Four same-sex couples who validly married outside the state challenged Kentucky laws that prohibited the state from recognizing their marriages and that excluded them from the benefits of marriage available to married opposite-sex couples. On February 12, 2014, District Court Judge John G. Heyburn ruled that Kentucky’s marriage laws violated the Equal Protection Clause of the Fourteenth Amendment. In his opinion, Judge Heyburn declared that the state’s “laws treat gay and lesbian persons differently in a way that demeans them,” and that Kentucky must recognize same-sex marriages performed in other states. Because Kentucky’s Attorney General declined to defend the marriage laws on appeal, the state’s appeal to the United States Court of Appeals for the Sixth Circuit was pursued by Governor Steve Beshear. The Sixth Circuit stayed Judge Heyburn’s ruling pending appeal.

On June 16, 2014, Constitutional Accountability Center and the Cato Institute jointly filed a friend-of–the-court brief in Bourke, urging the court of appeals to uphold the lower court’s decision. Our brief demonstrated that the text and history of the Fourteenth Amendment guarantee equality under the law and require equality of rights for all classes of persons and groups, including gay men and lesbians. The Framers of the Fourteenth Amendment recognized the right to marry as a basic civil right of all persons. As our brief demonstrated, the Amendment’s sweeping guarantee of equality unambiguously applied to the plaintiffs in Bourke, and prohibited the discriminatory marriage laws at issue in this case.

Bourke was one of three cases before the Sixth Circuit involving marriage equality in which CAC filed an amicus curiae brief. The others were Tanco v. Haslam and DeBoer v. Snyder. On November 6, 2014, the Sixth Circuit handed down an opinion authored by Judge Jeffrey Sutton (and joined by Judge Deborah Cook) reversing the rulings of the courts below; Judge Martha Daughtrey dissented. With this decision, the Sixth Circuit became the first federal court of appeals since United States v. Windsor to uphold state laws denying marriage equality to same-sex couples and created a split among the circuit courts of appeals. Plaintiffs filed a petition for a writ of certiorari with the Supreme Court on November 18th, which was granted on January 16, 2015. In Bourke – and its companion cases Obergefell v. Hodges, Tanco, and DeBoer – the Supreme Court will resolve two questions, whether the Fourteenth Amendment requires states to license the marriages of same-sex couples, and whether the Fourteenth Amendment requires states to recognize the marriages of same-sex couples legally entered into in other states.

On March 6, 2015, CAC filed an amicus curiae brief in the consolidated cases, urging the Supreme Court to reverse the Sixth Circuit’s ruling. For more information about the consolidated cases and CAC’s involvement, please visit our Supreme Court case page for Obergefell, et al.