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Marjorie
JONES et al., Appellants, v. James HALLAHAN, Clerk of the Court of Appeals of 501
S.W.2d 588 [Opinion by Vance]. The appellants, each of whom is a female person, seek
review of a judgment of the Jefferson Circuit Court which held that they were
not entitled to have issued to them a license to marry each other. Appellants contend that the failure of the clerk to
issue the license deprived them of three basic constitutional rights, namely,
the right to marry; the right of association; and the right to free exercise
of religion. They also contend that
the refusal subjects them to cruel and unusual punishment. The sections of Webster's New International Dictionary, Second Edition,
defines marriage as follows: "A state of being married,
or being united to a person or persons of the opposite sex as husband or
wife; also, the mutual relation of husband and wife; wedlock; abstractly, the
institution whereby men and women are joined in a special kind of social and
legal dependence, for the purpose of founding and maintaining a family." The Century Dictionary and Encyclopedia defines marriage
as: "The legal union of a man
with a woman for life; the state or condition of being married; the legal
relation of spouses to each other; wedlock; the formal declaration or
contract by which a man and a woman join in wedlock." Black's Law Dictionary, Fourth Edition, defines marriage
as: "The civil status, condition
or relation of one man and one woman 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." n1 KRS 402.020(5) and KRS
402.210 do contain references to the male and female of the species. Marriage was a custom long before the state commenced to
issue licenses for that purpose. For a
time the records of marriage were kept by the church. Some states even now recognize a common-law
marriage which has neither the benefit of license nor clergy. In all cases, however, marriage has always
been considered as the union of a man and a woman and we have been presented
with no authority to the contrary. It appears to us that appellants are prevented from
marrying, not by the statutes of A license to enter into a status or a relationship which
the parties are incapable of achieving is a nullity. If the appellants had concealed from the
clerk the fact that they were of the same sex and he had issued a license to
them and a ceremony had been performed, the resulting relationship would not
constitute a marriage. This is a case of first impression in Baker v. Nelson considered many of the constitutional
issues raised by the appellants here and decided them adversely to
appellants. In our view, however, no
constitutional issue is involved. We
find no constitutional sanction or protection of the right of marriage
between persons of the same sex. The claim of religious freedom cannot be extended to
make the professed doctrines superior to the law of the land and in effect to
permit every citizen to become a law unto himself. Reynolds v. In substance, the relationship proposed by the
appellants does not authorize the issuance of a marriage license because what
they propose is not a marriage. The judgment is affirmed. All concur. |
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