Sunday, October 31, 2004
Amendment won't be last word, foes say
Courts may be next venue if Ky. voters approve marriage definition
By Murray Evans
The Associated Press
LEXINGTON - Those on both sides of the debate over same-sex marriage in Kentucky agree on one thing: even if voters approve a constitutional amendment to ban gay marriage, the issue isn't going away any time soon.
"Nov. 2 is not going to be the end of the issue," said State Sen. Ernesto Scorsone of Lexington, the state legislature's only openly gay member.
In April, the General Assembly voted to place a question on the ballot asking voters if they favor amending the Kentucky Constitution to provide that "only a marriage between one man and one woman shall be a marriage in Kentucky." The amendment also would ban civil unions.
Kentucky is one of 11 states that will vote Election Day on ballot initiatives banning gay marriage.
A Bluegrass Poll published in The Courier-Journal on Tuesday found 76 percent of likely voters polled said they would vote for the amendment. That was even higher than in a poll a month earlier, which found 72 percent of likely voters supporting the amendment.
Kent Ostrander, the executive director of the Family Foundation of Kentucky, said he is optimistic that the amendment will pass, "because we believe most Kentuckians want to say yes to the protection of marriage."
But in the same breath, he adds, "We do anticipate a court challenge from those working against the amendment and we believe the amendment will be sustained."
A similar amendment to the Louisiana constitution, approved with 78 percent of the vote on Sept. 18, is being challenged in that state's courts. A district judge ruled the state legislature's approval of the amendment was constitutionally flawed, and an appeals court sent the issue to the state Supreme Court, which will hear arguments in the case Dec. 1.
A spokeswoman for a group campaigning against the Kentucky amendment's passage wouldn't say if that group would try to challenge the amendment in court. Sarah Reece, the campaign manager for "NO on the Amendment," said only that "the work for fairness and equality will continue" after the election.
Scorsone, a lawyer, said the amendment could either be challenged through political means - such as a repeal effort - or in federal courts.
"It's too broad," Scorsone said. "It hurts a lot of people, not just gay people. It's really contrary to what our constitution is all about. Our constitution says that no matter how big the majority is, it can't trample on the rights of the minority. Here we seem to be doing just that."
Carolyn Bratt, a law professor at the University of Kentucky, said part of the amendment could have major legal ramifications, because it refers to "unmarried individuals."
She said that domestic violence orders might no longer be available for unmarried couples, either same-sex or opposite-sex. She said the amendment would invalidate governmental "relationship recognition measures" for all unmarried couples.
Ostrander disputed that and said the amendment - which will supersede a state law already in place that offers a similar definition of marriage - won't change the everyday reality for anyone.
"We believe that all of the suggestions that people will lose rights or benefits because it has passed are absurd," he said of the amendment.
"It is my belief that everyone who has rights and benefits on Nov. 1 will have those exact same rights and benefits on Nov. 3."
State Rep. Stan Lee of Lexington, also a lawyer, supports the amendment and said a federal court challenge would fail.
"I think the federal court would say that marriage is a states-rights issue," Lee said.
Reece said that whether or not her group prevails, the process has been a success.
"We're going to consider Nov. 2 a major victory, no matter what the numbers show," she said. "We win every day, every time we talk to a voter, because that voter understands that basic protection for all folks is a value we believe in in Kentucky."
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