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As suits multiply, gay-marriage backers win in Ky.

Published: Wednesday, Feb. 12, 2014 7:59 p.m. CST

LOUISVILLE, Ky. – A federal judge ruled Wednesday that Kentucky must recognize same-sex marriages performed in other states, part of an unprecedented barrage of marriage-equality lawsuits in states where voters have overwhelmingly opposed recognition of gay and lesbian couples.

U.S. District Judge John G. Heyburn II struck down part of the gay-marriage ban that Kentuckians had approved in 2004, saying it treated gays and lesbians "in a way that demeans them."

"Assigning a religious or traditional rationale for a law does not make it constitutional when that law discriminates against a class of people without other reasons," wrote Heyburn, an appointee of Republican President George H.W. Bush.

His decision coincided with legal attacks Wednesday on gay-marriage bans in three other socially conservative states – Texas, Louisiana and Missouri – and was issued just a few weeks after federal judges in Utah and Oklahoma struck down the voter-approved bans in those states.

According to the advocacy group Freedom to Marry, there are now 45 pending marriage-equality cases in 24 of the 33 states that do not allow same-sex marriage. Seventeen states and the District of Columbia have legalized such unions, while three other states – Colorado, Nevada and Oregon – grant marriage-like rights though civil unions or domestic partnerships.

The stage for the current wave of litigation was set by the U.S. Supreme Court last June, when it ordered the federal government to recognize valid same-sex marriages, but stopped short of striking down state laws banning them. Gay-rights activists hope that one or more of the lawsuits filed since June or planned for the near future will reach the high court and lead to nationwide legalization.

"One of the 40-plus ongoing cases, or even some other one, could conceivably reach the Supreme Court as soon as 2015, or within a few years later, so the clock is ticking," said Freedom to Marry president Evan Wolfson.

"The aim is not just to get to the Supreme Court, but to win when we get there," Wolfson said.

The Kentucky decision came in lawsuits brought by four gay and lesbian couples seeking to force the state to recognize their out-of-state marriages.

The ruling only requires Kentucky to recognize such marriages. It does not deal with the question of whether the state can be required to issue marriage licenses to same-sex couples; that issue wasn't brought up in the lawsuits.

One of the plaintiffs, 55-year-old Gregory Bourke of Louisville, said the only surprise was the speed with which the ruling came down. The lawsuit was filed in July 2013.

"The word was it could happen any time, and I wasn't prepared for it," Bourke said. "It's what we hoped for."

The ruling drew the ire of religious leaders who said Heyburn's decision takes away Kentucky's right to determine its policies regarding marriage.

Paul Chitwood of the Kentucky Baptist Convention, the state's largest religious organization with 750,000 members, called the ruling "tragic and disappointing."

"This decision moves us down the slippery slope toward launching Kentucky into moral chaos and depriving children of their innate need of both a father and a mother," Chitwood said.

Tony Perkins, president of the conservative Family Research Council, assailed Heyburn's ruling as "another example of the deep betrayal of a judicial system infected with activist judges who are legislating from the bench."

Among the developments elsewhere:

• In Texas, a lawyer representing the state asked a federal judge to reject pleas from two gay couples to suspend the state constitution's definition of marriage as between one man and one woman.

Mike Murphy, an assistant solicitor general, told District Judge Orlando Garcia that if he lifted the voter-approved ban on gay marriage, he would be injecting himself into a social and political debate that should be left to lawmakers.

"These questions are political questions, not constitutional rights," Murphy told the court. "Same-sex marriage is not included in the fundamental right of marriage ... it is a more recent innovation than Facebook."

Garcia was considering a request by two couples for a temporary ruling that would immediately lift the Texas gay-marriage ban pending a trial later. Garcia did not immediately rule or indicate when he might release a written decision but predicted the case, or a similar one in another state, will reach the Supreme Court.

The case is the first of its kind in Texas, and in the conservative 5th U.S. Circuit Court of Appeals.

Texas Attorney General Greg Abbott, a Republican running for governor, opposes legalizing gay marriage and has vowed to defend the law.

Attorneys general in other states have taken mixed approaches to court challenges to bans on gay marriage. Utah and Oklahoma are fighting rulings lifting their bans, while in Nevada and Virginia, attorneys general have chosen not to defend them.

• In Missouri and Louisiana, gay-rights advocates filed lawsuits similar to those in the Kentucky case, seeking to force the states to recognize same-sex marriages performed in places that allow them.

The Missouri lawsuit was filed by the American Civil Liberties Union in a Kansas City state court on behalf of eight same-sex couples who live in Missouri and were married elsewhere. Among the plaintiffs were Janice Barrier and Sherie Schild, of St. Louis County, who have been together for 33 years and married in Iowa in 2009. Both Barrier, 61, and Schild, 60, have battled cancer in recent years, and they worry about what the future holds if the state refuses to recognize their marriage.

"We're really concerned that if one of us would end up in a nursing home we might not have the same rights to care for each other in privacy that different-sex married couples enjoy in Missouri," Barrier said. "It's so very important to us that we're not torn apart at the very end of our lives."

The Louisiana suit was filed in federal court by a state gay-rights group, the Forum for Equality Louisiana, on behalf of four gay couples. It says state revenue department policy essentially requires married same-sex couples who file joint federal tax returns to falsely claim they are single on state returns – a violation, the Forum says, of free speech.

The lawsuit also challenges the state's refusal to recognize both members of a same-sex union as parents of a child born to them or adopted.

___

Crary reported from New York. Associated Press writers Chris Tomlinson in San Antonio, Jim Salter in St. Louis and Janet McConnaughey in New Orleans contributed to this report.

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