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New Developments in Kentucky and Virginia on Same-Sex Marriage – Is Florida Next?

Published: February 25th, 2014

By: Brad Gould Dana M. Apfelbaum

The week of February 10th, two United States District judges handed down Opinions relating to state prohibitions on same-sex marriage, one declaring Kentucky’s ban on recognizing same-sex marriages performed in other jurisdictions unconstitutional and one declaring Virginia’s bans on performing and recognizing same-sex marriage unconstitutional.  Both rulings came pursuant to the Fourteenth Amendment of the United States Constitution.

In Bourke v. Beshear, the United States District Court in the Western District of Kentucky ruled that Kentucky’s laws preventing the recognition of same-sex marriages legally performed in jurisdictions recognizing same-sex marriage was unconstitutional.   The court did not opine on Kentucky’s laws prohibiting the performance of same-sex marriages within the state.

In 1998, Kentucky enacted several statutory provisions related to same-sex marriage.  Section 402.005 of the Kentucky Revised Statutes defines “marriage” as a relationship that can only take place between one man and one woman.  Section 402.020(1)(d) of the Kentucky Revised Statutes prohibits same-sex marriage.  Section 402.040(2) of the Kentucky Revised Statutes declares same-sex marriage to be contrary to Kentucky public policy.  Section 402.045 of the Kentucky Revised Statutes declares same-sex marriages legally performed in another jurisdiction to be void and unenforceable in Kentucky.  Additionally, in 2004, Kentucky voters approved an amendment to the Kentucky Constitution limiting marriage to a relationship between one man and one woman, now included in Kentucky’s Constitution as Section 233A.

Relying heavily on U.S. v. Windsor, the court analyzed whether Kentucky’s laws violated the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.  This analysis first requires a determination of what level of scrutiny applies to the law, as laws treating certain groups of people differently are subject to more intense scrutiny based on a history of discrimination against such a group.  The court found no precedent for applying any heightened scrutiny in this case and applied the lowest level of scrutiny, rational basis review, which requires that the law being examined simply be rationally related to a legitimate government purpose.  Even at this lowest level of scrutiny, the court found the law unconstitutional and found no conceivable rational basis for the law.

The next day, the United States District Court in the Eastern District of Virginia issued an opinion in Bostic v. Rainey, finding Virginia’s ban on same-sex marriage, both with regard to allowing such marriages to take place in Virginia and recognizing same-sex marriages legitimately performed elsewhere, unconstitutional. 

In 1997, Virginia law was amended to limit marriage to a union between a man and a woman, prohibit same-sex marriage, and bar the recognition of same-sex marriages legally entered into in other jurisdictions.  Va. Code § 20-45.2.  Then, in 2004, the Virginia Legislature enacted the Affirmation of Marriage Act, prohibiting any arrangement akin to marriage between individuals of the same-sex and declaring such relationships created in other jurisdictions void and unenforceable in Virginia.  Va. Code § 20-45.3.  In 2006, the Virginia Constitution was amended and Article I, Section 15-A was added, creating a similar provision in the Virginia Constitution.

The court examined Virginia’s laws under the magnifying glass of both the Due Process and the Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution.  With regard to the Due Process Clause, as marriage is undoubtedly a fundamental right, any law infringing on such a right must pass strict scrutiny, or, in other words, “be narrowly tailored to serve a compelling state interest.”  The court found that the three justifications advanced for the law, namely tradition, federalism, and responsible procreation and optimal child rearing, did not survive strict scrutiny.  With regard to the Equal Protection Clause, the court did not rule as to whether a higher level of scrutiny applied to gay and lesbian individuals as it found that Virginia’s laws failed to pass even rational basis review.  Accordingly, the court found the laws unconstitutional.

Florida has a very similar legislative history to Kentucky and Virginia.  In 1977, on the heels of Anita Bryant’s “Save Our Children” campaign, Florida amended Section 741.04 of the Florida Statutes to prohibit the issuance of a marriage license to two persons of the same gender.  Then, in 1997, Florida enacted Section 741.212 of the Florida Statutes, defining marriage as only “a legal union between one man and one woman as husband and wife” and denying effect to same-sex marriages entered into legally in other jurisdictions.  Most recently, in 2008, Article I, Section 27 was added to the Florida Constitution, defining marriage as a union only between one man and one woman. 

Last month, twelve Floridians brought a suit in Miami-Dade County Circuit Court seeking the right to be married in Florida.  Although the rulings on the laws of Kentucky and Virginia have no immediate, legal effect on Florida’s laws, they are perhaps instructive on what is to come for Florida and the rest of the country.