Gregory Bourke of Louisville has waited a long time for his day in court.
“Thirty-two years we’ve been together," Bourke told WKU Public Radio. "Most other couples would have been married and recognized and put all this to rest a long time ago.”
Bourke, his husband, and their adopted children will be in the courtroom Wednesday as the 6th U.S. Circuit Court of Appeals takes up gay marriage fights in Kentucky and three other states.
“I think this is a major historic moment in the history of American constitutional law," suggested Dr. Patti Minter, a legal and constitutional historian at WKU.
The cases from Kentucky, Tennessee, Ohio, and Michigan are each unique, but they all deal with whether statewide gay marriage bans violate the Constitution.
Gregory Bourke and husband Michael De Leon were the first Kentucky couple to file a federal lawsuit requesting their out-of-state marriage be recognized in the commonwealth.
“If this is something that would be done for a heterosexual couple, it doesn’t make sense to us that it’s not recognized for a same-sex couple," remarked Bourke. "If another couple married in Ontario, Canada and moved to Kentucky, their marriage would be legally recognized by the state, but in our case it doesn’t work that way. In our mind, it’s a clear case of discrimination.”
Bourke and De Leon met in 1981 as students at the University of Kentucky. They married in Canada in 2004, the same year Kentucky voters approved a constitutional amendment defining marriage as between one man and one woman.
“This was our strike or our attempt to counteract some of that negativity that we were encountering here at home," added Bourke. "There was a lot of backlash in Kentucky against same-sex couples.”
U.S. District Judge John Heyburn issued two rulings this year that said Kentucky’s ban on same-sex marriages is unconstitutional and the state must recognize gay marriages performed elsewhere. Governor Steve Beshear appealed the rulings when Attorney General Jack Conway refused, calling Kentucky’s ban on gay marriage discriminatory. The governor, however, has remained neutral, never revealing his personal beliefs on the matter.
“My sole purpose in pursuing an appeal of this case is to get a final answer for every Kentuckian in terms of what the law will be from here on in this country," Beshear said in an interview with WKU Public Radio.
Attorneys for Beshear will argue the state has a legitimate reason to ban same-sex marriage because only a male and female couple can naturally procreate, and therefore, gay unions threaten the state’s birthrate and economic prosperity. Critics have ridiculed the argument as absurd and irrational, but Beshear stands by the claim.
“Everybody is pursuing all of the arguments that have been made," he said. "Other states are making the same arguments we are and vice versa.”
“It’s not the argument we would have made," stated Martin Cothran, senior policy analyst with the Family Foundation of Kentucky. “Our argument is that any state has the right to define marriage. The other substantive reason is that marriage is good for children, a father and mother are good for children.”
Martin, who spearheaded the 2004 amendment, contends that Judge Heyburn’s ruling amounts to judicial overreach.
“This is another situation of un-elected federal judges taking the right of deciding certain issues away from voters," Cothran suggested. "It’s another example of the rise and power of federal courts in taking away people’s rights to decide for themselves.”
Dr. Patti Minter, a legal and constitutional historian at WKU, believes opponents of gay marriage have a lot of convincing to do.
“What you see are 31 amicus briefs that have been submitted, and only five of them support the idea that same-sex marriages should not be recognized," she explained.
Professor Minter says a precedent has been established since last year’s U.S. Supreme Court ruling that struck down the federal Defense of Marriage Act.
“There has not been a single decision that went against the idea that marriage is a fundamental right for all people," Minter informed. "The trend is pretty clear that state-level bans on same-sex marriage are in pretty serious jeopardy right now.”
If the appellate judges rule that Kentucky must recognize out-of-state gay marriages, Gregory Bourke doesn’t expect day-to-day life with his husband to be any different, but from a legal standpoint, he says the couple has a lot to gain.
“A lot of laws that relate to married people don’t apply to us, things like inheritance rights and the fact that we have two children and the commonwealth won’t allow us both to adopt them," explained Bourke. "In our case, my husband is the adoptive parent for our two children and I am a legal guardian, so they’re not recognized by the commonwealth as my children despite raising them for the past 15 years.”
Twice this summer, federal appellate courts have voted to strike down bans on same-sex marriage. Based on those rulings, Bourke is confident headed into Wednesday's hearing, but he knows anything can happen.
“The 6th Circuit Court has, I believe, has the highest rate of overturning decisions from lower courts, and if you read about the judges on our panel, two of them were appointed by George W. Bush, and so we’re a little concerned we might have a very conservative panel of judges," he added.
The appeals court is expected to rule within a matter of weeks, and regardless of the outcome, legal experts believe the cases are steam rolling on to the U.S. Supreme Court.
