Kentucky Judge Okays Marriage Ban

Same-sex marriage proponents fail to undo last November’s plebiscite

A state trial judge in Kentucky has rejected a challenge mounted by same-sex marriage proponents to a state constitutional amendment overwhelming adopted by voters last November that bans such unions.

Unlike a recent federal court decision that struck down a similar Nebraska amendment, the May 26 decision by Franklin Circuit Judge Roger L. Crittenden does not involve any federal constitutional issues, which were not raised by the same-sex marriage plaintiffs.

The Kentucky amendment is not quite as far-reaching as some of the 10 others adopted last year. The amendment restates the essential provision of Kentucky’s Defense of Marriage Act, that only a marriage between one man and one woman is legally recognized in Kentucky, and goes on to provide that “a legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.”

The unclear wording in the second part of the amendment suggests that other legal recognition of same-sex relationships, such as domestic partnerships or civil unions, are also barred or, as the plaintiffs in this lawsuit contended, it might be more broadly interpreted to prevent the state government from recognizing unmarried couples for any purpose.

Charlotte Wood, Willie Thomas Boddie, Jr. and the Reverend Albert M. Pennybacker, all opponents of the amendment, were plaintiffs in the lawsuit. Kentucky law allows any voter to file a challenge, on limited grounds, to the validity of an amendment adopted by the electorate.

The plaintiffs argued that the question placed on the ballot inadequately informed the voters about the effect of the proposed amendment, and that the amendment itself violated a state constitutional requirement that amendments relate to a single issue. Crittenden rejected both arguments.

The ballot question put before voters simply reworded the amendment in the form of a question, which the challengers argued failed a statutory requirement that such questions be “calculated to inform” the voters about the substance of the issue. A simple restatement did not make clear the extent of its effect on the legal rights of unmarried couples, they argued. The amendment could potentially bar the enforcement of agreements between couples, prevent them from obtaining protection under domestic violence laws (as has happened in Ohio, where a more expansive form of anti-marriage amendment was passed last year), prevent government employers from adopting partner benefits programs, and other limitations, the plaintiffs argued, but none of these impacts were made clear by the ballot question.

Crittenden found that Kentucky courts have interpreted the relevant statute as imposing a more limited duty on the government in framing the ballot question. The verbatim rendering of the amendment met the standard, he found.

Crittenden also found that the plaintiffs’ argument that voters might not have realized the extent of the deprivations for unmarried couples they approved was not relevant in the interpretation of state law.

On the question of whether the amendment violated the single-subject rule, Crittenden also took a broad view of what the state constitution requires in terms of framing a ballot question. The plaintiffs had argued that “voters in favor of banning same-sex marriages but who might otherwise support the extension of some of the rights, benefits, and responsibilities of marriage to same-sex couples were unable to vote accordingly.” But Crittenden accepted the argument that a general relationship of the subjects addressed in an amendment is sufficient to comply with the single-issue rule, so long as the several propositions contained in the amendment “are not distinct or essentially unrelated.”

“It cannot be said that the second clause of the amendment pertaining to legal status ‘identical to or similar to marriage for unmarried individuals’ is so foreign that it has no bearing upon a constitutional definition of marriage,” wrote Crittenden.

Crittenden concluded with a reminder that as a trial judge he was bound to follow the precedents established by the state’s appellate courts, seeming to signal that however he might feel about the validity of the plaintiff’s arguments, they would have to bring them to a higher court with authority to take a fresh look at precedent if they wanted to succeed in challenging the amendment.

It is unclear whether the plaintiffs or organizations backing their lawsuit were planning to appeal the decision.

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