Love v. Beshear

• Decision Date: 01 July 2014
• Docket Number: Civil Action No. 3:13–CV–750–H.
• Citation: 989 F.Supp.2d 536
• Parties: Timothy LOVE, et al., Plaintiffs v. Steve BESHEAR, Defendant.
• Court: U.S. District Court — Western District of Kentucky

989 F.Supp.2d 536

Timothy LOVE, et al., Plaintiffs
v.
Steve BESHEAR, Defendant.

Civil Action No. 3:13–CV–750–H.

United States District Court,
W.D. Kentucky,
at Louisville.

Signed July 1, 2014.

Held Unconstitutional
Ky.Const. § 233A, KRS 402.005, 402.020(1)(d)

Recognized as Unconstitutional
1 U.S.C.A. § 7

Validity Called into Doubt

KRS 402.040(2), 402.045

[989 F.Supp.2d 538]

Dawn R. Elliott, Shannon Renee Fauver, Fauver Law Office, Laura E. Landenwich, Leonard J. Dunman, IV, Louis Paz Winner, Daniel J. Canon, Clay Daniel Walton Adams PLC, Louisville, KY, for Plaintiffs.

[989 F.Supp.2d 539]

Gregory L. Monge, Leigh G. Latherow, William H. Jones, Jr., Vanantwerp, Monge, Jones, Edwards & McCann, LLP, Ashland, KY, for Defendant.

MEMORANDUM OPINION AND ORDER
JOHN G. HEYBURN II, Senior District Judge.

Two same-sex couples who wish to marry in Kentucky have challenged Kentucky's constitutional and statutory provisions that prohibit them from doing so. SeeKY. Const. § 233A; KY.Rev.Stat. Ann. §§ 402.005, .020(1)(d) (West 2014).¹ On February 12, 2014, this Court held that, insofar as these provisions denied state recognition to same-sex couples who were validly married outside Kentucky, they violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. See Bourke v. Beshear, 3:13–CV–750–H, ––– F.Supp.2d ––––, 2014 WL 556729 (W.D.Ky. Feb. 12, 2014). Since then, these four Plaintiffs have intervened to assert their own related claims.²

Since the Supreme Court's landmark decision in United States v. Windsor, ––– U.S. ––––, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013), every federal court to consider state bans on same-sex marriage and recognition has declared them unconstitutional. Most of these courts have done so under both the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution.³ This Court's opinion differs in that it does not determine whether Kentucky's laws interfere with a fundamental right. The Court's chief reason for declining to do so is its careful reading of Windsor, which suggests that the Supreme Court is unwilling and unlikely to view the right Plaintiffs seek to exercise as fundamental under the Constitution.

For the reasons that follow, this Court holds that the Commonwealth's exclusion of same-sex couples from civil marriage violates the Equal Protection Clause.

I.

This case arises from the same history discussed at length in Bourke, which the

[989 F.Supp.2d 540]

Court incorporates by reference. See––– F.Supp.2d at –––– – ––––, 2014 WL 556729, at *1–2. Briefly, in 1998, Kentucky enacted statutory provisions that defined marriage as between one man and one woman and voided marriages between persons of the same sex.⁴ Six years later, in 2004, Kentucky citizens voted to approve the following state constitutional amendment:

Only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.
KY. Const. § 233A. Plaintiffs here are Kentucky citizens who want to marry in Kentucky but are prevented from doing so under these laws because they are same-sex couples.

Timothy Love and Lawrence Ysunza reside in Louisville, Kentucky and have lived together for 34 years. On February 13, 2014, they requested a Kentucky marriage license from the Jefferson County Clerk's Office, presenting the requisite identification and filing fees. The Commonwealth refused to issue them a license because they are a same-sex couple. They allege that their inability to obtain a marriage license has affected them in many ways. For example, last summer, Love underwent emergency heart surgery, which had to be delayed in order to execute documents allowing Ysunza access and decision-making authority for Love. As another surgery for Love is imminent, the couple fears what will happen if complications arise. The couple fears that healthcare providers and assisted living facilities may not allow them to be together or care for each other as they age. In addition, the couple has had difficulties with professional service providers; they found out after they purchased their home that their real estate attorney disregarded their request to include survivorship rights in the deed.

Maurice Blanchard and Dominique James reside in Louisville, Kentucky and have been together for ten years. On June 3, 2006, they had a religious marriage ceremony in Louisville. On January 22, 2013, they requested a Kentucky marriage license from the Jefferson County Clerk's Office, presenting the requisite identification and filing fees. The Commonwealth refused to issue them a license because they are a same-sex couple. They too have faced challenges as a result. For example, they allege that their neighborhood association will not recognize them as a married couple because Kentucky does not allow them to marry. In addition, their inability to obtain parental rights as a married couple has deterred them from adopting children. They also share a number of Love and Ysunza's concerns.

Plaintiffs assert that Kentucky's laws violate the Equal Protection Clause by denying

[989 F.Supp.2d 541]

them a marriage license and refusing them the accompanying benefits that opposite-sex spouses enjoy. See Bourke, ––– F.Supp.2d at –––– – ––––, 2014 WL 556729, at *2–3 (describing these benefits in detail). These benefits include but are not limited to: lower income and estate taxes, leave from work under the Family and Medical Leave Act, family insurance coverage, the ability to adopt children as a couple, the participation in critical legal and medical decisions on behalf of one's partner, and, perhaps most importantly, the intangible and emotional benefits of civil marriage. Plaintiffs seek an order declaring the state's pertinent constitutional and statutory provisions unconstitutional and enjoining their enforcement.

Although many courts have discussed the Equal Protection and Due Process Clauses in tandem, ultimately, this Court sees this case as more clearly about the imposition of a classification than about the contours of a due process right. The constitutional question is whether a state can lawfully exclude a certain class of individuals, i.e. homosexual persons, from the status and dignity of marriage. The Court will resolve Plaintiffs' claims solely on equal protection grounds.⁵

No one disputes that Kentucky's laws treat same-sex couples differently than opposite-sex couples who wish to marry in Kentucky. No one disputes that the equal protection issue before the Court involves purely questions of law. Therefore, Plaintiffs' challenge is properly resolved on summary judgment. The Court must decide whether Kentucky's laws violate Plaintiffs' federal constitutional rights.

II.

Before reaching the constitutional issues, the Court must address Defendant's preliminary argument that Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972), bars Plaintiffs' challenge to the Commonwealth's ban on same-sex marriage.⁶ In Baker, the Supreme Court dismissed “for want of a substantial federal question” a challenge to a Minnesota Supreme Court ruling, which found that a same-sex couple did not have the right to marry under the federal Due Process or Equal Protection Clauses. Id. (per curiam); see Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185, 187 (1971). Such a summary dismissal is usually binding precedent, see Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977), unless doctrinal developments indicate that the Court would rule differently now, see Hicks v. Miranda, 422 U.S. 332, 344, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975). Today, it is difficult to take seriously the argument that Baker bars Plaintiffs' challenge.

Since 1972, a virtual tidal wave of pertinent doctrinal developments has swept across the constitutional landscape. For example, Romer v. Evans invalidated under the Equal Protection Clause a state constitutional amendment that discriminated on the basis of sexual orientation. 517 U.S. 620, 635–36, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). Shortly thereafter, Lawrence v. Texas invalidated under the Due Process Clause a state law criminalizing

[989 F.Supp.2d 542]

homosexual sodomy. 539 U.S. 558, 578, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). Most recently, Windsor held unconstitutional Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, which defined “marriage” and “spouse” for the purposes of federal law in a way that excluded same-sex partners. 133 S.Ct. at 2695. In Windsor, the Supreme Court ignored the Baker issue in oral argument and in its opinion, even though the Second Circuit had ruled on it. See Windsor v. United States, 699 F.3d 169, 178–79 (2d Cir.2012). The Court's silence supports a view that Baker is a dead letter.⁷See Wolf v. Walker, 986 F.Supp.2d 982, 990–01, 2014 WL 2558444, at *5 (W.D.Wis.2014). Indeed, since Windsor, almost every court to confront this issue has found that Baker is not controlling.⁸ This Court concludes that, due to doctrinal developments, Baker does not bar consideration of Plaintiffs' claims.

III.

The most difficult part of the equal protection analysis here is determining the proper standard of review. Courts consider two factors. First, courts look to the “individual interests affected” by the challenged law. Zablocki v. Redhail, 434 U.S. 374, 383, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978) (quotation omitted). If a statutory classification “significantly interferes with the exercise of [a fundamental] right,” heightened scrutiny applies. Id.

Next, courts examine the “nature of the classification” imposed by the law. Id. The Supreme Court has fashioned three different levels of scrutiny that correspond to certain statutory classifications. Most statutory classifications receive rational basis review, under which the classification must only be “rationally related to a...