In Bourke, a U.S. district court found that the Equal Protection Clause requires Kentucky to recognize valid same-sex marriages from other jurisdictions.

Named as defendants were Kentucky Governor Steve Beshear and Attorney General Jack Conway, as well as Sue Carole Perry, Shelby County Clerk.

[8] In a decision issued February 12, 2014, Judge Heyburn found that Kentucky must recognize same-sex marriages from other jurisdictions because withholding recognition violates the U.S. Constitution's guarantee of equal protection.

[11] He wrote:[1] [T]he Court concludes that Kentucky's denial of recognition for valid same-sex marriages violates the United States Constitution's guarantee of equal protection under the law, even under the most deferential standard of review.

Accordingly, Kentucky's statutes and constitutional amendment that mandate this denial are unconstitutional.He pointed out the evolution of judicial recognition of same-sex marriage: "In Romer, Lawrence, and finally, Windsor, the Supreme Court has moved interstitially ... establishing the framework of cases from which district judges now draw wisdom and inspiration.

He then bifurcated the case and allowed the new plaintiffs to intervene and argue against Kentucky's denial of marriage licenses to in-state same-sex couples.

He is hesitant to answer in the affirmative, reasoning that "holding that the fundamental right to marry encompasses same-sex marriage would be a dramatic step that the Supreme Court has not yet indicated a willingness to take" (emphasis added.)

(citing Lawrence v. Texas, 539 U.S. 558 at 575) He does the analysis required and finds the heightened scrutiny of a "quasi-suspect" class applies to the case; but even under the lower "rational basis" review, the state does not bear its burden in justifying exclusion of same-sex couples from marriage.

[3] It said it was bound by the U.S. Supreme Court's 1972 action in a similar case, Baker v. Nelson, which dismissed a same-sex couple's marriage claim "for want of a substantial federal question."

Dissenting, Judge Martha Craig Daughtrey wrote: "Because the correct result is so obvious, one is tempted to speculate that the majority has purposefully taken the contrary position to create the circuit split regarding the legality of same-sex marriage that could prompt a grant of certiorari by the Supreme Court and an end to the uncertainty of status and the interstate chaos that the current discrepancy in state laws threatens.

[25] The court asked the parties to address two questions: "1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?