the shadows” (see page 2). When Jones and Knight applied for a marriage license, they “stepped out of those shadows” and asserted their constitutional rights. Ultimately, the district judge stripped the evocative language from his published opinion. Its presence, however, in one of his earliest drafts provides insight into how he viewed the momentous case before him.
One of the key questions that courts around the country addressed in same-sex marriage cases was: who gets to decide whether same-sex marriage should be legal, the public or the courts? In their arguments to Judge Heyburn, the Commonwealth said that it sided with the people, arguing that it had a legitimate interest in enforcing Kentuckians’ voted preference for a traditional definition of marriage. Heyburn agreed that Kentucky had a right to enact its preferred laws—within limits. “Tradition alone,” he wrote in his third draft (see page 14), “cannot justify Kentucky’s infringement on individual liberties.” Heyburn pointed to racial segregation and women’s rights as traditions that had evolved so that “even the most strident supporters of these views…came to see that they could not enforce their particular moral views upon everyone. As here, sometimes judges were among those [who] [sic] helped articulate this view.” The latter sentence was removed in subsequent drafts as Heyburn refined his analysis of why tradition did not constitute a legitimate state interest. In his fifth draft (see page 14), for example, the judge wrote that, “the only conceivable purpose for these Kentucky laws [is] [sic] to express disapproval of same-sex marriage,” another statement that was removed in subsequent drafts.
In 2014, Kentuckians debated not only the marriage rights of same-sex couples but also its placement in the national imagination. Is same-sex marriage, similar to the civil rights struggles of the past, as Judge Heyburn contended in his opinion? One Louisville resident who wrote to Heyburn took issue with the comparison as “airy prognostication.” Instead, the writer likened the trajectory of same-sex marriage laws to abortion: “Roe has both exacerbated the culture war and put into question the legitimacy of our judiciary.”
It was in response to the fears of Kentuckians like the letter-writer above that Heyburn concluded his judicial opinion with a section addressing the “sincere questions and concerns” that he expected to arise from his holding. Heyburn wrote that he felt a “special obligation to answer some of those concerns” because doing otherwise might “risk some of the public’s acceptance” of the courts. In his eighth draft, for example, Heyburn inserted the following sentence: “Some may believe that this step is the first on a road to decaying values and a lesser society. Those beliefs, however sincerely held, cannot justify denying a selected group their constitutional rights” (see page 19). By publication, the sentence had been edited into more succinct and understated language: “One's belief to the contrary, however sincerely held, cannot alone justify denying a selected group their constitutional rights.”
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