The Kentucky Roots of Marriage Equality in Obergefell v. Hodges

The Louisville Political Review looks at monumental court cases that have defined the city of Louisville, and the Commonwealth of Kentucky. Today we examine Obergefell v. Hodges and its societal impact on civil liberties.

On June 26, 2015, crowds gathered in front of the U.S. Supreme Court building, anticipating the final rulings of the term. Although the Court does not share in advance which of its decisions it will issue on a particular day, a family from Louisville had flown into D.C. very late the night before to be in line before dawn the next day.  Greg Bourke (UofL alum), Michael DeLeon, and their two children had a special stake in the outcome of the case because they were two of the named plaintiffs in the consolidated case Obergefell v. Hodges, which challenged state bans (including Kentucky’s) on same-sex marriage as a violation of the 14th Amendment. Sitting in the courtroom, the clerk announced that Justice Anthony Kennedy had the majority opinion in Obergefell v. Hodges, and Justice Kennedy read an abbreviated version of his 5-4 ruling (invaliding the state bans) to those in the courtroom. Outside, as news of the ruling came, those who had come to support LGBT rights erupted into cheers, while same-sex marriage opponents stood more quietly. 

Obergefell v. Hodges was a collection of cases from Ohio, Kentucky, Michigan, and Tennessee involving 14 couples and two individuals whose partners had died (Jim Obergefell being one of those individuals). It came on the heels of two Supreme Court decisions, both written by Justice Kennedy, that energized the marriage equality movement. Hollingsworth v. Perry (2013) upheld a lower federal court decision striking down the state’s same-sex marriage law, effectively legalizing same-sex marriage in California. U.S. v. Windsor (2013) struck down the federal Defense of Marriage Act as a violation of the 5th Amendment Due Process Clause, criticizing the motives of Congress in interfering with the regulation of marriage. Windsor dealt with a plaintiff (Edie Windsor) whose marriage was legally recognized by the state of New York, but because it was not recognized by the federal government, the death of her wife resulted in a tax bill of $363,000 that she would not have been assessed if her spouse was a man.

After Windsor was handed down, Louisvillian David Corbett wanted to find Kentuckians willing to challenge Kentucky’s state constitutional amendment banning same-sex marriage. Two local attorneys were willing to take this case; Shannon Fauver and Dawn Elliott worked at a small private practice in Louisville (Fauver Law Office) and had represented other LGBT couples in bankruptcy proceedings. After some thought, Greg Bourke and Michael DeLeon decided that they would join this lawsuit – which, at the time, was not supported by either the local or national ACLU.  For Greg and Michael, their children were the primary motivation for becoming plaintiffs in the case. The couple had married in Ontario in 2004, but because the state of Kentucky did not recognize their marriage, only Michael was recognized as the legal, adoptive parent of their children; Greg was a legal stranger to them, and if anything happened to Michael, he would have no legal rights for custody. Paul Campion and Randy Johnson (two other plaintiffs in the Kentucky litigation) were similarly motivated. The Louisville couple have four adopted children (who were 18, 14, and 10 at the time their parents joined the case), and, after a cancer scare, also worried about custody of their children. 

Along with other plaintiffs, two suits were brought against the Democratic governor Steve Beshear and the Democratic state attorney general Jack Conway. In Bourke v. Beshear, couples with valid marriages from other states or Canada were challenging Kentucky’s refusal to recognize those marriages, while in Love v. Beshear, couples seeking to marry in Kentucky challenged the state ban on same-sex unions. Kentucky was one of 13 states who put a state constitutional amendment to ban same-sex marriage on the ballot in 2004, where it passed easily. The amendment meant that legal challenges could only be brought under the U.S. Constitution.

Both lawsuits (Bourke v. Beshear and Love v. Beshear) were brought in federal district court and were assigned to Judge John Heyburn (W.D. of Kentucky), a moderate judge appointed by Republican President George H.W. Bush in 1992. (Heyburn passed away before the Supreme Court ruling in the case.) Just before Valentine’s Day in 2014, Judge Heyburn ruled in Bourke that the state’s rationale of preserving the traditional institution of marriage was not rationally related to any legitimate governmental purpose and violated the 14th Amendment Equal Protection Clause by discriminating on the basis of sexual orientation. He observed that “Over the past forty years, the Supreme Court has refused to allow mere tradition to justify marriage statutes that violate individual liberties,” citing the rejection of interracial marriage bans in Loving v. Virginia (1967) as one example. 

Five months later, he followed with his ruling in the aptly named Love v. Beshear, where he again ruled against the state. He was unsparing in his reaction to the state’s argument: “The Court will begin with Defendant’s only asserted justification for Kentucky’s laws prohibiting same-sex marriage: ‘encouraging, promoting, and supporting the formation of relationships that have the natural ability to procreate.’ Perhaps recognizing that procreation-based arguments have not succeeded in this Court, see Bourke, nor any other court post-Windsor, Defendant adds a disingenuous twist to the argument: traditional marriages contribute to a stable birth rate which, in turn, ensures the state’s long-term economic stability. These arguments are not those of serious people.” Here, it is important to note that states with same-sex marriage bans had been forced to change their legal strategy as a result of two other Justice Kennedy decisions. In Romer v. Evans (1996) and Lawrence v. Texas (2003), the Supreme Court had rejected morality arguments as a basis for state laws targeting individuals on the basis of their sexuality, saying that “a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” As a result, many states turned to arguments related to procreation and child-rearing, though Kentucky’s argument about how banning gay and lesbian couples from marriage would improve the birth rate was a novel one, to say the least.

After these rulings, a new wrinkle emerged: attorney general Jack Conway held a tearful press conference announcing that he could not, in good conscience, file an appeal of Judge Heyburn’s rulings.  (Conway would later go on to become the Democratic nominee for governor, losing to Republican Matt Bevin in 2015.)  In light of this development, an outside law firm was hired to represent the state of Kentucky in their appeal. When the U.S. Court of Appeals for the Sixth Circuit announced its decision in November 2014, it was a reversal of Judge Heyburn’s rulings.  

Writing for the 2-1 majority, Judge Sutton noted, “This is a case about change—and how best to handle it under the United States Constitution…What remains is a debate about whether to allow the democratic processes begun in the States to continue in the four States of the Sixth Circuit [Kentucky, Michigan, Ohio, and Tennessee] or to end them now by requiring all States in the Circuit to extend the definition of marriage to encompass gay couples.” 

The only woman on the Sixth Circuit panel, Judge Martha Daughtrey wrote a stinging dissent where she criticized the majority for, “fail[ing] to grapple with the relevant constitutional question,” and instead setting up a “false premise” about democracy and federalism.  She noted that the majority was treating the plaintiffs as, “social activists who have somehow stumbled into federal court, inadvisably, when they should be out campaigning to win the ‘hearts and minds’” rather than individuals suffering harm for the denial of their marriage rights. And she concluded by referencing her oath of office, saying that, “If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.”

Ultimately, a five-justice majority on the Supreme Court agreed with Judge Daughtrey. But with the retirement of Justice Kennedy, as well as the addition of President Trump’s three new justices, the future of Obergefell and marriage equality is in question.  Crucially, the line of cases that led to Obergefell begins with Planned Parenthood v. Casey, one of the two precedents overturned by the Supreme Court (the other being Roe v. Wade).  In Casey, the majority recognized that the right to a pre-viability abortion was consistent with the court’s other precedents offering constitutional protection to personal decisions related to marriage, procreation, contraception, family relationships, child rearing, and education because these were “personal choices central to individual dignity and autonomy” that are “central to the liberty protected by the Fourteenth Amendment.” 

The recognition of rights not specifically mentioned in the Constitution (like marriage and child rearing) is part of an older constitutional doctrine known as substantive due process. This doctrine “reads in” fundamental rights to the word “liberty” in the Due Process Clause, as long as these rights are “implicit to a concept of ordered liberty” and “deeply rooted in the nation’s history and traditions.” Once a right is designated as fundamental, the government must meet a much more stringent standard if it wishes to infringe upon that right. 

As noted above, Casey became about more than just abortion. In Lawrence v. Texas (2003), the Court relied heavily on Casey when it struck down a Texas law that criminalized private, consensual homosexual acts between adults but did not do the same for heterosexual sodomy. Referencing Casey, the Lawrence majority determined that the state sodomy law infringed upon the “most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy” and violated the 14th Amendment. With this broad framing, the Court set the stage for its rulings in Windsor and Obergefell. Because of the sequential and interconnected nature of legal precedent, without Casey, there is no Lawrence, and without Lawrence, there is no Obergefell.

With Casey gone, this may free the conservative supermajority on the Supreme Court to revisit Obergefell, which seems especially at odds with the originalist opinions by Justice Samuel Alito in the Mississippi abortion case (Dobbs v. Jackson Women’s Health Organization) and Justice Clarence Thomas’ majority opinion in the New York gun case (New York State Rifle Association v. Bruen). Crucially, in Obergefell, the majority rejected a reliance on history and tradition when determining whether a fundamental right was at stake. They wrote, “History and tradition guide and discipline this inquiry but do not set its outer boundaries.” In essence, the majority argued that focusing too much on history had the effect of cementing in place discriminatory sentiments that were commonplace early in our country’s history. 

In contrast to Kennedy’s Obergefell opinion, in the two cases from this term on abortion and gun rights, both Justice Alito and Justice Thomas anchored their respective opinions in historical arguments. They argued that the Court should look to the understanding of the asserted right at the time of the Constitution’s ratification (for interpreting whether a gun regulation violates the 2nd Amendment), or the time of the 14th Amendment’s ratification (for assessing whether the right to an abortion is fundamental). Looking backward to historical practices from the 18th and 19th century is not likely to be an approach that advantages LGBT legal claims for constitutional protection.

Moreover, Justice Alito’s dissent in Obergefell provides some clues about the linkage between Dobbs and future cases on LGBT rights.  He writes that, “For millennia, marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate…

If this traditional understanding of the purpose of marriage does not ring true to all ears today, that is probably because the tie between marriage and procreation has frayed. Today, for instance, more than 40% of all children in this country are born to unmarried women. This development undoubtedly is both a cause and a result of changes in our society’s understanding of marriage.” 

It should be noted that Dobbs represented a departure from the Supreme Court’s usual pattern of expanding constitutional rights when it eliminated a previously recognized right, and it has created a great deal of instability (and additional litigation).  A similar impact would be felt if Obergefell were to be overturned by a future Supreme Court, leaving it up to Congress to act (by statute or U.S. constitutional amendment) or states to act (also by statute or state constitutional amendment). 

Returning to the Louisville plaintiffs in Obergefell, it is important to remember that while courts exist to settle disputes and interpret the law, people’s lived experiences do not always fit with the rights they are guaranteed on paper. Judicial decisions are not self-enforcing, and the implementation of the laws often comes down to what political scientists call, “street-level bureaucrats”: concerning marriage, the implementation often comes down to whether a county clerk or a justice of the peace will sign a marriage license. Indeed, Kentucky received national attention when Rowan County clerk Kim Davis refused to sign marriage certificates for gay and lesbian couples after the Obergefell ruling. (Similarly, in 2009, a Louisiana justice of the peace refused to grant a marriage license to an interracial couple, in conflict with the 1967 Loving v. Virginia decision.) Even after the Obergefell decision, many of the Kentucky plaintiffs continue to advocate for LGBT equality in private organizations like the Boy Scouts of America, their places of worship, their workplaces, and their local communities.  The focus has shifted away from marriage to other issues, including transgender rights, but the Bourke and Love plaintiffs have the rare experience of being part of a landmark Supreme Court decision. 

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