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A Stay For Now, but Not Forever, Kentucky Chamber, HR Newsletter, April 2014

Attorneys

Kentucky Chamber, HR Newsletter, April 2014

Authored by Cynthia L. Effinger

On March 19, U.S. District Judge John G. Heyburn II agreed to stay his February 27 ruling on same-sex marriages in Kentucky "until further order." The newest ruling is not the end of the issue, but is rather a "wait-and-see" approach that may ultimately bring about uniformity and clarity, although those who are waiting for equality are understandably frustrated with the setback.

The issue of same-sex marriage in the state, as well across the country, has had a tumultuous recent history. On February 12, 2014, U.S. District Judge John G. Heyburn II issued a preliminary ruling that same-sex marriages legally performed in other states must be recognized in Kentucky, overturning parts of a 2004 state constitutional amendment barring recognition of same-sex marriages performed elsewhere. Judge Heyburn's ruling was made final on February 27 th, but on February 28 th, the Judge issued a twenty (20) day stay, thereby delaying enforcement of his ruling to May 20, 2014. The delay was meant to allow for state officials time to figure out how to implement the ruling, but it soon became clear that Governor Beshear would appeal the decision. After Attorney General Jack Conway publicly announced he would not be "defending discrimination" by fighting the landmark ruling, Governor Beshear moved for an extension of the stay on March 14. A notice of appeal was officially filed by counsel for the Governor on March 18.

In considering whether to stay the enforcement of his own order, Judge Heyburn had to consider four factors:

(1) Whether the stay applicant [Governor Beshear] has made a strong showing of success on the merits;

(2) Whether the applicant will be irreparable injured absent a stay;

(3) Whether the issuance of a stay will substantially injure other parties interested in the proceedings; and,

(4) Where the public interest lies.

After review of each of the factors, Judge Heyburn found the facts to be "mixed" in favor of both parties, but could not ignore a similar case from Utah, Herbert v. Kitchen, wherein the United States Supreme Court intervened and ordered a stay - a highly unusual move. Since that case, three additional cases in which Plaintiffs sought the issuance of marriage licenses have entered stays on their rulings pending appeals.

In his motion, Governor Beshear warned of the chaos that would result if Kentucky recognizes same-sex marriage now only to have to revert back to non-recognition months or years later following a decision from the United States Court of Appeals for the Sixth Circuit or the United States Supreme Court. In the four-page order, Judge Heyburn stated, "It is best that these momentous changes occur upon full review, rather than risk premature implementation or confusing changes." The Judge recognized in his order that the potential impact on businesses and services where marital status is relevant is a legitimate concern.

According to Judge Heyburn, it is the appeals process that gives the judicial system such "high credibility and acceptance" and it was this belief in the process that led to him granting the stay, despite the real harm to plaintiffs. While this case advances to the Court of Appeals, Judge Heyburn is considering another same-sex marriage case involving the issuance of marriage certificates within the state.

While the stay means that employers (many confused by what the Heyburn order required) will not have to scramble to institute changes, they still must take stock of their current employee-related policies and benefits that involve spouses. Kentucky employers may still be required to provide federal benefits to same-sex spouses in accordance with the Supreme Court's Windsor decision and subsequent federal agency rulings.

Cynthia L. Effinger , an Associate of the firm, joined McBrayer, McGinnis, Leslie & Kirkland PLLC in 2012. Ms. Effinger's practice is concentrated in the areas of employment law and commercial litigation. She also has experience with First Amendment litigation, securities litigation and complex litigation. Ms. Effinger may be reached at (502) 327-5400, ext. 316 or ceffinger@mmlk.com .

This article is intended as a summary of state and federal law and does not constitute legal advice.

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