[Addendum- March 19: The official proceedings of the telephone conference of March 17, 2014 have been published (Document 70) summarizing two principal orders of business. The deadline for filing an amicus brief on the intervening matter of whether prohibition of gay marriage in Kentucky itself is unconstitutional was extended until May 2, 2014. The Family Trust Foundation of Kentucky apparently plans to file such a brief. Additionally, the motion by the Commonwealth to further stay his opinion concerning recognition of legal (out of state) same-sex marriage was taken under advisement by Judge Heyburn who will issue a separate order.]
What Happened Today (March 17) in Judge John G. Heyburn’s Courtroom?
Gov. Beshear’s attorneys pledge an appeal to Sixth Circuit Appeals Court tomorrow, March 18, if Judge Heyburn does not further stay enforcement of his decision requiring Kentucky to recognize legal same-sex marriages on March 20.
Last Friday, March 14, attorneys for Kentucky Gov. Steve Beshear filed an appeal to Federal District Court Judge John G. Heyburn to stay enforcement of his decision that Kentucky’s statutes and Constitution forbidding the recognition of legal out-of-state same-sex marriages are unconstitutional. If Judge Heyburn does not grant their request, Governor Beshear’s attorneys declared their intention to appeal to the Federal Sixth Circuit Court of Appeals to overturn the Judges decision tomorrow, March 18. The existing temporary stay given to allow the Commonwealth to prepare its compliance expires on March 20. There is not much time left!
Today, attorneys for the married same-sex couples filed their response to the Governor’s request. A telephone hearing was held in Judge Heyburn’s chambers today, but I do not know what was discussed. The session may have been as limited as accepting the Governor’s consent allowing the withdrawal of Attorney General Jack Conway and other attorneys from his office to withdraw from the case. No further hearings are scheduled on the court’s docket as of this evening. Continue reading “Kentucky Files Appeal of Judicial Order to Recognize Legal Same-Sex Marriages”
Breaking News, March 4, 2014, 11:30 a.m.
Governor Steven Beshear’s office announced this morning that Kentucky will appeal last week’s final Order by Federal Judge John G. Heyburn II that declared Kentucky’s law and constitution forbidding recognition of legal same-sex marriages performed in other states to be unconstitutional and therefore null and void. The Governor indicated that a request will be made to Judge Heyburn to further stay his Order pending that appeal. His principle justification is that the matter, currently under dispute in several states, will likely be settled by the US Supreme Court and that should the Order be overturned, confusion will occur and disadvantage accrue to those who relied on the order in the interval.
A most interesting wrinkle in the Governor’s announcement is that Attorney General Jack Conway advised the Governor that he will not represent the Commonwealth further in this matter, and that the appeal and additional request for further stay will be conducted by other council. I have not yet seen a statement from the Attorney General on this matter. One might speculate that Attorney General Conway felt that he found no longer morally defend an unconstitutional law, but that the Governor felt compelled to do so. Some skeptics will likely suggest that this path of action takes the Attorney General (who has state-wide political ambitions) off the hook from making the no-win political decision described by several political editorialists this past week. I would like to believe the former possibility is more accurate. [Addendum: In fact, Tom Loftus reports in the Courier Journal that Attorney General Conway announced earlier this morning that “Judge Heyburn got it right” and that by appealing he would be defending discrimination, something “that I will not do.” I applaud General Conway for his ethical position.]
Judge Heyburn speculated at last week’s hearing that such an appeal from the Commonwealth might happen. From his comments, and from the confidence I perceive in his belief in the justness of his Opinion, I predict that Judge Heyburn will not grant a further stay of enforcement.
More information is likely to become available, and I will comment further as indicated.
Below are the full statements of both the Attorney General and the Governor.
Peter Hasselbacher, MD
March 4, 2014 Continue reading “Kentucky to Appeal Judge Heyburn’s Order to Recognize Legal Same-Sex Marriages”
What will KentuckyOne Health and other employers do?
For a single day following Judge G. Heyburn’s historic court order requiring Kentucky to recognize legal same-sex marriages from out-of-state, such couples were legally able to do things that many of us take for granted such as changing names on drivers licenses. Sadly, there are reports that despite having two weeks to prepare, some clerks turned people away yet again. Confusion about what to do seemed the socially acceptable and perhaps even understandable excuse. This was the justification offered by the Attorney General’s office in requesting a 90-day stay of the Judge’s order so that the Commonwealth could prepare for an orderly implementation of the new law, and to minimize confusion.
The Judge balanced the lack of any strong argument that the Commonwealth would be harmed by moving forward, against the further injustice of enforcing unconstitutional policy. He may also have been influenced by information presented at Friday’s hearing that some married couples would in fact be harmed by a further 90-day interval. In the end, Judge Heyburn stayed his order of February 27 for 20 days until March 20 to allow the state “proper time to administratively prepare for compliance with the Order.”
Will or won’t the Commonwealth appeal?
A decision of whether or not the Commonwealth will appeal the underlying Order within the allowable 30 days will apparently be made soon. The basis for such an appeal would likely be that the Attorney General has a responsibility to enforce state laws and policy. Of course that is a justification used in the past to suppress the civil rights of minorities. I believe that our Governor and Attorney General will not appeal, even without the cover provided by the United States Attorney General advising that states’ Attorneys General need not defend unconstitutional laws, or last June’s US Supreme Court’s United States v. Windsor decision that turned gay-rights marriage law on its head. This high-drama matter will play out in Kentucky and several other states as it will. In the meanwhile, it is not only the Commonwealth of Kentucky that must prepare for compliance with the new law, but other public and private institutions that have used Defense of Marriage- type laws to support their choice not to recognize legal same-sex marriages. I predict much squawking and maneuvering to avoid doing the right thing as occurred following other civil rights actions in the past.
Here in Kentucky, one of the most prominent actors who will have to change their spots is KentuckyOne Health, the hospital corporation that manages several facilities around the state including in Louisville: Jewish, Sts’ Mary and Elisabeth, Our Lady of Peace, and the University of Louisville Hospitals. Currently in these hospitals, the legal marriages of same-sex families are not recognized for the purposes of employee healthcare and other benefits. In the case of University Hospital, and following the directives of its Catholic parent company, benefits that same-sex partners earned from the previous manager of the hospital were taken away by KentuckyOne Health.
What will KentuckyOne Health do? What should it do? Continue reading “Recognition of Legal Same-Sex Marriages Now [Briefly] the Law in Kentucky.”
Kentucky must recognize all legal out-of-state marriages regardless of the mix of the sexes involved by March 20, 2014.
On February 27, 2014, Federal Judge John G. Heyburn, II issued a historic final order declaring null and void, Kentucky’s statutes and Constitution forbiding the state to recognize legal out-of-state marriages of same-sex couples. In an earlier Memorandum & Opinion on February 12, the Judge found that no state purpose was served by such discrimination. The carefully reasoned and sensitively written memorandum is destined for the history books.
Immediately following the final order, the Office of Kentucky’s Attorney General filed a request for a 90-day stay in order to give the Commonwealth time to consider whether or not to appeal the judgment and to allow time to prepare for implementation of that order. In a hearing today at the Federal Courthouse in Louisville, Judge Heyburn granted a short stay. For all the happily married same-sex couples, the doors are opening wide to all of the rewards, civic, financial, and emotional, of their commitment. The order granting stay can be viewed here. Continue reading “Order to Recognize Same-sex Marriages in Kentucky is Stayed for 20 Days.”