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How Lawsuits Against Kentucky's Gay Marriage Ban Reached The U.S. Supreme Court

Scott, Creative Commons.

Kentucky’s case before the Supreme Court started with a conversation between attorneys Shannon Fauver and Dawn Elliott.

As they chatted in Fauver's Louisville office, the U.S. Supreme Court was considering a challenge to the federal Defense of Marriage Act, a piece of legislation that was an obstacle to same-sex marriage being made legal in the U.S.

"We were waiting actually for the Supreme Court on the Windsor case and at that point we didn’t know what the ruling was going to be—and they kept postponing," Fauver said.

"And we were talking about what would happen next, like would be the next steps for anybody to take," she said. "And we were talking about the fact that someone should file a lawsuit here, and we checked around and no one was talking about it."

That conversation would lead to lawsuits that have gone all the way to the U.S. Supreme Court.

On Tuesday, the justices will hear oral arguments for same-sex marriage lawsuits, and the plaintiffs include 12 couples from Kentucky. Once a Supreme Court decision is made, expected this summer, the question of whether states must allow same-sex marriage will be answered.

This is how the Kentucky part of the case originated.


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After her conversation with Elliott and the Windsor ruling, Fauver talked to a lesbian couple she knew.

They were more than interested—Kim Franklin and her wife, Tammy Boyd, were eager to seek recognition of their marriage.

"We wanted to be that couple or part of that group that said, 'We are going to stop and we are not going to let those people that come behind us go through the things we’ve had to go through," said Kim Franklin.

"But we never really thought it would come to be. So when the opportunity presented itself to us we immediately talked about it that night, I called Shannon right back and said, 'We're in."

Michael De Leon said he found out about the potential for such a lawsuit from the HR manager at his work. The HR manager knew of the lawyers' efforts to find couples to challenge Kentucky's same-sex marriage ban.

He and his husband, Greg Bourke, signed on too.

Soon after, the Fauver law firm filed for the couples.

"Our attorneys were working feverishly to get a case ready so it could be filed ASAP because we didn’t know if there would be other cases or not," Bourke said.

"There could have been. Turns out there weren’t. There were like us and this other plaintiff couple and these two attorneys, and we seemed to be the only six people that cared about gay marriage."

And the challenge to Kentucky's same-sex marriage ban, which was enacted through a 2003 state constitutional amendment that was approved in a voter referendum, was underway.

Fauver said: "Dawn and I were working on the cases. And then because we practice other kinds of laws it became overwhelming for the practice, because it is a very small firm."

Later, other attorneys—Dan Cannon, Laura Landenwich and Joe Dunman—were added to the case.

The initial lawsuit challenging Kentucky's same-sex marriage ban was filed in July 2013 and sought recognition of out-of-state unions.

Plaintiffs Discuss How They Met, and Why They Sued

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In February of the following year, a federal judge in Louisville struck down the state's ban, writing that it violated the equal protection clause of the 14th amendment of the U.S. Constitution. Soon after, couples seeking to get married in the state joined the lawsuit, and the same judge struck down the entirety of the 2003 constitutional ban on same-sex marriage.

"That was, when we won that we were just elated and the words that were chosen by Judge (John) Heyburn that you know that is was an equal right, it was an equality and not some other reason," De Leon said.

But the ruling was almost immediately stayed, and Kentuckians waited to see whether the state would appeal the judge’s ruling.

And then they got another victory—but only for a moment.

In March 2014, Attorney General Jack Conway chose to not challenge the judge's order—but almost immediately after Conway's announcement, Gov. Steve Beshear said he'dhire outside counsel to file an appeal.

This took many by surprise—particularly the lead plaintiffs in the case.

"You know, we were on top of the world and Greg and I were headed downtown to a luncheon that day. So we got a snippet of Beshear doing something. So you know, we had this huge balloon and Beshear just pops it," De Leon said.

Beshear would later say he wanted the same-sex marriage question settled once and for all by the Supreme Court.

The governor's office would give the job of filing an appeal to the firm VanAntwerp, Monge, Jones, Edwards & McCannof Ashland, Ky. The case, argued before an appeals court in Cincinnati, was joined by similar cases from Michigan, Ohio and Tennessee.

In November, the appeals court sided with the states and upheld the same-sex marriage bans. To that point, appeals courts had only sided with plaintiffs.

That set up the Supreme Court in January to announced that it would consider the same-sex marriage question through the Kentucky, Ohio, Michigan and Tennessee cases.

"Immediately it was 'Oh my God,'" Franklin said. "It was an immediate reaction of you know heart drop, calling her and saying “baby, baby, we are going to the Supreme Court."

The plaintiffs’ have hired two prolific attorneys to argue before the court, and the U.S. solicitor general will also argue on behalf of the couples.

Almost two hundred briefs from groups all over the country have been filed with court in this case.

The lawyers and plaintiffs are confident the justices will rule in favor of gay marriage—but no one is certain.

Regardless, Kentucky’s lawsuits are a piece of history—one of the largest civil rights cases in recent years.

Once the nation’s highest court rules, the legal issues behind marriage equality in the United States should be settled once and for all.

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