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Posts for September, 2015

Judge to clerk’s office: issue licenses or join Davis in jail

Timothy Kincaid

September 3rd, 2015

The circus isn’t over

ABC7

The judge also told all five of the clerk’s deputies, including her son, Nathan Davis, that they are free to issue licenses to all applicants while Davis is held in contempt, but would also face fines or jail if they refuse to comply. He told them to meet with lawyers briefly and consider their fates before returning to his courtroom later Thursday to reveal their decisions.

It appears that five of the six deputies said they are fine with issuing marriage licenses.

UPDATE:

After deputies indicated willingness to issue licenses, Judge Bunning called Davis back to court. She refused, but spoke through her counsel.

She refused to allow her deputies to perform their duties according to their own values and religious beliefs. Only Davis’ religious freedom matters, not that of her deputies.

About that liberal Judge who is persecuting poor Kim Davis

Timothy Kincaid

September 2nd, 2015

(not Harry Potter)

Kim Davis is finding that her personal beliefs make it physically impossible for her to perform the task of issuing marriage licenses. And she’s going to court tomorrow to tell Federal Judge David Bunning so.

What she might not be considering is that Judge Bunning also has strong personal beliefs and has already determined whether an individual can find within themself the ability to do things with which they may not fully agree.

Cininatti.com has a profile on Judge Bunning.

David Bunning is the youngest of nine children of Hall-of-Fame pitcher and former [uber-conservative, anti-gay, GOP] U.S. Sen. Jim Bunning and his wife, Mary Bunning. He grew up in Fort Thomas and was nominated by President George W. Bush for federal judge for the eastern district of Kentucky in 2001. The Senate confirmed the nomination in 2002.

Bunning Sr. was narrowly reelected in 2004 by attaching his campaign to Kentucky’s anti-gay marriage amendment. If any family is vested in opposition to same-sex marriage, it is the Bunning family.

But as for Judge Bunning,

“David is an honest person,” his mother Mary Bunning said. “He doesn’t agree with the Supreme Court but has to obey the law.”

Davis contempt defense: it’s impossible to comply

Timothy Kincaid

September 2nd, 2015

Kim Davis simply cannot comply with the orders of Federal Judge Bunning’s order to do her job. She just isn’t physically able to do so. It’s impossible, you see. (Response in Opposition)

Davis should not be held in contempt because she “is presently unable to comply with the court’s order” enjoining her to authorize SSM licenses bearing her name. See Elec. Workers Pension Trust Fund of Local Union #58 v. Gary’s Elec. Serv. Co., 340 F.3d 373, 379 (6th Cir. 2003) (emphasis in original); see also U.S. v. Rylander, 460 U.S. 752, 757 (1983) (“[w]here compliance is impossible, neither the moving party nor the court has any reason to proceed with the civil contempt action.”); Tate v. Frey, 673 F. Supp. 880, 883 (W.D. Ky. 1987) (“The court’s power to impose coercive civil contempt is limited by an individual’s ability to comply with the court’s coercive order. A party may defend against a contempt by showing that his compliance is factually impossible.”) (internal citation omitted). To prove the impossibility defense to contempt, a person “must show categorically and in detail why he or she is unable to comply with the court’s order.” Elec. Workers, 340 F.3d at 379 (citation omitted).

Impossible? How distressing! But what makes it impossible for Davis to comply with the court’s ruling?

Have all the pens run out of ink? Is there a shortage of documents? Did Kim Davis’ arms fall off?

No. Not that kind of “impossible”.

Davis and her legal team may have a different definition of “impossible” than do you, I, Judge Banning and all other rational people. By “impossible”, Davis means “it irreparably and irreversibly violates her conscience”.

She goes on to list several other reasons why she shouldn’t be held in contempt. I don’t find them very convincing. Maybe that’s because she started with an absurdity.

Why Kim Davis won’t resign

Timothy Kincaid

September 1st, 2015

Rowan County has about 24,000 residents in about 8,300 households. The median income per household (a blend of single-earner and double-earner) is $35,000. The median income for female workers is around $20,000. The average price of houses sold recently in Rowan County is $95,000.

Kim Davis makes almost $80,000.

Davis issues a statement

Timothy Kincaid

September 1st, 2015

Here is Kim Davis’ explanation as to why she is entitled to thwart the issuance of marriage licenses to same-sex couples in Rowan County, Kentucky.

I have worked in the Rowan County Clerk’s office for 27 years as a Deputy Clerk and was honored to be elected as the Clerk in November 2014, and took office in January 2015. I love my job and the people of Rowan County. I have never lived any place other than Rowan County. Some people have said I should resign, but I have done my job well. This year we are on track to generate a surplus for the county of 1.5 million dollars.

In addition to my desire to serve the people of Rowan County, I owe my life to Jesus Christ who loves me and gave His life for me. Following the death of my godly mother-in-law over four years ago, I went to church to fulfill her dying wish. There I heard a message of grace and forgiveness and surrendered my life to Jesus Christ. I am not perfect. No one is. But I am forgiven and I love my Lord and must be obedient to Him and to the Word of God.

I never imagined a day like this would come, where I would be asked to violate a central teaching of Scripture and of Jesus Himself regarding marriage. To issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience. It is not a light issue for me. It is a Heaven or Hell decision. For me it is a decision of obedience. I have no animosity toward anyone and harbor no ill will. To me this has never been a gay or lesbian issue. It is about marriage and God’s Word. It is a matter of religious liberty, which is protected under the First Amendment, the Kentucky Constitution, and in the Kentucky Religious Freedom Restoration Act. Our history is filled with accommodations for people’s religious freedom and conscience. I want to continue to perform my duties, but I also am requesting what our Founders envisioned – that conscience and religious freedom would be protected. That is all I am asking. I never sought to be in this position, and I would much rather not have been placed in this position. I have received death threats from people who do not know me. I harbor nothing against them. I was elected by the people to serve as the County Clerk. I intend to continue to serve the people of Rowan County, but I cannot violate my conscience.

You see, she has the religious liberty to cause the County to deny civil rights to gay couples. That’s all she’s asking. Why are you so unaccomodating?

After all, our Founders intended that civil servants use their own religion to deny services to those of other beliefs. That’s what the Second Amendment is all about: Congress cannot establish religion; that’s the role of County Clerks.

Kim Davis defies rule of law

Timothy Kincaid

September 1st, 2015

Kim DavisIt appears that at some point over the night, the Creator of the Universe took a few minutes for a very special meeting with Kim Davis, the Clerk of Rowan County, Kentucky. And at that meeting God deputized Davis as Deputy Deity and gave her special duties and powers, among which is the right to determine whose marriage is recognized by the state of Kentucky.

Or so Davis seems to believe. Because this morning when two same-sex couples turned up to get their marriage licenses, they were again turned away. (WaPo)

When Davis emerged, she declared that she was not issuing any licenses.

“Under whose authority?” she was asked.

“Under God’s authority,” she said.

Now, I tend to question the faith of those who jump to claim the authority of God. Surely if you believe that an omnipotent deity sees all you do, you’d hesitate a bit before stepping into His shoes and using His authority to push your will on His other children. The consequences of being wrong are so great.

So too are the consequences of defying a federal judge. (NBC)

Couples who have sued the clerk, Kim Davis of Rowan County, quickly asked a federal judge to hold her in contempt. They sought a fine but not jail time.

The contempt request was filed by the American Civil Liberties Union of Kentucky on behalf of couples, both same-sex and opposite-sex, who sued Davis.

“Since Defendant Davis continues to collect compensation from the Commonwealth for duties she fails to perform,” lawyers wrote, “plaintiffs urge the Court to impose financial penalties sufficiently serious and increasingly onerous to compel Davis’ immediate compliance without further delay.”

A hearing on the contempt case is set for Thursday. I think that Davis will discover there that “My God trumps your legal authority” is a position that judges view askance.

And I think that the request for fines and not jail is a smart one. The imagery of Davis being dragged to jail would feed her martyrdom narrative while levying her salary may serve to incentivize her just as well.

Decision point for Kim Davis

Timothy Kincaid

August 31st, 2015

Kim DavisRowan County Clerk Kim Davis is now out of stalling tactics.

Today the US Supreme Court denied Davis’ request for a stay on Judge Bunning’s ruling. Also today, the most liberal interpretation of Bunning’s stay runs out. Tomorrow Davis will have to decide whether to comply with the orders of the Federal judge or whether she will choose to be in contempt of court. (wkyt.com)

Mat Staver, a lawyer representing Davis, told the Associated Press “she’s going to have to think and pray about her decision overnight.”

Davis’ decision is complicated by a growing pressure on her from several sides. A couple who were denied a licence have requested Rowan County Attorney Cecil Watkins to prosecute Davis for official misconduct. Watkins referred the issue to Attorney General Jack Conway. (courier-journal.com)

The Kentucky attorney general is mulling whether to appoint a special prosecutor to investigate whether she violated the state official misconduct statute when her office refused to issue a license to a Rowan County gay couple.

Official misconduct is a misdemeanor punishable by up to 365 days in jail.

A public servant is guilty of it when, “with intent to deprive another person of a benefit,” he or she refrains “from performing a duty imposed upon by law or clearly inherent in the nature” of his office or “violates any statute or lawfully adopted rule or regulation” relating to it.

The couple has also filed a lawsuit against Davis. And it does not appear that she has the support of the Rowan County Government.

Amidst all of this, Davis continues to misstate her intent. She claims that she does not wish to be forced to issue marriage licenses that contravene her religious beliefs.

That is inaccurate. The task is one easily passed to an assistant.

In truth, Davis wishes to prohibit same-sex couples from receiving marriage licenses in Rowan County Kentucky, in effect forcing the citizens of the county to live how she deems appropriate. She is a petty bureaucrat heady on her own limited authority and determined to use her dollop of power to the greatest extent.

Kentucky county clerk toys with contempt

Timothy Kincaid

August 27th, 2015

Kim DavisKim Davis should not be forced to give out marriage certificates to same-sex couples. Davis has a right to her beliefs, religious or otherwise, and a constitutionally protected freedom to live by the dictates of her conscience.

However, governmental entities do not have the right to deny marriage licenses to same-sex couples. The Supreme Court of the United States has determined that to do so is a violation of constitutional protections of equality.

And Kim Davis is the County Clerk in Rowan County, Kentucky. Which might seem to set up a conundrum. Davis cannot be forced to violate her conscience, and yet the County cannot deny equality. Quite the paradox.

But not really. Because Kim Davis does not issue marriage licenses; the Rowan County Clerk issues marriage licenses. The marriage certificates bear the Seal of the State of Kentucky, not the Seal of Kim Davis.

Davis merely performs tasks as the physical representative of the county. Her official actions do not originate in Davis’ will nor are they performed for Davis’ benefit. What Davis believes is irrelevant and when she speaks on behalf of the county, “the relevant speaker is the government entity, not the individual”.

So said the Sixth Circuit Court of Appeals yesterday when denying stay to Davis in her legal challenge to her obligation to perform the duties of the county.

Two weeks ago Federal Judge David Bunning ordered Davis, in her official capacity, to issue a marriage licenses, including to same-sex couples. He had stayed his ruling so that Davis could appeal to the Sixth Circuit. But the Court’s response leaves no ambiguity.

In light of the binding holding of Obergefell, it cannot be defensibly argued that the holder of the Rowan County Clerk’s office, apart from who personally occupies that office, may decline to act in conformity with the United States Constitution as interpreted by a dispositive holding of the United States Supreme Court. There is thus little or no likelihood that the Clerk in her official capacity will prevail on appeal.

Which means that Davis and other employees of Rowan County cannot thwart the County in performing its duties to its residents. The County Clerk must issue marriage licenses to same-sex couples who request them without discrimination.

Yet the Clerk’s Office continues to refuse to do so. (Kentucky.com)

Rowan County Clerk Kim Davis continued to withhold marriage licenses from local residents Thursday, a day after a federal appeals court upheld an order telling her to end her protest.

James Yates and William Smith Jr. were turned away by a deputy clerk in Davis’ office Thursday morning when they asked for a marriage license. The deputy told the men Davis thinks she can legally withhold marriage licenses until Monday, Aug. 31, under an order issued earlier this month by U.S. District Judge David Bunning.

August 31st is the deadline Judge Bunning gave for Davis to appeal to the Sixth Circuit. Obviously the temporary stay given by Bunning expired upon the Sixth Circuit response and this is all but a game. Kim Davis is opening herself up to charges of contempt (though I doubt that happen).

Nevertheless, in a few days time there may be a showdown. Davis will need to decide whether the County Clerk’s Office will fulfill its duties, whether she will defy the orders of the court, or whether she will resign.

I suspect that Davis will continue to obstruct the operations of the county. Davis and her attorney, Mat Staver of Liberty Counsel, are using this situation as a form of public activism against same-sex marriage. Their desire is twofold: to carve away at the rights of gay citizens and to rally public support for their ‘religious freedom’ political endeavors.

But, as is so often true, Liberty Counsel and other anti-gay activists appear to have selected the wrong case to rally around.

Kim Davis is a particularly unsympathetic “victim”, one with whom it is difficult to empathize. She lacks a groomed appearance and her manner appears abrupt and harsh.

But, more importantly, her cause is not one that appeals to anyone other than those who are fiercely opposed to equality for gay people. The great middle population, that to which a thoughtful appeal for religious liberty could be effective, will likely not find “I want to block the county business because of my personal beliefs” to be compelling.

This just sounds to many people like another self-important bureaucrat seeking to interfere in others’ lives. Most people find dealing with governmental entities to be annoying enough without having to worry whether the person responsible for issuing fishing licenses is a vegan or if the county planner is an old hippy that favors quonset huts or if the person issuing business licenses is a teetotaler. Davis’ religious quest to obstruct marriages because of her religion feels like more of the same sort of nonsense.

Personally (though I know many here disagree) I think that there is a valid argument to be made for the religious liberty of individuals to operate their personal business according the their conscience. And that is an argument that can appeal to a broad spectrum, left or right, gay or straight.

But Staver and crew may turn off the public with their defense of the indefensible that they poison the well for any other more legitimate claims.

UPDATE

Staver says that he is going to appeal to the Supreme Court tomorrow for a stay until the case can reach them. I am not anticipating that said stay will be issued.

U.S. Supreme Court to Hear Four Marriage Cases

Jim Burroway

January 16th, 2015

The U.S. Supreme Court has agreed to hear the four marriage cases in which the Sixth Circuit turned back an effort to bring marriage equality or marriage recognition in Kentucky, Michigan, Ohio and Tennessee. According to today’s order: (PDF: 43KB/2 pages) the Court intends to keep the arguments focused on two narrow questions:

The cases are consolidated and the petitions for writs of certiorari are granted limited to the following questions: 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state? A total of ninety minutes is allotted for oral argument on Question 1. A total of one hour is allotted for oral argument on Question 2. The parties are limited to filing briefs on the merits and presenting oral argument on the questions presented in their respective petitions. The briefs of petitioners are to be filed on or before 2 p.m., Friday, February 27, 2015. The briefs of respondents are to be filed on or before 2 p.m., Friday, March 27, 2015. The reply briefs are to be filed on or before 2 p.m., Friday, April 17, 2015.

Lyle Denniston at SCOTUSblog believes that oral arguments may take place in late April with a final ruling “probably in late June.” He adds:

Although the Court said explicitly that it was limiting review to the two basic issues, along the way the Justices may have to consider what constitutional tests they are going to apply to state bans, and what weight to give to policies that states will claim to justify one or the other of the bans.

ACLU To Appeal Sixth Circuit Decision Straight to the U.S. Supreme Court

Jim Burroway

November 6th, 2014

Chase Strangio, staff attorney for the ACLU Lesbian Gay Bisexual and Transgender Project, has announced that they will bypass an en banc review and appeal today’s Sixth Circuit decision directly to the U.S. Supreme Court:

“This decision is an outlier that’s incompatible with the 50 other rulings that uphold fairness for all families, as well as with the Supreme Court’s decision to let marriage equality rulings stand in Indiana, Wisconsin, Utah, Oklahoma, and Virginia. It is shameful and wrong that John Arthur’s death certificate may have to be revised to list him as single and erase his husband’s name as his surviving spouse. We believe it’s wholly unconstitutional to deny same sex couples and their families access to the rights and respect that all other families receive. We will be filing for Supreme Court review right away and hope that through this deeply disappointing ruling we will be able to bring a uniform rule of equality to the entire country.”

Meanwhile, this dissent of today’s decision, written by Sixth Circuit Judge Martha Daughtrey, caught my eye. She denounced the majority’s opinion which refused to recognize the judiciary’s responsibility for guaranteeing the rights of all Americans (PDF: 309KB/64 pages):

Today, my colleagues seem to have fallen prey to the misguided notion that the intent of the framers of the United States Constitution can be effectuated only by cleaving to the legislative will and ignoring and demonizing an independent judiciary. Of course, the framers presciently recognized that two of the three co-equal branches of government were representative in nature and necessarily would be guided by self-interest and the pull of popular opinion. To restrain those natural, human impulses, the framers crafted Article III to ensure that rights, liberties, and duties need not be held hostage by popular whims.

More than 20 years ago, when I took my oath of office to serve as a judge on the United States Court of Appeals for the Sixth Circuit, I solemnly swore to “administer justice without respect to persons,” to “do equal right to the poor and to the rich,” and to “faithfully and impartially discharge and perform all the duties incumbent upon me . . . under the Constitution and laws of the United States.” See 28 U.S.C. § 453. If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams

She also wonders aloud:

These four cases from our sister circuits provide a rich mine of responses to every rationale raised by the defendants in the Sixth Circuit cases as a basis for excluding same-sex couples from contracting valid marriages. Indeed, it would seem unnecessary for this court to do more than cite those cases in affirming the district courts’ decisions in the six cases now before us. 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. Perhaps that is the case, but it does not relieve the dissenting member of the panel from the obligation of a rejoinder.

Sixth Circuit upholds anti-gay marriage bans

Timothy Kincaid

November 6th, 2014

marriage 2014

In a 2-1 decision, the Sixth Circuit Court of Appeals has upheld the state constitutional bans on marriage of the states of Kentucky, Michigan, Ohio, and Tennessee. Writing for the majority, Judge Jeffrey Sutton said:

When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers. Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.

This determination ignores the fact that when animus in present, a minority cannot become the “hero of it’s own stories” as they lack the ability to win in the “customary political processes”. When confronting Goliath on the field of political battle, the only stone in David’s sling is that of judicial protection. Judge Sutton would have David face the giant with no stones at all.

This is, of course, not the end of the story.

It is likely that the plaintiffs will ask for an en banc review and, if they do not prevail in that venue, will appeal to the Supreme Court.

Another Marriage Ban Bites the Dust

Jim Burroway

July 1st, 2014

Kentucky!

A federal judge today ruled that same-sex couples have a right to marry in Kentucky.

“In America, even sincere and long-hold religious beliefs do not trump the constitutional rights of those who happen to have been out-voted,” U.S. District Judge John G. Heyburn II wrote to invalidate Kentucky’s constitutional amendment banning gay marriage.

…Heyburn upheld the right to marry today, but put his ruling on hold pending a decision by a higher court. Heyburn rejected the only justification offered by lawyers for Kentucky Gov. Steve Beshear — that traditional marriages contribute to a stable birth rate and the state’s long-term economic stability.

“These arguments are not those of serious people,” he said.

Judge Heyburn, who was appointed to the bench in 1992 by President George H.W. Bush on Sen. Mitch McConnell’s (R-KY) recommendation, ruled that Kentucky’s ban violates the Equal Protection clause of the U.S. Constitution. Earlier this year, the same judge ruled that the state of Kentucky must recognize the validity of same-sex marriages performed in other states.

The full ruling is here. Judge Heyburn begins by observing the near-unanimity of prior court decisions in the wake of Windsor but explains why, unlike most other Federal judges, he chose not to rule on Due Process grounds:

Since the Supreme Court’s landmark decision in United States v. Windsor, 133 S.Ct. 2675 (2013), every federal court to consider state bans on same-sex marriage and recognition has declared them unconstitutional. Most of these courts have done so under both the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. This Court’s opinion differs in that it does not determine whether Kentucky’s laws interfere with a fundamental right. The Court’s chief reason for declining to do so is its careful reading of Windsor, which suggests that the Supreme Court is unwilling and unlikely to view the right Plaintiffs seek to exercise as fundamental under the Constitution.

He explains that a bit further

Although many courts have discussed the Equal Protection and Due Process Clauses in tandem, ultimately, this Court sees this case as more clearly about the imposition of a classification than about the contours of a due process right. The constitutional question is whether a state can lawfully exclude a certain class of individuals, i.e. homosexual persons, from the status and dignity of marriage. The Court will resolve Plaintiffs’ claims solely on equal protection grounds.

Judge Heyburn acknowledged that “the most difficult part of the equal protection analysis here is determining the proper standard of review.” For heightened scrutiny, which places to burden of proof on the state to show that its action against a suspect class is narrowly tailored to further a legitimate government interest. If the action interferes with a fundemantal right, then gay people qualify as a suspect class, then strict scrutiny applies. But if gay people are simply being singled out for special treatment for other reasons, then they may qualify for quasi-suspect class requiring heghtened scrutiny. While Loving v. Virgina and other court cases identified marriage as a fundamental right, Judge Heyburn found that when the U.S. Supreme Court had the opportunity to extend that fundamental right to gay people in Windsor, it decliend to do so:

If the inquiry here is viewed as a contours-of-the-right question, 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. Further, it is a step that is unnecessary to the ultimate result in this action. Given the current posture of relevant constitutional jurisprudence, this Court finds caution here a more appropriate approach to avoid overreaching in its own constitutional analysis.

He did however rule that gay people constitute a quasi-suspect class, based on four factors identified by the Supreme Court: 1) historical discrimination, 2) ability to contribute to society, 3) immutable defining characteristics, and 4) politiacl powerlessness.

Historical discrimination against homosexual persons is readily apparent and cannot reasonably be disputed. Further, the Court cannot think of any reason why homosexuality would affect a person’s ability to contribute to society. No court has concluded otherwise. The remaining two factors, immutability and political powerlessness, are slightly less straightforward.

As to immutability, the relevant inquiry is not whether a person could, in fact, change a characteristic, but rather whether the characteristic is so integral to a person’s identity that it would be inappropriate to require her to change it to avoid discrimination. Accord Wolf, 2014 WL 2558444, at *28; see also Griego v. Oliver, 2014-NMSC-003, 316 P.3d 865, 884 (N.M. 2013). For example, strictly speaking, a person can change her citizenship, religion, and even gender. Legislative classifications based on these characteristics nevertheless receive heightened scrutiny because, even though they are in a sense subject to choice, no one should be forced to disavow or change them. That is, these characteristics are “an integral part of human freedom” entitled to constitutional protection, as is sexual expression. Lawrence, 539 U.S. at 577. …

Finally, the Court finds that homosexual persons are “politically powerless” within the constitutional meaning of this phrase. In discussing this factor, the Second Circuit noted: “The question is not whether homosexuals have achieved political influence and success over the years; they clearly have. The question is whether they have the strength to politically protect themselves from wrongful discrimination.” Windsor, 699 F.3d at 184. Indeed, if the standard were whether a given minority group had achieved any political successes over the years, virtually no group would qualify as a suspect or quasi-suspect class. A more effective inquiry looks to the vulnerability of a class in the political process due to its size or political or cultural history. See Wolf, 2014 WL 2558444, at *29. Under this inquiry, Kentucky’s laws against homosexual persons are “Exhibit A” of this powerlessness.

With gay people identified as a quasi-suspect class, Judge Heyburn ruled that the state of Kentucky was burdened with proving that its same-sex marriage ban is substantially related to an important governmental objective. And here’s where we get to the really juicy part, because Judge Heyburn then went on to say that Kentucky’s ban on same-sex marriage would not even stand up to any level of scrutiny. “Rational basis review, while deferential, is not ‘toothless,'” Heyburn noted, before tearing into the state’s “illogical and even bewildering” attempts to justify Kentucky’s marriage ban:

The Court will begin with Defendant’s only asserted justification for Kentucky’s laws prohibiting same-sex marriage: “encouraging, promoting, and supporting the formation of relationships that have the natural ability to procreate.” Perhaps recognizing that procreation- based arguments have not succeeded in this Court, see Bourke, 2014 WL 556729, at *8, nor any other court post-Windsor, Defendant adds a disingenuous twist to the argument: traditional marriages contribute to a stable birth rate which, in turn, ensures the state’s long-term economic stability.

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. See Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1252, 1291 (N.D. Okla. 2014) (“Marriage is incentivized for naturally procreative couples to precisely the same extent regardless of whether same-sex couples (or other non- procreative couples) are included.”). The Court finds no rational relation between the exclusion of same-sex couples from marriage and the Commonwealth’s asserted interest in promoting naturally procreative marriages.

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. These arguments fail for the precise reasons that Defendant’s procreation argument fails.

Numerous courts have repeatedly debunked all other reasons for enacting such laws. The Court can think of no other conceivable legitimate reason for Kentucky’s laws excluding same-sex couples from marriage.

The State tried to anticipate one anti-gay argument that courts elsewhere have slapped down by asserting that just because oppposite-sex couples may not be able to procreate or may chose not to, doesn’t mean that it can’t deny marriage licenses to same-sex couples because they can’t procreate. Judge Heyburn agreed that this inconsistency doesn’t automatically fail a rational-basis rule. “However, that Kentucky’s laws do not deny licenses to other non- procreative couples reveals the true hypocrisy of the procreation-based argument,” he countered.

More importantly, the imperfect line-drawing argument assumes incorrectly that the Court bases its ruling on a comparison between same-sex couples and other non-procreative couples. On the contrary, this Court bases its ruling primarily upon the utter lack of logical relation between the exclusion of same-sex couples from marriages and any conceivable legitimate state interest. Any relationship between Kentucky’s ban on same-sex marriage and its interest in procreation and long-term economic stability “is so attenuated as to render the distinction arbitrary or irrational.” City of Cleburne, 473 U.S. at 446.

Judge Heybourn concluded his ruling by noting both reaction to his earlier ruling requiring Kentucky to recognize same-sex marriage performed outside the state and the evolving legal landscape since his earlier decision:

Since this Court’s Bourke opinion, the legal landscape of same-sex marriage rights across the country has evolved considerably, with eight additional federal district courts and one circuit court invalidating state constitutional provisions and statutes that denied same-sex couples the right to marry. …With this opinion, this Court joins their company.

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.

The Court’s holding today is consistent with Bourke, although it requires different relief. The ability to marry in one’s state is arguably much more meaningful, to those on both sides of the debate, than the recognition of a marriage performed in another jurisdiction. But it is for that very reason that the Court is all the more confident in its ruling today.

Final Order on Kentucky’s Recognition of Out-Of-State Marriages Expected Today (UpdateD)

Jim Burroway

February 27th, 2014

The Lexington Herald-Leader reports:

A federal judge said Wednesday afternoon that he would issue a final order within 24 hours requiring Kentucky to immediately recognize same-sex marriages performed outside the state.

…In response, lawyers for the attorney general’s office told U.S. District Judge John G. Heyburn II at a hearing that the state would “very promptly” decide whether to appeal the order.Heyburn told lawyers that his final order will not include a stay postponing it from taking effect. “There could be some confusion” among Kentuckians who quickly seek legal benefits stemming from their same-sex marriages, such as joint tax-filing status, if the state appeals 30 days later and delays the implementation of the order or throws its future into question, Heyburn cautioned.

The named defendants in the lawsuit, Gov. Steve Beshear and Attorney General Jack Conway, are both Democrats. Neither of them mounted a defense of the state’s refusal to recognize same-sex marriages from out of state. Judge Heyburn struck down Kentucky’s prohibition against recognizing out-of-state marriages two weeks ago.

Update: A clarification is in order: “Attorneys for the state did not introduce evidence against same-sex marriage while the suit was being argued, limiting the case to issues of law,” so says the Lexington Herald-Leader. As expected, the order came down today and out-of-state marriages are legal — for now:

However, Gov. Steve Beshear and Attorney General Jack Conway, who defended the same-sex marriage ban in court, have 30 days to appeal. And hours before Heyburn handed down his order, Conway’s office filed a motion asking Heyburn for a “stay,” a 90-day delay in implementing the ruling.

“This will give defendants time to determine if they will appeal the order, and the executive branch time to determine what actions must be taken to implement this court’s order if no appeal is taken,” Clay Barkley, a lawyer for Conway’s office, wrote in Thursday’s motion. “Should defendants elect to appeal from any final order, they reserve the right to seek a stay for the duration of an appeal.”

Heyburn responded to Conway’s request by scheduling a telephone conference call for the lawyers in the case for 2:30 p.m. Friday.

But for at least one day, same-sex marriages performed elsewhere are legal in Kentucky, said Laura Landenwich, an attorney for four same-sex married couples who sued Beshear and Conway last year.

More about ‘liberal’ Judge Heyburn

Timothy Kincaid

February 13th, 2014

Yesterday U.S. District Judge John G. Heyburn II ruled that Kentucky’s ban on recognizing same-sex marriages from other states violates the U.S. Constitution’s Equal Protection clause.

Immediately, the antigay ranting voices started screaming about liberal activist judges.

Family Foundation of Kentucky (Courier-Journal)

Martin Cothran, an analyst for the Family Foundation of Kentucky, said the decision “puts Kentucky voters on notice that if their reasons for defining marriage as between a man and a woman don’t correspond with the political ideology of liberal judges, their votes don’t count.”

National Organization for Marriage

“Today yet another federal judge has entered the competition for lawlessness on the marriage front,” said Brian Brown, NOM President.

Family Research Counsel’s Tony Perkins

This ruling is another example of the deep betrayal of a judicial system infected with activist judges who are legislating from the bench.

So here’s a bit more about ‘lawless liberal activist’ Judge Heyburn from his bio:

From 1976 until his appointment to the bench, Judge Heyburn was associated with the law firm of Brown, Todd & Heyburn, where he was a partner at the firm from 1982 through 1992. His legal practice focused on civil litigation, with an emphasis on problems within the construction industry. Judge Heyburn also served as special counsel to then Jefferson County Judge Executive Mitch McConnell [who went on to be conservative Republican Senator McConnell]. Judge Heyburn was active in civic and political affairs in Kentucky. He was a delegate to the 1984 and 1988 Republican National Convention.

On March 20, 1992, President Bush nominated Judge Heyburn to the United States District Court for the Western District of Kentucky. He was confirmed by the United States Senate in August, 1992. From December, 2001, to December, 2008, Judge Heyburn served as Chief Judge of the Western District of Kentucky.

(hat tip GoodAsYou)

Federal Judge Strikes Down Kentucky’s Prohibition Against Recognizing Marriages from Other States

Jim Burroway

February 12th, 2014

Now it’s Kentucky. U.S. District Judge John G. Heyburn II today has ruled that Kentucky’s ban on recognizing same-sex marriages from other states violates the U.S. Constitution’s Equal Protection clause. Judge Heyburn cited last year’s U.S. Supreme Court ruling in Windsor v. US which struck down a portion of the Defense of Marriage Act for invalidating the portion of Kentucky’s state constitutional amendment excluding same-sex marriage as “valid or recognized as a marriage in Kentucky”.

As in other cases that have rejected the amicus’s arguments, no one in this case has offered factual or rational reasons why Kentucky’s laws are rationally related to any of these purposes. Kentucky does not require proof of procreative ability to have an out-of-state marriage recognized. The exclusion of same-sex couples on procreation grounds makes just as little sense as excluding post-menopausal couples or infertile couples on procreation grounds. After all, Kentucky allows gay and lesbian individuals to adopt children. And no one has offered evidence that same-sex couples would be any less capable of raising children or any less faithful in their marriage vows. Compare this with Plaintiffs, who have not argued against the many merits of “traditional marriage.” They argue only that they should be allowed to enjoy them also.

Other than those discussed above, the Court cannot conceive of any reasons for enacting the laws challenged here. Even if one were to conclude that Kentucky’s laws do not show animus, they cannot withstand traditional rational basis review.

Heyburn, a 1992 George H.W. Bush appointee on the recommendation of Sen. Mitch McConnell, dedicated much of his brief to addressing his ruling in light of Kentucky’s socially conservative norms. “To the extent courts clash with what likely remains that majority opinion here, they risk some of the public’s acceptance,” he wrote. His first concern was the religious one:

Many Kentuckians believe in “traditional marriage.” Many believe what their ministers and scriptures tell them: that a marriage is a sacrament instituted between God and a man and a woman for society’s benefit. They may be confused—even angry—when a decision such as this one seems to call into question that view. These concerns are understandable and deserve an answer.

Our religious beliefs and societal traditions are vital to the fabric of society. Though each faith, minister, and individual can define marriage for themselves, at issue here are laws that act outside that protected sphere. Once the government defines marriage and attaches benefits to that definition, it must do so constitutionally. It cannot impose a traditional or faith-based limitation upon a public right without a sufficient justification for it. Assigning a religious or traditional rationale for a law, does not make it constitutional when that law discriminates against a class of people without other reasons.

The beauty of our Constitution is that it accommodates our individual faith’s definition of marriage while preventing the government from unlawfully treating us differently. This is hardly surprising since it was written by people who came to America to find both freedom of religion and freedom from it.

Heyburn reiterated that his decision does not require Kentucky to allow same-sex couples to marry in the state because “the Court was not presented with the particular question.” He strongly suggested however that “there is no doubt that Windsor and this Court’s analysis suggest a possible result to that question.” He then addressed the concerns expressed that his opinion would somehow affect so-called “traditional” marriages:

Second, allowing same-sex couples the state recognition, benefits, and obligations of marriage does not in any way diminish those enjoyed by opposite-sex married couples. No one has offered any evidence that recognizing same-sex marriages will harm opposite-sex marriages, individually or collectively. One’s belief to the contrary, however sincerely held, cannot alone justify denying a selected group their constitutional rights.

Third, no court can require churches or other religious institutions to marry same-sex couples or any other couple, for that matter. This is part of our constitutional guarantee of freedom of religion. That decision will always be based on religious doctrine.

He also anticipated the argument that his ruling was going against “the vote of the people,” which added the marriage ban to the Kentucky constitution in 2004:

So now, the Constitution, including its equal protection and due process clauses, protects all of us from government action at any level, whether in the form of an act by a high official, a state employee, a legislature, or a vote of the people adopting a constitutional amendment. As Chief Justice John Marshall said, “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. 137, 177 (1803). Initially that decision typically rests with one judge; ultimately, other judges, including the justices of the Supreme Court, have the final say. That is the way of our Constitution.

For many others, this decision could raise basic questions about our Constitution. For instance, are courts creating new rights? Are judges changing the meaning of the Fourteenth Amendment or our Constitution? Why is all this happening so suddenly?

The answer is that the right to equal protection of the laws is not new. History has already shown us that, while the Constitution itself does not change, our understanding of the meaning of its protections and structure evolves.16 If this were not so, many practices that we now abhor would still exist.

Contrary to how it may seem, there is nothing sudden about this result. The body of constitutional jurisprudence that serves as its foundation has evolved gradually over the past forty-seven years. The Supreme Court took its first step on this journey in 1967 when it decided the landmark case Loving v. Virginia, which declared that Virginia’s refusal to marry mixed-race couples violated equal protection. The Court affirmed that even areas such as marriage, traditionally reserved to the states, are subject to constitutional scrutiny and “must respect the constitutional rights of persons.” Windsor, 133 S.Ct. at 2691 (citing Loving).

The lawsuit was brought by four Kentucky couples who were married in Canada, Iowa, California, and Connecticut.

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