Gregory Bourke and Michael DeLeon were married in Canada nine years ago, and now they are suing Kentucky in order to have their marriage recognized as valid in that state. This marks the first lawsuit to challenge Kentucky’s ban on same-sex marriage since Section 3 of the Defense of Marriage Act was ruled unconstitutional.
The couple have asked that US District Judge John G. Heyburn II effectively rule Section 2 of the Defense of Marriage Act unconstitutional. DeLeon stated “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 dates back almost a decade to 2004, when then Republican National Committee Chairman Ken Melhman, who has subsequently come out as gay, used state bans on same-sex marriage to drive Republican voters out in order to help win George W. Bush reelection to the Presidency. The ban on same-sex marriage also includes language banning recognition of same-sex marriages from outside the state.
The two men feel that the recent DOMA decisions means that the time has come to challenge the marriage ban in Kentucky. Bourke noted that “We feel like victims of discrimination. That’s what this lawsuit is about, not being treated equally under the law.”
The American Civil Liberties Union and others have filed challenges to same-sex marriage bans in Pennsylvania, Arkansas, New Mexico, Virginia, Nevada, Hawaii and Michigan. Neither Attorney General Jack Conway nor Governor Steve Beshear have received copies of the lawsuit to review as of Friday.
Martin Cothran, a spokesman for the anti-gay Family Foundation of Kentucky, claimed that the two men would have a hard time making a case to overturn the ban on the recognition in Kentucky of same-sex marriages performed in other states. He also noted that the voters passed the amendment overwhelmingly in 2004 and that “we would oppose any effort to change what Kentuckians decided on that.”
Of course, Cothran might want to consider the fact that it did not matter that the voters passed a ban on same-sex marriage in California. The courts still overturned Prop 8. Furthermore, the case for overturning the recognition part of the ban on same-sex marriages and Section 2 of the Defense of Marriage Act is likely going to be very easy.
The Full Faith and Credit Clause of the United States Constitution states that “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.”
This was reaffirmed in the case Loving v. Virginia which stated, in part, that a person remains married to their spouse even if they cross state lines into a state which does not allow their form of marriage to exist.
Part of the push for Bourke and DeLeon to have their marriage recognized is their two adopted children, both teenagers. According to Dawn Elliott, the attorney for the two men, allowing same-sex couples to have their marriages recognized would protect their children and prevent them from being removed if something happened to the biological or legally recognized parent.
De Leon is the father of two adopted teens, and Bourke is designated their legal guardians, but they would like for both to be listed as parents to the children.