Law School Case Brief
Jones v. Hallahan - 501 S.W.2d 588 (Ky. 1973)
Kentucky statutes do not specifically prohibit marriage between persons of the same sex nor do they authorize the issuance of a marriage license to such persons. Ky. Rev. Stat. Ann. §§ 402.020(5), 402.210 do contain references to the male and female of the species.
A same sex couple applied for a marriage license, which was refused by the county clerk. The women brought an action against the clerk to issue the marriage license. The trial court denied the action holding that the women were not entitled to have issued to them a license to marry each other. On appeal, the women argued that the refusal to issue the license deprived them of their basic constitutional rights.
Were the women deprived of their basic constitutional rights when the county court clerk denied their application for a marriage license?
The Court held that no constitutional issue was involved. According to the Court, marriage had been a custom long before the state commenced to issue licenses for that purpose. The Court noted that in all cases, marriage had always been considered as the union of a man and a woman. The Court concluded that the two women were prevented from marrying by their own incapability of entering into a marriage, as that term had been defined.
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