Ky. ordered to recognize out-of-state gay marriages

• Federal judge ruled Feb. 12 that state%27s ban violated Constitution%27s equal protection guarantee
• He did not rule that Kentucky must allow gay marriages to be performed in the state
• He did not grant the state a 90-day delay to decide whether it would appeal the order

LOUISVILLE, Ky. — A federal judge Thursday ordered Kentucky officials to recognize the marriages of same-sex couples performed out of state.

U.S. District Court Judge John Heyburn ruled that Kentucky's Constitution and laws banning recognition of such marriages "violate the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, and they are void and unenforceable."

The decision amounted to a final ruling on his Feb. 12 opinion in the case.

"We are cautiously optimistic," said Dan Canon, a lawyer for the four gay and lesbian couples who won the case. "The order has been granted without qualification and without a stay."

At least two of the couples in the suit said they planned to take some legal actions as soon as possible:

• Greg Bourke, who married Michael De Leon in 2004 Ontario, said he would amend adoption papers for their two children so Bourke's name could be added as their parent.

• Jimmy Meade and Luther Barlowe of Bardstown, Ky., who married in 2009 in Iowa, said they would go to a state driver's license office and take each other's last names, according to one of their lawyers, Dawn Elliott.

"Everyone has different needs, but they are very excited," said Chris Hartmann, director of the Fairness Campaign. He said he has talked to many Kentucky gay couples who are considering amending their tax returns to file jointly.

Kentucky Attorney General Jack Conway had asked the judge Thursday to delay his order by 90 days to give him the chance to decide whether to appeal. The motion said that Gov. Steve Beshear, also a defendant, needed time as well to decide how to implement the order if it is not appealed.

Heyburn will have a hearing on the motion at 2:30 p.m. ET Friday.

Elliott said she is quietly encouraging her clients to take advantage of the ruling now before Heyburn rules on the state's motion for a stay.

The motion suggests that Conway is at least considering joining six other state attorneys general who have decided not to appeal rulings throwing out marriage bans. Those officials, all Democrats, said the laws are discriminatory and violate the right to equal protection under the law.

Conway has said he is legally bound to defend Kentucky statutes and its marriage amendment, but U.S. Attorney General Eric H. Holder Jr. declared Monday that state attorneys general are not obligated to defend laws they believe are discriminatory. In an interview with The New York Times, Holder said officials who have carefully studied bans on gay marriage could refuse to defend them.

In his 23-page opinion earlier this month, Heyburn said Kentucky's ban, which has been in place since 2004, deprives gays and lesbians of numerous legal protections available to opposite-sex couples and violates the constitutional guarantee of equal protection under the law.

Heyburn's ruling doesn't affect a related lawsuit seeking to force the state to issue marriage licenses to same-sex couples.

The decision in the socially conservative state comes against the backdrop of similar rulings or actions in other states such as Texas and Virginia where same-sex couples have long fought for the right to marry. Almost three-fourths of voters approved Kentucky's constitutional ban on same-sex marriage in 2004, and it included the out-of-state clause.

On Wednesday, a federal judge in Texas struck down that state's gay marriage ban but immediately delayed the implementation of his ruling pending appeals from the state.

Kentucky's proposed order only requires Kentucky to recognize the marriages of gay and lesbian couples performed in other states or countries. It does not deal with whether the state can be required to issue marriage licenses to same-sex couples, an existing ban that two gay couples have asked Heburn to strike down.

Martin Cothran, a senior policy analyst for the Family Foundation of Kentucky, criticized the state attorney general's handling of the case, accusing him of "spiking" the state's defense by not making persuasive arguments to keep the ban in place.

"If this were a private case, it would be legal malpractice," Cothran said. "The longer the attorney general drags his feet on this case, the worse it is for Kentucky voters."

Laura Landenwich, a lawyer representing several of the couples who sued, said a delay in implementing the ruling leaves state employees in legal limbo.

"Basically, you are the state officer and employee and you need to know what you can and can't do," Landenwich said. "It'll be interesting to see what happens."

Wolfson reports for The (Louisville, Ky.) Courier-Journal.