[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.

The Commonwealth argues that failure to maintain the status quo will cause chaos, and that Kentucky should wait until things play out in subsequent appeals which may take months to years. The Commonwealth’s position is that any harm that may result to the married couples from further delay “is minor” compared to an unspecified impact to the public should the order be later reversed on appeal. Much is made of a case in Utah where a federal court decision that came to the same conclusion as Judge Heyburn was stayed by the Supreme Court for unspecified reasons, but little is made of the flood of decisions similar to Judge Heyburn’s that followed the Supreme Court’s decision supporting the individual rights of married same-sex partners. No argument that I could see is made by the Commonwealth about the merits of their case, or the likelihood that it will prevail on appeal.

My readers will not be surprised that I think the brief by the plaintiff-couples was more rational and appropriately critical of the Commonwealth’s dismissive minimization of their financial damages and emotional harm. Preserving a status quo of denying individuals their rights is not in the public interest. The plaintiff’s arguments in my opinion easily deflect “hyperbolic” theoretical claims of chaos should married same-sex partners walk freely among us. The plaintiffs did not have to resort to the argument that other governments have made similar claims of  what would happen should even heterosexual people of different colors wed, or why only white people should be allowed to become naturalized citizens.

Read the decisions for yourself.
Both arguments were clearly written and I urge readers to read them and make their own decision about which is is a better reflection of American values. Remember that the U.S. Supreme Curt has already declared that withholding recognition of the legality of same-sex marriages is unconstitutional.

I rarely win at the racetrack, but my bet is that Judge Heyburn will deny this request for further delay and that on Thursday, all married couples in Kentucky will be able to file their taxes jointly, will have children with two parents, will be eligible for the same employee benefits that other spouses enjoy, will have estates that pass normally, and that loved ones will be together in health, and in sickness, and in death with all that entails emotionally and legally.

My wish is that Kentucky will not be the last state to shed yet another fossil of institutionalized discrimination from the past. We can only hope!

Peter Hasselbacher, MD
President, KHPI
Emeritus Professor of Medicine, University of Louisville (Where all legal marriage is recognized and respected, and of which I am therefore proud.)

Legal Filings:
• Permission for Attorney General Conway to withdraw. [3-14-2014]
• Request by Commonwealth for further stay. [3-14-2-14]
• Response of Plaintiffs to request for further stay. [3-17-2014]
• Discussion of Judge Heyburn’s Opinion and links to other court documents.
• Notice of appeal to Sixth Circuit Appeals Court (3-18-2014)