LOUISVILLE, Kentucky — A Kentucky judge has granted a divorce to a same-sex couple — even though the state does not recognize gay marriage.
Kentucky law says that same-sex marriages performed elsewhere are void in the state, and any rights granted by virtue of the marriage, or its termination, are unenforceable in Kentucky courts. But in his recent ruling in Louisville, Judge Joseph O'Reilly said that denying same-sex couples the right to divorce would run counter to constitutional protections.
"The Bill of Rights of the Kentucky Constitution recognizes and provides that all persons are equal," wrote O'Reilly, a Jefferson County Family Court judge. "That includes same-sex couples. ... To permit legally married heterosexual couples to dissolve their marriages and deny legally married same-sex couples the right to dissolve their marriages constitutes the grant of separate privileges to legally married heterosexual couples in violation of the Bill of Rights of the Kentucky Constitution."
Both attorneys in the case said they believe the judge's action was a first in the state, and said their clients were satisfied with the outcome. It was first reported by The Courier-Journal.
"I'm thrilled that Judge O'Reilly had the courage to do what he did," said Louis Waterman, who represented Alysha Romero in the divorce from Rebecca Romero. The ruling will not face an appeal because the only parties who could have sought one were the Romeros, Waterman said.
O'Reilly's ruling can be cited by other judges hearing similar cases across Kentucky, but those judges are not bound to his ruling, he said. O'Reilly did not seek re-election and retired at the end of the year, the Louisville newspaper reported.
The Romeros were married in Boston on Dec. 10, 2009, and moved to Kentucky in 2011. They separated in September 2013.
At the time of the divorce filing, Alysha Romero worked as an administrative assistant at the University of Louisville's department of diagnostic radiology. Rebecca Romero, who suffered a disabling injuring while serving in the U.S. military, was a student at the time.
If O'Reilly had not permitted the divorce, the couple faced uprooting their lives and moving back to Massachusetts or another state that recognizes same-sex marriage, staying long enough to gain residency and then filing for divorce, their attorneys said.
"These parties are not seeking to marry in the Commonwealth (of Kentucky)," the judge wrote. "They were lawfully married under the laws of the Commonwealth of Massachusetts. To require them to relocate to a different state in order to obtain a divorce would constitute an arbitrary exercise of power prohibited by the Kentucky Constitution."
Chris Hartman, director of the Louisville-based Fairness Campaign, a gay-advocacy group, said the judge's ruling was historic.
"Even divorce is a fundamental right if we're going to afford LGBT couples all the legal rights of marriage," he said. "So it simply is one more step in the direction of LGBT couples having the same legal rights."
Kent Ostrander, executive director of The Family Foundation, based in Lexington, Kentucky, was critical of the ruling.
"Because Kentucky does not validate or recognize same-sex marriages, it puzzles me how the judge can find the authority to first recognize the marriage and then dissolve it," he said.
O'Reilly's ruling comes as the U.S. Supreme Court weighs whether to hear cases from Kentucky and three other states after a federal appeals court last November upheld laws against gay marriage in those states. The cases decided were from Ohio, Michigan, Kentucky and Tennessee.
Waterman predicted that same-sex divorce cases eventually won't cause any more of a stir than cases involving heterosexual couples.
"Nobody will care, and that's a wonderful thing," he said.
Information from: The Courier-Journal, http://www.courier-journal.com
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