A same-sex marriage loophole the size of Canada

Same-sex marriage activists haven’t taken much down time to celebrate their victory after the U.S. Supreme Court’s DOMA decision. And they’ve already chosen their next target: A state’s right to not recognize same-sex marriages performed in other states.

Or other countries, in some cases.

Two men from Louisville, Ky., filed a federal lawsuit on Friday challenging that state’s laws against recognizing same sex-marriages performed out-of-state. The partners want Kentucky to recognize their 2004 Canadian union, according to the Courier-Journal. The suit, filed against Gov. Steve Beshear, Attorney General Jack Conway, and Jefferson County Clerk Bobbie Holsclaw, calls for a permanent injunction requiring Kentucky to recognize out-of-state unions. The men have already adopted two children, and want the ability to file joint tax returns, access health benefits, and easily inherit assets.

The Supreme Court struck down the Defense of Marriage Act last month, extending federal recognition to same-sex marriages already sanctioned by some states. But the decision did not affect Section 2 of the act, which allows states with same-sex marriage bans to refuse to recognize ceremonies performed in other states. Since the decision, however, lawyers have taken up cases to challenge that right throughout the country. An Ohio judge recently ordered that state to recognize a same-sex marriage performed in Maryland, despite Ohio’s same-sex marriage ban.

Louisville law partners Shannon Fauver and Dawn Elliot took the Kentucky case after deciding it was time for someone to challenge the state’s ban and went looking for plaintiffs.

“We thought somebody should do it,” Fauver told the Courier-Journal. “It’s our duty as lawyers to try to right wrongs when we see them.”

Fauver said this case does not seek to lift the ban entirely, a move that would probably require a separate case. But if states are forced to accept same-sex marriages from other states, it would effectively establish the unions nationwide.

Rep. Stan Lee, a Republican state lawmaker in Kentucky, told the Courier-Journal he didn’t expect the case to hold up in court, and saw little reason to revisit an issue the legislature has already voted on.

Since the high court’s DOMA decision, suits against same-sex marriage bans have been filed in Oklahoma, Louisiana, New Jersey, Pennsylvania, North Carolina, and Virginia. Some challenge the states’ refusal to recognize unions legalized elsewhere. Others attack the bans as discriminatory and therefore unconstitutional.

“Instead of going through the regular process to change the law, they want to go out and find judges who will invent rights that support their political agenda,” Martin Cothran, senior policy analyst for the Kentucky Family Foundation, told Citizen Link. Cothran was also a lead lobbyist for the 2004 Kentucky Marriage Protection Amendment. “They now want the courts to find a right to same-sex marriage that’s been somehow hidden in the Constitution for almost 250 years and that nobody noticed before. We can imagine what the Founders would have said about this, and it isn’t pretty.”