The U.S. Supreme Court ended the debate on whether same-sex couples can marry, but one Kentucky lawmaker has a new plan to circumvent this decision. State Rep. Joseph M. Fischer (R) is happy to let same-sex couples marry, but only different-sex couples will be able to enter “matrimony.”
Fischer has introduced HB 572, the “Matrimonial Freedom Act” — an epic 454-page bill that creates the new status of “matrimony.” Declaring that the Supreme Court has established an “absolute Tyranny over these States,” the bill asserts, “we have full power to define marriage and to establish a new institution of matrimony in this Commonwealth,” adding, “with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.”
“Matrimony” is a simple concept. Any couple can marry, and any individual who is married is considered to be part of a “matrimony” if “the married couple is composed of two individuals of the opposite sex.” Conversely, the bill outlines that “if the married couple is composed of two individuals of the same sex,” it is not considered a “matrimony”:
As used and recognized in the law of the Commonwealth, “matrimony” refers only to the civil status, condition, or relation of one male human being (“husband”) and one female human being (“wife”) united in law for life, for the discharge to each other and the community of the duties legally incumbent upon those whose association is founded on the distinction of sex.
The bill is over 450 pages long because, once it defines “matrimony,” it proceeds to add the term throughout all of Kentucky law. For the statutes that define the basic parameters of marriage, duplicate language is added defining “matrimony” by the exact same parameters. But anywhere that the law outlines a privilege, benefit, or responsibility previously made available to marriage, the word “marriage” is replaced by the word “matrimony.”
For example, the bill amends Kentucky statute 216.515, which addresses the rights of residents of long-term care facilities. Where that law grants married residents the right of private spousal visits as well as the right to a shared room with their spouse if they both live in the same facility, HB 572 replaces the word “is married” to “has entered into matrimony.” Thus, the law would only apply to married different-sex couples, not married same-sex couples.
A cursory glance at the long bill suggests that it effectively removes all marital rights from every possible state statute, from parenting rights to insurance rights and so on — reserving these privileges only for couples that have “entered into a matrimony.”
Fischer’s long bill has a short partner, HB 571, which would amend the Kentucky Constitution to declare, “Only a matrimony between one man and one woman shall be valid or recognized as a matrimony in Kentucky” — just in case the law didn’t make it clear.
It seems highly unlikely that the separate-and-unequal status of matrimony would pass any sort of constitutional muster. Justice Anthony Kennedy made clear in the majority opinion in Obergefell that the language of “marriage” was irrelevant. “The challenged laws [banning same-sex marriage] burden the liberty of same-sex couples,” he wrote, “and they abridge the central precepts of equality.” The laws were unequal because “same-sex couples are denied benefits afforded opposite-sex couples.”
Fischer’s plan of providing benefits only to opposite-sex couples through a “matrimony” runs directly afoul of this reasoning. A marriage by any other name enjoys the same constitutional protection.