Federal judge strikes down Kentucky’s ban on gay marriage

posted at 8:01 pm on July 1, 2014 by Allahpundit

Noteworthy for three reasons. One: The judge is a Bush 41 appointee, nominated to the federal bench by, er, Mitch McConnell. Two: This decision doesn’t matter much on the ground because the Sixth Circuit, the federal appellate court with jurisdiction in Kentucky, is set to hear arguments on gay marriage on August 6th. They’re going to end up superseding this decision one way or the other in the next few months anyway.

Three: Heyburn, the judge, went out of his way to make clear that he thinks this issue is a no-brainer. Usually when a court examines the constitutionality of SSM, they analyze it as both a due process matter and an equal protection matter. The due process analysis depends on whether the right to marry is “fundamental;” if it is, then the court applies “strict scrutiny” in considering the state’s ban. That mean the state needs to offer a “compelling” reason for why the ban should be upheld. Strict scrutiny is the most skeptical approach a court can take to a statute. Heyburn, though, sidesteps the due process issue altogether by noting that Justice Kennedy, in his hugely influential Windsor opinion, never squarely addresses that issue. If Kennedy hasn’t touched it, Heyburn’s not touching it either. Right off the bat, he’s disarmed himself of one of the judiciary’s favorite weapons in striking down gay-marriage bans.

That leaves the equal protection argument. Courts will apply some form of heightened scrutiny, i.e. extra skepticism, to a law that discriminates against certain historically persecuted groups. Do gays qualify as one of those groups? Sort of, says Heyburn — but it really doesn’t matter, because gay-marriage bans don’t make sense even if you’re analyzing them with no extra skepticism at all. In other words, even if you give the state legislature the maximum amount of deference due under equal protection law, an SSM ban is DOA in court. Here’s Heyburn on the state’s chief argument, that marriage is reserved for straights in the name of encouraging procreation and economic replenishment of the population:

These arguments are not those of serious people. Though it seems almost unnecessary to explain, here are the reasons why. Even assuming the state has a legitimate interest in promoting procreation, the Court fails to see, and Defendant never explains, how the exclusion of same-sex couples from marriage has any effect whatsoever on procreation among heterosexual spouses. Excluding same-sex couples from marriage does not change the number of heterosexual couples who choose to get married, the number who choose to have children, or the number of children they have…

The state’s attempts to connect the exclusion of same-sex couples from marriage to its interest in economic stability and in “ensuring humanity’s continued existence” are at best illogical and even bewildering.

He’s laughing them out of court. And then the big-picture coup de grace:

Those opposed by and large simply believe that the state has the right to adopt a particular religious or traditional view of marriage regardless of how it may affect gay and lesbian persons. But, as this Court has respectfully explained, in America even sincere and long-held religious views do not trump the constitutional rights of those who happen to have been out-voted

Sometimes, by upholding equal rights for a few, courts necessarily must require others to forebear some prior conduct or restrain some personal instinct. Here, that would not seem to be the case. Assuring equal protection for same-sex couples does not diminish the freedom of others to any degree. Thus, same-sex couples’ right to marry
seems to be a uniquely “free” constitutional right. Hopefully, even those opposed to or uncertain about same-sex marriage will see it that way in the future.

We’ve gone from this issue being a fringe preoccupation of the left 20 years ago to the federal bench slam-dunking it today, thanks in large part to Kennedy and Windsor. As noted, next month the Sixth Circuit will decide the fate of gay marriage in Tennessee, Ohio, Michigan, and Kentucky. All four states have lower-court rulings on legalized gay marriage currently pending. All four ruled in favor of legalized SSM.


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Wow. Straight talk (no pun intended).

And so well said.

I don’t see what the anti-SSM folks have left in their arsenal – side from ‘we jut plain don’t like it’.

verbaluce on July 2, 2014 at 9:53 AM

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Sorry, but there’s no argument there,just a summary dismissive, so the label of ‘straight talk’ doesn’t apply. That leaves lots of actual argument on the pro-’traditional’ marriage side.

Ricard on July 2, 2014 at 10:33 AM
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Indeed it is dismissive…of any merit to the argument.
As in it’s simply false to claim SSM in any way should be denied in order to encourage procreation and it’s ‘economic’ benefit…
hence the judge’s ruling.
Not really sure what point it is you’re trying to make.

verbaluce on July 2, 2014 at 11:27 AM

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Being “dismissive…of any merit to the argument” doesn’t mean the argument has no merit, but merely that the ‘dismisser’ simply wants to avoid addressing it.

The point is that the judge (and any SSM proponent) needs to ignore the basis for marriage, so they have to ‘re-write’ the arguments their opponents are making; only then can they summarily dismiss them.

Ricard on July 2, 2014 at 11:56 AM

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Well stated, Ricard

listens2glenn on July 2, 2014 at 1:41 PM

Maddie on July 2, 2014 at 1:37 PM

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I believe our current “philosophical skirmish(es)” do constitute a “war” on different dimension, but if you don’t it’s ok.

listens2glenn on July 2, 2014 at 1:53 PM

The point being; the “black-robed bench sitters” are not the “final say.”

listens2glenn on July 2, 2014 at 11:36 AM

Yes, yes..we are all familiar with your ‘civil war’ and ‘bloodshed’ line.

Unless you are against the Constitution and are opposed to the basic principles of democracy, those ‘black-robed bench sitters’ do indeed make the call here.

verbaluce on July 2, 2014 at 2:09 PM

Simple. No court has discussed it yet.

Murphy v. Ramsey
, a US Supreme Court case. In Murphy, the Court explicitly upheld the One man, One woman form of marriage as being foundational to the fabric of the commonwealth. The Murphy court upheld removing the right to vote for a group who was challenging one man, one woman. Davis v. Beeson also agreed with that.

So, given that such a deviation from the one man, one woman formula warranted removal of pretty much all rights for the offending party–

Why, exactly, is are homosexual challenges to the one man, one woman suddenly so “right” that it’s illogical to even think of being opposed to it?

Either one man, one woman is foundational; or it’s not.

And if it’s not, then any change to that formula should be acceptable.

Ergo, polygamy, species, consanguinity, and more–all are changes to the basic one man, one woman formula. All should be allowed, if said formula doesn’t stand.

Vanceone on July 2, 2014 at 12:03 PM

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That is also well stated, Vanceone

listens2glenn on July 2, 2014 at 2:29 PM

John the Libertarian

Has apparently NOT read his bible.

Right after Jesus said that he who is without sin should cast the first stone, he then told the whore he saved to “go and sin no more.”

Way to leave off the second part of what Jesus actually did, jackass.

Vancomycin on July 2, 2014 at 2:31 PM

The point being; the “black-robed bench sitters” are not the “final say.”

listens2glenn on July 2, 2014 at 11:36 AM

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Yes, yes..we are all familiar with your ‘civil war’ and ‘bloodshed’ line.

Unless you are against the Constitution and are opposed to the basic principles of democracy, those ‘black-robed bench sitters’ do indeed make the call here.

verbaluce on July 2, 2014 at 2:09 PM

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Like Dred Scott v. Sandford ?
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Hang, yeah … I think that’s a perfectly legitimate parallel/analogy to make.

listens2glenn on July 2, 2014 at 2:34 PM

yay more gay marriage! gay marriage i good for everyone. lets celebrate.

brushingmyhair on July 2, 2014 at 2:43 PM

Upon what meat doth this our Judge feed that he is grown so great?

Mason on July 2, 2014 at 3:12 PM

There’s a lot of comments and I haven’t time to read them all. Did anyone say “people will marry animals soon?”. That’s usually trotted out by someone.

And who cares about polygamy? It should be made legal. A lot of those families care more about religion than the traditional families in the Bible Belt. I know, I grew up there. The divorce rate is very high.

I live in a state that has a large gay population and allows gay marriage. My hetero marriage has survived. We are as close as ever. Our child hasn’t been harmed. Gay marriage only matters if you let it. Raise your kids to live how you expect them to live. They look to you for an example, not the gov’t. Teach them about Christ and to keep him in their hearts. The rest will take care of itself.

I support consenting adults living as they see fit. I also support businesses being able to choose whom they service. That’s the only thing that gives me heartburn about the current wave of legalization. People should have the right of free association.

phadedjaded on July 2, 2014 at 3:20 PM

Gay marriage only matters if you let it…

phadedjaded on July 2, 2014 at 3:20 PM

You mean like bakers, or school curriculum, or keeping your job has a browser CEO…?

Sorry…but as Chai Feldblom has pointed out, state recognition of marriage is about changing the behavior of those who come in contact with the married persons.

Ricard on July 2, 2014 at 3:39 PM

That’s the only thing that gives me heartburn about the current wave of legalization. People should have the right of free association.

Good luck with that.

You’re not going to be permitted to live and let live. You–and your children–are going to have to celebrate all the colours of the LGBT rainbow, whether you like it or not.

This isn’t about equality or freedom–it’s about bedrock social reconstruction, and the eradication of certain patterns of thought and behavior. You’ll figure it out, soon enough.

DRPrice on July 2, 2014 at 4:03 PM

There’s a lot of comments and I haven’t time to read them all. Did anyone say “people will marry animals soon?”. That’s usually trotted out by someone.

phadedjaded on July 2, 2014 at 3:20 PM

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Yes … they did.

ajacksonian on July 1, 2014 at 8:17 PM
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And who cares about polygamy? It should be made legal. A lot of those families care more about religion than the traditional families in the Bible Belt. I know, I grew up there. The divorce rate is very high.

phadedjaded on July 2, 2014 at 3:20 PM

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Great link about a SCOTUS ruling on that issue, from looong ago.
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I live in a state that has a large gay population and allows gay marriage. My hetero marriage has survived. We are as close as ever. Our child hasn’t been harmed. Gay marriage only matters if you let it. Raise your kids to live how you expect them to live. They look to you for an example, not the gov’t. Teach them about Christ and to keep him in their hearts. The rest will take care of itself.

phadedjaded on July 2, 2014 at 3:20 PM

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I can’t agree with you on that phadedjaded.

Even if you’re a “pure as the wind driven snow” Christian believer (none of us are, but for the sake of debate…) living in today’s version of Sodom or Gomorrah (San Francisco?), you can’t help being negatively impacted by it.

Any society that “caves-in” to allowing homosexuality to be openly accepted, as a valid, legitimate, alternate state of “normal”, is DOOMED.
I see it as an indictment of American Christian believers (oh crap ! … includes me) that this issue is even being contemplated.
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I support consenting adults living as they see fit. I also support businesses being able to choose whom they service. That’s the only thing that gives me heartburn about the current wave of legalization. People should have the right of free association.

phadedjaded on July 2, 2014 at 3:20 PM

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It appears we agree on that, so I guess all is not lost.

listens2glenn on July 2, 2014 at 4:08 PM

For strict scrutiny to apply, you have to consider the homosexual relationship a “marriage”, i.e. like a “one man, one woman” relation already recognized under law.

Again, govt. doesn’t create marriage – they license it as “legit” for benefits. That doesn’t mean your marriage doesn’t exist in reality. Govt. often forgets this, and tries to eliminate common law marriages, to in turn appoint themselves the decider of marriage status, the creator of marriage. They aren’t – they only “recognize” it.

So who defines “marriage” – the individual, the couple, the state, the church, the society? And that definition is only for “legal recognition” by the state, so, the homosexuals are seeking “SOCIETAL” recognition via the law. But they aren’t seeking a voter referendum, or a law via legislature elected to represent society – they are seeking the edict from a federal judge.

So, the judge is “taking the homosexuals word for it”, meaning, defaulting to THEIR subjective definition of marriage and agreeing with it, and deciding, on his own, that their subjective relationship is EQUAL to legally recognized marriage. But he ain’t asking “society” or the state legislature, is he? He’s TELLING them what they will accept. This is an end-around social recognition by forcing it via a judge. It assumes up-front that the relation is a marriage as legally defined and in the process, it takes away society’s say in RECOGNIZING the “marriage”, which is really the issue – the gays have a right to “marry” already that they don’t use since it is based on opposite sexes – they don’t have a right to societal recognition of a NEW form of marriage. For that to apply, they have to fit the law as written, meaning, seek society’s approval.

If you don’t want society’s approval, that’s fine, live as husband and husband, call yourself married, wear rings, etc. and who cares what the state or others think. Over time, attitudes will change naturally, as opposed to being forced to change.

So the effect of the Judge’s holier than thou and un-contemplated ruling is that marriage is really subjective, i.e. up to the individual asking for the license.

Equal protection misses this point – besides, the marriage law applies the same to straights as gays – one man, one woman. If gays get a new right, a new form of marriage, I get that right too. That’s the difference between “same sex” marriage and “gay” marriage – they aren’t the same thing.

So if I decide I’m married to my brother, then the state must recognize that “marriage” because I say it’s one, too. If not, they must rely on state definitions of marriage (which, unless the state legislature of voter referendum says otherwise, are between one man and one woman) or church/religion to exclude us/me. But they didn’t with the two gays, so why not with to incest partners, or multiple partners, etc.? You can’t say its an individual right and then say govt. defines what that right is case by case, how it will take shape – the INDIVIDUAL does. And thus, marriage becomes subjective, up to the individual. So why have society recognize it at all, why “benefit” it at all?

If everyone can call themselves “doctor”, then the title means nothing socially.

Saltyron on July 2, 2014 at 5:06 PM

An awful lot of conservatives get divorced…
spinach.chin on July 1, 2014 at 11:09 PM

And a lot of conservatives get drunk, speed, lose their tempers, etc. For all have sinned and fallen short of the glory of God. So what?

Nutstuyu on July 2, 2014 at 5:50 PM

Vancomycin on July 2, 2014 at 2:31 PM

The idiot also doesn’t know the difference between libertarian and LIBERTINE.

Nutstuyu on July 2, 2014 at 5:53 PM

I live in a state that has a large gay population and allows gay marriage. My hetero marriage has survived. We are as close as ever. Our child hasn’t been harmed. Gay marriage only matters if you let it. Raise your kids to live how you expect them to live. They look to you for an example, not the gov’t. Teach them about Christ and to keep him in their hearts. The rest will take care of itself.
phadedjaded on July 2, 2014 at 3:20 PM

I’m sure Lot felt the same way and look where that got him.

Nutstuyu on July 2, 2014 at 5:56 PM

phadedjaded on July 2, 2014 at 3:20 PM

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I’m sure Lot felt the same way and look where that got him.

Nutstuyu on July 2, 2014 at 5:56 PM

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Why he didn’t leave that place on his own, much sooner than those angels dragged him out of there, has always left me puzzled.

listens2glenn on July 2, 2014 at 7:55 PM

Again, govt. doesn’t create marriage – they license it as “legit” for benefits. That doesn’t mean your marriage doesn’t exist in reality. Govt. often forgets this, and tries to eliminate common law marriages, to in turn appoint themselves the decider of marriage status, the creator of marriage. They aren’t – they only “recognize” it.

Saltyron on July 2, 2014 at 5:06 PM

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Y E S ! ! !

listens2glenn on July 2, 2014 at 10:14 PM

Well stated, Ricard

listens2glenn on July 2, 2014 at 1:41 PM

Arigato.

Ricard on July 2, 2014 at 10:38 PM

I just want them to go one step further and explain why the government has any reason to bar anyone from marrying the consenting adult of their choice.

Jamie and Cersi Lanister can make horrible inbred children, but what if they were twin boys? There’s no issue of the negatives regarding inbred children there. And what about cases of men in relationships with their post-menopausal mothers/grandmothers? Again, no concern about deformed children, a problem which is actually just as pronounced with procreating women in their mid to late 40s, which is still legal, even though incest, even without procreation, can land you in jail.

If it’s so laughable to deny someone a federally sanctioned marriage because it’s “icky” or whatever they’re laughing about, then why is the focus solely on homosexuals? If they’re honest, it’s only because it’s become socially acceptable, i.e., the very thing they’re laughing about in the first place. This is like saying blacks are created equally just like all human beings and thus should not be enslaved but still maintaining that they shouldn’t have the right to own property or vote.

There’s nothing principled about this condescension.

Esthier on July 2, 2014 at 10:52 PM

divorce, fornication, and adultery should be made illegal

Pragmatic on July 3, 2014 at 6:00 AM

Pragmatic on July 3, 2014 at 6:00 AM

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I’m unable to discern whether your comment is sarcastic or genuine (some of both?), but my reply is good for either case . . . . .
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We don’t need “laws” against these acts, as much as we need public recognition of God.

There has been “divorce, fornication, and adultery” since the fall of man.
But where ever the “recognition of God” is allowed in the open public (like it used to be here), all unlawful acts (not just “sex related”) are greatly reduced.

Public recognition of God doesn’t make a society perfect … but it does make it much better.

listens2glenn on July 3, 2014 at 8:58 AM

It’s Heyburn’s deranged comments that “are are not those of serious people.” The very idea that this fruitcake pretending to be a judge can imagine that he & we,
demonstrably grossly far more uneducated & stupid compared to previous generations, mostly due to our Biblical illiteracy that our Founders promised would be certain national suicide, as it’s proving to be,
could possibly overthrow six millennia of civilization and not have it be our and his sure doom & disaster! The very word root “homosex- (homo=same+sex=opposite) is an oxymoron and today’s useful idiots have been brainwashed into pretending it’s rational to use it. See “The gay invention” at http://www.touchstonemag.com for why it’s first a linguistic error before anything else, entirely appropriate for our illiterate age where the once exemplary NYT is now a laughingstock no intelligent grade school teacher would fail to fail for its idiotic linguistic incompetence. Again, as our Founders warned and promised, without Biblical literacy, glaringly obvious today, our doom of death as a nation is sure, as it’s proving to be.

russedav on July 3, 2014 at 9:55 AM

Last call for this thread . . . . . . . . . . . . . . . . . . . . . . . . . . . .

listens2glenn on July 4, 2014 at 6:42 PM

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