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Everything You Need to Know Now About Marriage Equality in Kentucky

What's Going on in Kentucky?
There are two lawsuits in Kentucky: one in state court and one in federal court. The federal lawsuit originated with private lawyers in July 2013, representing couples married in other states. Later, unmarried couples were allowed to join the suit as well.

Initially, Judge John G. Heyburn II ruled that the state's ban is unconstitutional, but his decision was overturned by the Sixth Circuit Court of Appeals. Unlike in other states, there was no brief window of legality during which couples were allowed to wed.

In an unusual move, Kentucky Attorney General Jack Conway announced that he would not defend the ban, despite Gov. Steve Beshear's desire for the state to do so. Conway agreed with the plaintiffs that the ban is unconstitutional, and so Beshear obtained a private attorney to continue the litigation. 

The state lawsuit, filed in September 2013, has seen little movement over the last year.

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Attorney General Jack Conway

What Happens Next?
The U.S. Supreme Court will probably hear oral argument sometime around late April, with a decision sometime around late June. That schedule is purely speculative, based on the timeline laid out by the court for briefing, and that time frame could change.

If the Supreme Court upholds marriage equality, there would likely be a brief period of confusion during which antigay state officials struggle to comply with the ruling. Some states might try to delay the start of marriage as long as possible, or create artificial roadblocks to obtaining a marriage license.

It's hard to say what would happen if the Supreme Court rules against marriage equality. It's possible, though unlikely, that states that currently have marriage equality might try to undo it. What's most likely is that such a ruling would maintain the status quo, and that marriage would remainlegal in states that already have it while bans would remain in states that do not. In that case, the only recourse would be a slow, expensive state-by-state effort to repeal the bans. That would need to be prefaced by a lengthy public education campaign that would likely take years.

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Rev. Maurice Blanchard (right) and Dominique James

How do Kentuckians Feel About Marriage Equality?
Kentucky voters passed a ban in the form of an amendment to the state's constitution in 2004 by 75 percent. There's not a lot of data on public support for marriage equality, but polls from Public Policy Polling seem to indicate that positive sentiments are generally increasing. Twenty-seven percent of those polled in 2013 said they supported marriage equality, while 65 percent said they opposed it. A year later, those numbers had improved from 30 percent in support and 61 percent in opposition. That's still a long way from majority support, but it represents at least a small improvement. A New York Times survey also showed opposition dropping by four points during 2014.

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Charles and Martin

What Are the Arguments for Marriage Equality?
The arguments in Kentucky are similar to those made in most other marriage equality cases: that marriage equality is required by the Due Process and Equal Protection clauses of the U.S. Constitution.

The plaintiffs argue that excluding them from marriage causes substantial harm, pointing to tax law, social status, and personal stability as evidence. They also argue that there is no rational government interest in the marriage ban, whether for fiscal purposes or protecting children.

These arguments were persuative to Judge John G. Heyburn II, who ruled that "Kentucky's laws banning same-sex marriage cannot withstand constitutional review." Heyburn cited the Supreme Court's ruling in the Defense of Marriage Act case to support his finding.

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From left: Attorney Shannon Fauver stands with gay couples Luke Barlowe, front, and Jim Meade, Randy Johnson, front, and Paul Campion, Greg Bourke, front, and Michael Deleon, and Tammy Boyd, front, and Kim Franklin.

What Are the Arguments Against Marriage Equality?
Kentucky's arguments are generally consistent with those of other states: that the will of the voters is more important than the U.S. Constitution.

In reversing Heyburn's decision, the Sixth Circuit essentially threw up its hands at the case, and said that voters should be the ones to decide marriage policy. “When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers," wrote Judge Jeffrey S. Sutton, the author of the main opinion, "Better, in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.”

The Sixth Circuit also cited Baker v. Nelson, a 1972 case in which the Supreme Court wrote that marriage equality is not worthy of federal review.

Ultimately, Governor Beshear said, what is needed is "a United States Supreme Court ruling that establishes clear direction for states across the country on this divisive issue."

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