July 29, 2013
Last Friday, two gay men in Kentucky who wed in Canada in 2004 filed a lawsuit against state officials in federal court, arguing that Kentucky’s marriage laws violate the due process and equal protection provisions of the U.S. Constitution. Gregory Bourke and Michael Deleon, two residents of Louisville who met as students at the University of Kentucky and have been together for 31 years, married in Ontario, Canada in 2004 but are considered legal strangers in Kentucky, which bans recognition of same-sex marriages.
In the couple’s complaint, filed in conjunction with their two teen-aged children, Bourke and Deleon frequently cite the recent Supreme Court decision in United States v. Windsor invalidating the Defense of Marriage Act, writing that Kentucky’s marriage equality ban “undermines the Plaintiff couples’ ability to achieve their life goals and dreams, threatens their mutual economic stability, and denies them ‘a dignity and status of immense import.’”
Bourke and Deleon directly compare the arguments made in support of Kentucky’s constitutional amendment during its legislative passage to the arguments in support of the Defense of Marriage Act made by Congress in 1996, describing similar rationales of “maintaining the status quo,” preserving limited public resources and protecting children by encouraging childrearing by opposite-sex couples. Pushing back against these claims, the complaint argues that “[t]he justifications given at the time were similar to those in support of the Defense of Marriage Act and none of these justifications, or any other justification that might now be offered, passes Constitutional muster.”
In addition to citing the Windsor decision, Bourke and Deleon call on the Supreme Court’s landmark 1967 ruling in Loving v. Virginia, which struck down bans against interracial marriage across the United States, drawing upon its legal reasoning to argue that American jurisprudence and society has evolved over the years to rethink laws pertaining to mariage in favor of greater equality:
History has taught us that the vitality of marriage does not depend on maintaining such discriminatory laws. To the contrary, eliminating these unconstitutional aspects of marriage has enhanced the institution. Ending the exclusion of lesbian and gay couples from marriage is not different.
In 2004, Kentucky voters approved the addition of marriage equality ban to the state constitution by a 74-26 percent margin. The 2004 ban not only prohibited same-sex couples from wedding in Kentucky itself, but also banned any recognition of out-of-state marriages, such as the one obtained by Bourke and Deleon in Ontario.
This marriage scheme, the couple write in their complaint, harms same-sex couples financially and emotionally, restricting them from eligibility for certain federal benefits and denying them state legal protections. Bourke and Deleon argue that Kentucky’s marriage laws violate same-sex couples’ fundamental right to marriage under the due process clause and discriminates against them on the basis of both sex and sexual orientation. In making their sexual orientation claim, the couple call for the more searching form of constitutional review known as heightened scrutiny, but argue that Kentucky’s laws are unconstitutional under any form of scrutiny.
Intriguingly, Bourke and Deleon are joined in their challenge as plaintiffs by their two adoptive children (who are unnamed in the complaint). As the couple notes in their complaint, only one of them is allowed by Kentucky law to be listed as the children’s adoptive parent, while the other parent was forced to obtain legal guardian status through the courts.
The case’s official name is Bourke v. Breshear. According to USA Today, the couple’s lawyers decided to challenge Kentucky’s ban after the Supreme Court’s ruling on DOMA:
Shannon Fauver and Dawn Elliott, law partners in Louisville, said the Supreme Court ruling also was encouraging and decided that someone should challenge Kentucky’s constitutional ban on same-sex marriage. So, the partners began looking for a couple to work with on a lawsuit and found De Leon and Bourke.
“We thought somebody should do it,” Fauver said. “It’s our duty as lawyers to try to right wrongs when we see them.”
Below, via Scribd, is the initial complaint. (H/t to Kathleen for this filing.)