By Jon Fleischaker and Ashley Pack, Kentucky Press Association General Counsels, Dinsmore & Shohl
The legal landscape is changing rapidly. Same-sex marriages are now legal in Kentucky. While Kentucky laws do not currently protect sexual orientation, we anticipate that discrimination laws will be expanded in the near future to include prohibitions against discriminating against an individual on the basis of his or her sexual orientation in the workplace and in public accommodation laws. 
In fact, many cities and towns already have ordinances prohibiting such discrimination. We expect that there will be a new line of cases contesting various issues associated with same sex marriages and the expansion of sexual orientation laws, and a newspaper’s decision to not publish a same-sex marriage announcement (while it treats other marriage announcements differently) may well be determined to be discriminatory.
In any event, it will be time-consuming and expensive to defend any such lawsuit. We have been through similar experiences in dealing with fair housing advocates, who regularly review housing and apartment ads in Kentucky newspapers and make claims for damages when they see what they view as alleged discrimination in violation of the Fair Housing laws. It is not only a serious irritant to those involved, but it is costly to litigate and/or settle such claims. There can be no such claims with same sex marriage announcements if all marriage announcements are treated the same.
Many newspapers in Kentucky currently charge for the publication of marriage announcements. As a best practice, we recommend that the newspaper develop a policy charging a fee for the publication of all marriage announcements. This takes any editorial decision out of the newspaper’s hands, i.e., whether or not to publish a same-sex marriage announcement. Treating all marriage announcements equally ensures that a newspaper is not discriminating against any group or class on the basis of sexual orientation, and thereby avoiding potentially costly litigation in the future.
And that begs the question: How are local officials handling the ruling?
Judge Executives can perform marriages but some have said they will no longer perform the ceremony. County clerks issue marriage licenses and a couple few are holding ground to suspend that practice.
And then there’s the Alabama Supreme Court Chief Justice who has told the probate judges in Alabama that they do not have to issue same-sex marriage licenses.
Really? So how come our governor stands fast that clerks have no choice in Kentucky? Do your job or leave office! While in Alabama, a chief justice takes the opposite approach for the probate judges: If you don’t want to issue them, don’t.
But back to locally, if your judge executive is now refusing to do a wedding ceremony or your county clerk is refusing to issue marriage licenses, drop me a note at dthompson@kypress.com. We’ll see if they handle the issue with more difficulty than newspapers just charging for the space to publish the announcement.
You can find the full story on the Kentucky Press Association bulletin by clicking here.
