Reminder: Same-Sex Marriage is at Risk in Kentucky – and State Courts Probably Can’t Save It

Blog Post | 111 KY. L. J. ONLINE | February 27, 2023

Reminder: Same-Sex Marriage is at Risk in Kentucky – and State Courts Probably Can’t Save It

By: Kathleen Dudgeon, Staff Editor, Vol. 111

If Dobbs v. Jackson Women’s Health taught us anything, it’s that no United States Supreme Court precedent is safe. Roe v. Wade protected reproductive rights for almost 50 years until it was overturned by Dobbs.[1] Justice Clarence Thomas’s concurrence in Dobbs called for multiple landmark cases, including Obergefell v. Hodges, to be revisited entirely due to defective reasoning.[2] Even though the Dobbs majority dicta stated it does not threaten Constitutional protection of same-sex marriage, the decision itself contradicts that statement.[3] The fact that Dobbs overturned nearly 50 years of precedent proves that any precedent – even that which many Americans believed was untouchable— can be overturned. This includes same-sex couples’ right to marriage.[4] Thus, it is completely rationale to think the same fate that befell Roe can befall Obergefell as well.[5] And if that happens, there doesn’t appear to be anything Kentucky state courts can do.

Legal scholars differ on whether same-sex marriage is truly jeopardized given Dobbs.[6] Considering Roe grounded reproductive rights in substantive due process concepts of liberty and privacy, there is a logical argument that Obergefell will not suffer Roe’s same fate because it protects same-sex marriage under broad substantive due process rights and the Equal Protection Clause of the 14th Amendment.[7]

Unfortunately, that logic is flawed. For one, Justice Thomas thinks substantive due process is judicial fiction; there exists no federal rights not named in the Constitution.[8] Furthermore, the Obergefell dissenters, who agreed with the Dobbs majority (excluding Justice Antonin Scalia who passed away in 2016), do not think same-sex marriage is a question of equal protection but a question of states’ rights.[9]  Those Justices draw a distinction between the structure of marriage – historically between one man and one woman – and the characteristics of men and women who may marry (referring to the Loving v. Virginia decision holding states may not discriminate based on race in marriage).[10] In their view, because same-sex marriage is not a right “deeply rooted in the Nation’s history and tradition,” states should be free to enact their own theories of marriage. [11]  

If the same-sex marriage issue returns to the U.S. Supreme Court, it is plausible that Obergefell will be overturned on two grounds: 1) under Justice Thomas’s belief that substantive due process rights unnamed in the Constitution do not exist; and 2) the traditional structure of marriage is not a question of equality, but a question of states’ rights.[12] In that event, same-sex marriage would not be guaranteed by any provision of the Constitution according to the current Supreme Court. It will be up to the states, yet again, to decide if same-sex marriage is legal in their jurisdiction. Therefore same-sex couples would find no relief in federal claims.

Without federal Constitutional protection, same sex marriage will automatically become illegal in Kentucky as it is explicitly prohibited by both state constitutional and statutory provisions.[13] Kentucky statute is unequivocal: valid marriage is between one man and one woman; marriages between same-sex couples are void and unenforceable.[14] Section 233A of the Constitution of Kentucky states the same, adding that nothing similar to marriage will be recognized for same-sex couples either.[15] Because Ky. Const. § 233A explicitly bans same-sex marriage in Kentucky, our state courts, bound by the state constitution, cannot protect same-sex marriage on state law grounds. Thus, same-sex couples hoping to be married in a post-post-Obergefell era couldn’t turn to Kentucky state courts for help either.

So, what happens in Kentucky if Obergefell is overturned? In this scenario, county clerks won’t have to issue marriage licenses to same-sex couples.[16] Think back to 2015: the clerks will have complete statutory and constitutional authority to do what Kim Davis made headlines for doing.[17] While state courts should hopefully recognize same-sex marriages from pre-overturn of Obergefell because those couples already relied on Obergefell’s precedent, [18] that reliance principle is not guaranteed nor would it extend to same-sex couples not already legally married.

Continuing the hypothetical, if Kentuckians are unable to seek relief in federal or state court, what else can they do? The last option is the conservative Kentucky General Assembly and the court of public opinion. Like Kentucky voters added §233A to the state constitution by ballot initiative in 2004, the General Assembly could theoretically offer Kentucky voters another constitutional amendment to repeal §233A, or at least amend the section to include same-sex couples.[19] That would require persuading Kentucky’s overwhelmingly conservative General Assembly to propose and place such an amendment on the next state-wide election ballot.[20]  The odds of convincing the current General Assembly to propose such a ballot initiative is very slim given the majority of Kentuckians’ stance on the issue.[21] A staggering 74% of Kentuckians voted to constitutionally ban same-sex marriage in 2004. More recent polls from the Pew Research Center tell us only 38% of Kentuckians support same-sex marriage while 52% “oppose/strongly oppose” same-sex marriage.[22]

Although a constitutional amendment appears the only possible avenue for legalizing same-sex marriage in Kentucky, it appears unlikely until more Kentuckians support marriage equality. This unlikelihood is validated by an abhorrent fact many of us may not know: the Kentucky Constitution still permits slavery.[23] While all Kentuckians oppose slavery in any form, the constitutional provision remains.

The era of relying on the Courts for meaningful social change is seemingly waning. The power to protect the rights of LGBTQ+ Kentuckians truly lies within the people of the Commonwealth and their willingness to advocate. The grim reality is that, given current state laws and the trajectory of the United States Supreme Court, it is up to Kentuckians to call on the General Assembly for a constitutional amendment. In that case, our state courts must strike down the state statute prohibiting same-sex marriage, even if it could not on federal constitutional grounds. We don’t have to wait until Obergefell is overturned to raise awareness.

[1] Roe v. Wade, 410 U.S. 113 (1973); Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022).

[2] Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. at 2301 (2022) (“For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”) (Thomas, J., concurring).

[3] Dobbs, 142 S. Ct. at 2239.

[4] Jon W. Davidson, Why There’s Hope for the Supreme Court’s Obergefell Marriage Precedent, NBC News (June 30 2022), https://www.nbcnews.com/think/opinion/roe-supreme-courts-obergefell-gay-marriage-precedent-safe-rcna36198, (Davidson, co-counsel in Obergefell, writes that “. . . a court willing to overturn 49 years of precedent regarding reproductive freedom might also be willing to overturn equal protection rulings, as well.”); see also Austin Horn, With Abortion in Limbo, What About Other Rights in Kentucky?, The Lexington Herald Leader (July 14 2022), https://www.kentucky.com/article263395508.html.  

[5] Austin Horn, With Abortion in Limbo, What About Other Rights in Kentucky?, The Lexington Herald Leader (July 14 2022), https://www.kentucky.com/article263395508.html.

[6] Id.

[7] Id.

[8] Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022) (Thomas, J., concurring).

[9] Obergefell v. Hodges, 567 U.S. 644 (2015) (Roberts, C.J., dissenting).; Dobbs v. Jackson Women’s Health, 142 S. Ct. 2228.

[10] Loving v. Virginia, 388 U.S. 1 (1967).

[11] Obergefell, 567 U.S. at (Roberts, C.J., dissenting).

[12] Obergefell, 567 U.S. at 53 (Roberts, C.J., dissenting).  

[13] Dobbs, 567 U.S. at 2235.

[14] KRS § 402.020.

[15] KRS § 402.020; Ky. Const. § 233A.

[16] Id.

[17] Jaclyn Diaz, Kim Davis Violated Same-Sex Couples’ Rights by Refusing Marriage Licenses, National Public Radio (Mar. 19 2022), https://www.npr.org/2022/03/19/1087723875/kim-davis-court-same-sex-marriage.

[18] Supra note 5 (Professor Salamanca explains that “reliance” may preserve rights of same-sex married couples.)

[19] Ky. Const. § 256.

[20] Id.

[21]Pew Research Center, Views About Same-Sex Marriage Among Adults in Kentucky (2023), https://www.pewresearch.org/religion/religious-landscape-study/state/kentucky/views-about-same-sex-marriage/.

[22]BallotPedia, Kentucky Marriage Amendment, (2004) https://ballotpedia.org/Kentucky_Marriage_Amendment_(2004); Pew Research Center, Views About Same-Sex Marriage Among Adults in Kentucky (2023), https://www.pewresearch.org/religion/religious-landscape-study/state/kentucky/views-about-same-sex-marriage/.

[23] Ky. Const. § 25.