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Stanford Law Attorney, ACLU Join Kentucky Plaintiffs' Team in Same-Sex Marriage Case

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The American Civil Liberties Union and an attorney from Stanford Law School’s Supreme Court Litigation Clinic have joined the legal team representing Kentucky couples challenging the state's constitutional ban on same-sex marriage.

The couples on Monday filed a response in support of Governor Steve Beshear's earlier petition urging the U.S. Supreme Court to hear the case and settle the same-sex marriage matter.

This means both parties want to see the case go before the Supreme Court.

This brings the total number of attorneys representing the plaintiffs in the case to 10.  Up to this point, five Louisville attorneys were on the case.

Joe Dunman, one of the Louisville plaintiffs' attorneys, said the case calls for added depth and experience.

“It’s much larger than just five attorneys can handle, and more important to the country that it’s done right and done thoroughly,” he said.

Dunman said the additional attorneys have valuable experience with the Supreme Court.

“Very few people can say that,” he said.  “The Supreme Court is an exclusive place and the vast majority of attorneys around the country will never practice in front of it and having experienced people on board is very great.”

Jeffrey Fischer, co-director of Stanford Law School’s Supreme Court Litigation Clinic, will be joining the plaintiff’s counsel.

Fischer has argued before the Supreme Court more than 20 times in the past, according to the Stanford Law School website.

He said he plans to bring some “additional expertise and resources to the legal team for what will hopefully be the next stage in the case.”

“It’s always helpful to have experience, when you’re in any court,” he said in a telephone interview.  “The same thing is true in the Supreme Court, it just helps to have some familiarity with the way the court runs and how it decides it cases."

Fischer is joining the Kentucky plaintiffs' team along with attorneys from the national ACLU and the ACLU of Kentucky, Dunman said.

The formal call for the Supreme Court to hear the case came two weeks after a 6th Circuit appellate court upheld Kentucky’s ban on same-sex marriage. The appellate court also upheld bans in Ohio, Michigan and Tennessee. The decisions marked a departure from other recent federal court decisions, leading some legal observers to believe that the Supreme Court would choose from among those cases to settle the same-sex marriage issue.

Shortly after the plaintiffs' attorneys appealed to the Supreme Court, attorneys representing Gov. Beshear filed a similar petition.

Dunman said it was an unusual move, but expected.

“Usually, when you win at the appeal court level you don’t want the Supreme Court to overturn it or look at the case,” he said.

Beshear has said he wants the Supreme Court to take on the case.

“As I have said all along, issues regarding same sex marriage should be ultimately decided by the U.S. Supreme Court in order to bring finality and certainty to this matter. This issue is a matter of exceptional importance, not just to Kentuckians but to the entire country,” Beshear has said in a statement.

And certainty is something the issue desperately needs, according to a filing from Beshear’s attorneys.

A Supreme Court ruling would quell the “legal chaos” surrounding the issue as appeals and district courts across the nation have not offered uniformity regarding same-sex marriage, which creates a “patchwork of inconsistent decisions resulting in uncertainty and confusion," the Beshear filing said.

Dunman and Fisher said the Kentucky case is unique because it begs a ruling on two key issues within the same sex marriage debate:  Ability to marry and recognition of marriage.

“It’s a more comprehensive case,” Fisher said.  “We think the (Supreme) Court ought to rule on both of those issues.  The court could reach all of the important legal questions in our case.”

But Dunman stressed there is no guarantee the Supreme Court will hear the case.

“The Supreme Court answers to nobody, they can do whatever they want,” he said.

If the Supreme Court decides not to take the Kentucky case, it would mean the “end of the road for Kentucky,” Dunman said.

But that wouldn’t mean the end for the legal fight for same-sex marriage in the 6th Circuit or across the country.

A decision from the Supreme Court on whether the cases will be reviewed could come as early as January, Dunman said.

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Jacob Ryan joined LPM in 2014. Ryan is originally from Eddyville, Kentucky. Email Jacob at jryan@lpm.org.