By Bob Allen
Four same-sex couples in Kentucky, including a Baptist minister, asked the U.S. Supreme Court to overturn the state’s ban on gay marriage in a 60-page brief filed Feb. 27.
Petitioners included Maurice “Bojangles” Blanchard, a gay-rights activist ordained to the ministry in 2012 by Highland Baptist Church in Louisville, Ky., and his partner, Dominique James. The legal brief was ordered by the high court when justices agreed Jan. 26 to consider their lawsuit claiming Kentucky’s refusal to grant them a marriage license violates their constitutional right to equal protection under the law.
Lawyers from three other states also filed initial briefs in a total of four cases consolidated for oral arguments April 27 in Washington with a decision expected before the end of June.
According to the brief, Blanchard and James, a couple for 10 years, had a religious commitment ceremony officiated by Blanchard’s father, who is also a minister, in 2006.
“When Maurice and Dominique purchased a home they had to seek out real estate professionals with experience working with same-sex couples to ensure that their joint rights to the property were protected as much as possible,” according to the brief.
After the Jefferson County clerk’s office in Louisville denied their request for a marriage license in January 2013, Blanchard and James were arrested for refusing to leave when the office closed at 5 p.m.
A jury found them guilty of trespassing in November 2013, imposing a 1 cent fine. Blanchard called it “a great moral victory” that indicated the jury understood what they were trying to say.
On Valentine’s Day 2014, Blanchard, James and another gay couple filed a lawsuit claiming that a federal judge’s decision two days earlier that Kentucky must recognize same-sex marriages performed legally in other states should also apply to couples like them denied marriage benefits because the state refused to grant them a license.
Senior U.S. District Court Judge John G. Heyburn II allowed the new couples to join the case and decided July 1, 2014, that Kentucky laws preventing same-sex couples from wedding violate the Equal Protection Clause of the 14th Amendment.
A three-judge panel of the 6th U.S. Circuit Court of Appeals combined the Kentucky case with other legal challenges to laws banning gay marriage in Michigan, Ohio and Tennessee, reversing Heyburn’s decision and ruling that voters have a right to define marriage in their state.
Observers expect the appeal to the Supreme Court to resolve once and for all whether there is a constitutional right to gay marriage, something about which lower courts disagree.
The Kentucky couples’ Supreme Court brief said they “make no extreme demands.”
“Instead, they ask merely to be treated like everyone else — that is, free to enter into society’s most revered form of mutual association and support, and worthy of the stature and crucial protections that marriage affords.”
They said framers of the 14th Amendment “knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress,” citing laws once on the books enforcing segregation and denying equal rights to women.
They said court decisions “regarding gay people and their intimate relationships have traced a similar arc,” with Lawrence v. Texas, a landmark Supreme Court decision in 2003 striking down state sodomy laws and the 2012 decision in U.S. v. Windsor striking down the federal Defense of Marriage Act as unconstitutional.
“The time has come to apply this principle to state laws excluding same-sex couples from the institution of marriage,” the brief argued. “As a result of exhaustive litigation across the country, it has become clear that these laws degrade lesbians, gay men, their children and their families for no legitimate reason.”
“The laws consign their most intimate and meaningful relationships — their very identities — to official disfavor,” the gay couples argued. “And the laws unjustifiably wall off same-sex couples from legal protections, benefits and responsibilities that envelop the nuclear family in America. It thus falls upon this court to declare that the laws violate the 14th Amendment’s guarantee of liberty and equality for all persons.”
The brief noted that Kentucky never bothered to define marriage for 200 years, until the Hawaii Supreme Court suggested in 1993 that the Aloha State might be required to issue marriage licenses to same-sex couples.
Kentucky, along with other states, responded with a series of 1998 statutes defining marriage as between one man and one woman.
Gay marriage continued to gain ground, with California creating “domestic partnerships” for same-sex couples in 1999 and Vermont passing a law recognizing “civil unions” the following year. Massachusetts became the first state in which the Supreme Court established the right of same-sex couples to wed in 2003.
Advocates against same-sex marriage in several states, including Kentucky, initiated campaigns to amend state constitutions to protect what they called “traditional marriage” from political processes and “activist” judges.
In their petition, however, the Kentucky plaintiffs argue that “a desire to forestall social change” is not a legitimate state interest and cannot be used to deny legal benefits and protections offered to married heterosexuals on the basis of sexual orientation.