Gay divorce granted by family court judge

Despite a Kentucky law that bars the recognition of gay marriages performed where they are legal, a Jefferson Family Court judge has granted the state's first same-sex divorce.

In the first ruling of its kind in Kentucky, Judge Joseph O'Reilly permitted the divorce of two Louisville women who were legally married in Massachusetts.

Though state law says gay marriages performed elsewhere are void in Kentucky, O'Reilly said that barring same-sex couples to divorce here violates the state constitutional guarantee that all people should be treated as equals.

In an eight-page opinion dissolving the marriage of Alysha Romero and Rebecca Sue Romero, O'Reilly also noted that Kentucky divorce law requires that it be "liberally construed" to promote "amicable settlements" of disputes between spouses.

Alysha Romero said in an interview that she was pleased she and her ex-spouse would not have to spend the time and money to return to Massachusetts, where they were wed, to end their marriage.

"I am happy the judge made the right decision," she said.

Her lawyer, Louis Waterman, said: "I am just thrilled with Judge O'Reilly's courage. I think he had a lot of chutzpah to do what he did."

Douglas Haynes, who represented Rebecca Romero, said she was thrilled by the ruling but did not want to comment.

Chris Hartman, director of the Fairness Campaign, said the ruling "is just another step in the direction of full legal rights for LGBT couples."

Gay-rights opponents in Kentucky had predicted the divorce would not be granted.

Martin Cothran, an analyst with the Family Foundation of Kentucky, told The Courier-Journal after the divorce was filed in October 2013 that the marriage "can't either cease or continue because legally it does not exist." And Denny Burk, an assistant professor of biblical studies at Southern Baptist Theological Seminary, said "Kentuckians have a moral and legal interest in not recognizing gay 'marriage' even if means denying a gay 'divorce.' "

But no one, including Gov. Steve Beshear, who has defended the state's ban on gay marriage, intervened to try to prevent the divorce. Neither Cothran nor Burk responded Monday to requests for comment, while Beshear spokeswoman Kerri Richardson said he had no comment.

The ruling comes as the U.S. Supreme Court is poised to decide Friday whether to hear cases from Kentucky and three other states in which a federal appeals court ruled that there is no constitutional right to gay marriage.

O'Reilly issued the decision Dec. 29, but Waterman said he waited until now to make it public so that it would become final and couldn't be challenged. He said the ruling cannot be appealed and is now precedent in Jefferson County and can be cited but is not controlling in other cases statewide. O'Reilly did not seek re-election and retired at the end of the year.

Judges and family lawyers said last year that the Romeros' divorce was the first involving a same-sex marriage to be filed in Kentucky.

Kentucky law says that a marriage between members of the same sex that occurs in another jurisdiction "shall be void" in Kentucky, and that any rights granted "by virtue of the marriage, or its termination, shall be unenforceable in Kentucky courts."

But Waterman argued that denying a divorce to a same-sex couple would illogically thwart the state's ban on gay marriage by in effect requiring one to continue.

He also noted that Kentucky courts have held that marriages performed in other countries and states must be recognized for purposes of granting a divorce, even if marriage laws are different there than in Kentucky. For example, the Kentucky Court of Appeals has said couples married under common law in other states must be allowed to divorce here, even though Kentucky doesn't recognize common-law marriages.

Even if Kentucky law does not recognize same-sex marriages, Waterman urged O'Reilly to follow the lead of Wyoming's high court, which in 2011 allowed a judge to dissolve a same-sex marriage entered in Canada on the grounds that divorcing the couple did not involve recognition of the marriage as an "ongoing relationship."

O'Reilly, however, instead squarely ruled that barring a same-sex couple from divorcing in Kentucky violates the state constitution's guarantee of equal protection under the law and the right of citizens to "enjoy and defend their lives and liberties."

"The Constitution of Kentucky prohibits the exercise of absolute and arbitrary power over lives" of its residents, O'Reilly added, "even if that exercise is approved of by the largest majority."

The Romeros married in Boston in 2009 and moved to Kentucky in 2011, where Alysha worked as an administrative assistant in the University of Louisville's radiology department.

They filed for divorce in 2013 and entered a property settlement last spring.

Reporter Andrew Wolfson can be reached at (502) 582-7189