In the lawsuit, the plaintiffs asked only that they be allowed to have their legally sanctioned out-of-state marriages to be treated as valid in Kentucky. The couples got married in California, Iowa, Connecticut and Ontario, Canada. One couple has been together for 44 years.
But the language that Judge Heyburn used in his 23-page opinion could just as easily be extended some day to allow same-sex marriages to be performed within Kentucky. He said Kentucky's prohibition violates the United States Constitution's guarantee of equal protection under the law by treating gays and lesbians "differently in a way that demeans them."
The judge sought to explain to those who would be offended by his decision, especially those with strong religious beliefs. He pointed out that a law based only on religious beliefs or traditions "does not make it constitutional when the law discriminates against a class of people without other reasons."
He also shot down the notion that marriage is based on procreation. "The exclusion of same-sex couples on procreation grounds makes just as little sense as excluding post-menopausal couples or infertile couples on procreation grounds," the judge said.
The plaintiffs, he said, "in many respects are average, stable American families" entitled to such legal benefits as the right to take time off under the federal Family Medical Leave Act and the inheritance tax exemption for a surviving spouse.
Judge Heyburn also mentioned the "virtual tidal wave" of judicial rulings that forbid states from barring gays and lesbians from marrying.
Governor Steve Bashear and Attorney General Jack Conway both said it was premature to decide whether to appeal the ruling. If they do appeal, the case would go to 6th U.S. Circuit Court of Appeals in Cincinnati. Bashear, a Democrat, predicted the case ultimately will be decided by the Supreme Court.
The Family Trust Foundation of Kentucky submitted a brief on behalf of the state's case, but the foundation apparently is not a defendant and thus would not be able to appeal the judge's decision on its own.
Although some opponents of same-sex marriage condemned Judge Heyburn as a "liberal activist," he in fact was appointed to the court by President George W. Bush with the backing of Senate Minority Leader Mitch McConnell.
The decision in Kentucky comes two days after Nevada officials decided not to use the courts to prohibit same-sex marriages in their state.
Thus far, 17 states allow same-sex couples to marry.
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