Box Turtle Bulletin

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

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.