Gay Couple Challenges Kentucky’s Ban On Same-Sex Marriage


A couple in Kentucky has joined the ranks of countless others who are fighting state-wide bans on same-sex marriage, USA Today reports. The lawsuit, filed in Louisville Friday morning by attorneys Shannon Fauver and Dawn Elliot, is the first federal challenge to Kentucky's ban on same-sex marriage which not only prohibits same-sex couples from marrying in Kentucky but also denies recognition of same-sex marriages performed elsewhere. The couple who brought the suit, Michael DeLeon and Gregory Bourke, married in 2004 in Ontario, Canada but have been together for over 30 years, first meeting in college at the University of Kentucky. DeLeon and Bourke have adopted two children together, a son, now 15, and a daughter, 14. Part of their motivation in filing was to have the same rights and securities afforded to heterosexual couples and their children. DeLeon told USA Today,"There's no reason why we should be second-class citizens…We should be at the table with everybody else."

Kentucky's ban on same-sex marriage was added to the state's constitution in 2004, a big year for anti-gay marriage activists who capitalized on then-widespread disapproval of gay marriage following Massachusetts's state Judicial Supreme Court ruling in favor of same-sex marriage and San Francisco Mayor Gavin Newsom's issuing of marriage licenses to gay couples at San Francisco City Hall. You'll recall 2004 was also the year that President George W. Bush advocated amending the US constitution to ban same-sex marriage on a federal level. Ten states in addition to Kentucky ammended their constitutions that year to include language prohibiting same-sex marriage. 

However, the tide has begun to turn with the US Supreme Court's gutting of DOMA and effective overturn of California's same-sex ban, Prop. 8. Of the day those rulings were handed down Bourke said, "That was probably the most hopeful day we've had in our 31 years of being together." Immediately after, Fauver and Elliot saw an opportunity to make a change in Kentucky, and they began to seek out a couple they could represent to challenge the state's ban. "We thought somebody should do it…It's our duty as lawyers to try to right wrongs when we see them," Fauver said. In their 19 page brief, Fauver and Elliot hit all the right notes, invoking equal protection, heightened scrutiny, and discrimination:

"Kentucky’s exclusion of same-sex couples from marriage infringes on the
Due Process and the Equal Protection Clauses of the Fourteenth Amendment
to the United States Constitution. This discriminatory treatment is
subject to heightened scrutiny because it burdens the fundamental right
to marry and because it discriminates based on sex and sexual
orientation. But it cannot stand under any level of scrutiny because the
exclusion does not rationally further any legitimate government
interest. It serves only to disparage and injure lesbian and gay couples
and their families."

You can read the full brief via WLKY HERE.

(Photo via WLKY)


  1. Syzygy says

    Just hope all these folks aren’t jumping the gun and filing suits due to impatience. If they start losing in a lot of the ultra conservative states, it could blunt the momentum for easier wins elsewhere that would ultimately sway a dwindling number of hold out states.

  2. MiddleoftheRoader says

    Syzygy, you called it right – people and their lawyers are just jumping on a bandwagon to file lawsuits. There doesn’t seem to be any strategy here, and there will be lots of decisions by conservative courts that will uphold the state marriage bans. So the momentum will definitely be blunted, and everyone will suffer. Many of these lawsuits don’t even have the involvement of the ACLU, or Lamdba Legal, or Boies / Olsen — just the people and lawyers who names are now getting the publicity.

  3. RONTEX says

    I agree to an extent about jumping the gun but if these cases in conservative states are denied can’t they be appealed all the way to the Supreme Court? If that’s the case then they will rule in the plaintiff’s favor, no?

  4. Michael Ejercito says

    At the time Windsor was decided, there were already existing lawsuits against marriage laws in Nevada, Hawaii, Texas, Oklahoma, Utah, and Michigan. Indeed, the Oklahoma case is the oldest pending lawsuit.

  5. Liam says

    @RONTEX — not necessarily — the problem with no coordinated strategy is that bad facts, bad lawyering, or a host of other things can create serious weaknesses in a particular case. If that case makes it to the Supremes first, it gives Scalia and his ilk the chance to pull a swing vote or two.



    one of the weaknesses in this particular case is that the complaint does not allege that the plaintiffs sought a marriage license. This is not an insurmountable weakness (the plaintiffs merely have to apply for a license to gain standing), but if they fail to do so, the district court will dismiss the case for lack of jurisdiction.