Kentucky Judge Turns Gay Marriage Tide in the South

Ruling finds 'Kentucky’s laws treat gay and lesbian persons differently in a way that demeans them'

  • Share
  • Read Later

Correction appended, Feb. 13

On Wednesday, a federal judge with deep ties to the Republican Party became the first in the South to rule in favor of gay marriage, offering the best proof yet that the balance in the nation’s long and contentious clash over how to define marriage has been tipped irrevocably in favor of gay rights.

The brief but remarkable ruling by U.S. District Judge John G. Heyburn, a former lawyer for Kentucky Senator Mitch McConnell who was put on the bench 22 years ago by President George H.W. Bush, invalidates a key part of Kentucky’s ban on gay marriage, and requires the state to recognize as valid same-sex unions sealed elsewhere.

Every state in the South but border state Maryland has on its books laws that limit marriage to one man and one woman, but the legal tide elsewhere has been changing fast since last summer. Heyburn’s ruling is the 10th straight decision in favor of gay marriage by a state or a federal judge since the Supreme Court issued its landmark Windsor ruling by Justice Anthony M. Kennedy, who wrote there could be no valid basis for Congress to prevent states from recognizing gay marriages.

But the ruling by Heyburn, who was special counsel to McConnell in the 1980s and is scion of a powerful family of Louisville lawyers, does more than any of the other decisions since Windsor to eviscerate the legal standing of the constitutional amendments that swept the South, and much of the nation, beginning in 2004. Borrowing heavily from Kennedy’s reasoning in last year’s decision, and in plain language aimed directly at the many voters in Kentucky who still oppose gay marriage, Heyburn found gay marriage laws are illegal for the simplest of reasons. At worst, he ruled, they are aimed at hurting gays and at best, are based on religious convictions that can’t pass constitutional muster.

“Kentucky’s laws treat gay and lesbian persons differently in a way that demeans them,” wrote Heyburn. Since none of the reasons put forward to justify that treatment can withstand constitutional scrutiny, he ruled that the laws are invalid.

The ruling is limited by a technicality. The plaintiffs, four couples, all were married in other states or in Canada. Because of that, the decision leaves in tact Kentucky’s ban on its own gay residents getting married at home. But in plain language, Heyburn’s ruling makes clear that if such a case comes before him, he’ll rule the same way.

Shannon Fauver, the attorney for the one of the couples, told TIME that they had brought a more limited case out of fear that pressing too hard all at once could backfire in the state.

“This is Kentucky, come on, so we decided it would go over better with the conservative courts if we just focused on the out-of-state marriage,” Fauver said. “We thought it’d be easier to win.”

The plaintiffs filed suit exactly 30 days after the Windsor ruling, but neither they nor their lawyers were prepared for how fast momentum shifted in favor of gay marriage as a result of Kennedy’s decision. “None of us could have predicted the tide that has happened over the past couple of months with all the other states allowing same sex,” Dan Canon, another lawyer in the case, said.

The majority of Kentuckians oppose gay marriage and local criticism to the ruling was fierce – something Heyburn anticipated in his ruling.

“Many Kentuckians believe in ‘traditional marriage,’” he wrote. “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..”

He said even deeply held religious values can’t justify laws that deprive others of fundamental rights.

“Our religious beliefs and societal traditions are vital to the fabric of society,” he said. “[But] 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 opinion said.

America, he wrote, was founded by people seeking freedom of religion, but also by those seeking freedom from religion. The Constitution has required a reckoning with that basic tension ever since.

For University of Louisville law professor Sam Marcosson, a gay rights scholar and author of Original Sin: Clarence Thomas and the Failure of the Constitutional Conservatives, the ruling “will undoubtedly be one of the most important decisions in Judge Heyburn’s career.”

“I think he was trying to remind readers that majorities have frequently tried to work their will, often on the basis of moral and religious views, in ways that are deeply harmful to minority groups,” Marcosson says. “They had no evidence of any actual basis for treating those groups as less worthy, for segregating them or discriminating.  It was simply the assertion of power and privilege, and neither that nor the dominant religious view of the majority, are enough when the right to equal protection is asserted.”

What happens next is in large part up to Attorney General Jack Conway, a Democrat and a product of Louisville’s strong Catholic community whose office has mounted a tepid defense of the gay marriage ban. Spokeswoman Allison Martin said Conway wouldn’t discuss whether he will follow the lead of some other attorneys general and decline to defend the gay marriage ban on appeal. As California attorney general and later as its governor, Jerry Brown, declined to defend his state’s constitutional prohibition against gay marriage in federal court. And prior to Windsor, U.S. Attorney General Eric Holder stopped defending the Defense of Marriage Act once lower courts held it to be unconstitutional. More recently, attorneys generals refused to defend gay marriage bans in Pennsylvania, Virginia and Nevada, where the governor this week also refused to defend the law in court.

In a subsequent statement Conway said he had done his duty by defending the law at trial, and would wait until a hearing scheduled by Heyburn before making further decisions.

Marcosson said he expects the decision will withstand an appeal in the Sixth Circuit, though ultimately the case could end up back in the Supreme Court.

For Greg Bourke and Michael DeLeon, the ruling cements what after 32 years together and two children, they already knew: They are a family. But Bourke said the message sent by the decision is powerful for them and for their children Isiah and Bella, who are teenagers in the local Catholic schools.

“That is a big deal for us,” Bourke said. “Our kids already recognize us as a married couple, but it’s important that they know the law does too. … We’ve already got texts from both them today congratulating us. They love and wanted this for us.”

Correction: A previous version of this post misspelled the name of Dan Canon, an attorney in the case.


To cjcota:

You obviously didn't read the article above. The judge made it very clear that you cannot use your CHOSEN religious beliefs to justify discriminating against a group of citizens...

“Our religious beliefs and societal traditions are vital to the fabric of society,” he said. “[But] 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 opinion said.

America, he wrote, was founded by people seeking freedom of religion, but also by those seeking freedom FROM religion.

Secondly, married couples are NOT obligated to repopulate the species when they get married. There are millions of married straight couples that don't have children, and don't ever want to have them. They have the right to make that decision. There are also elderly and infertile couples that are legally married, who are NEVER going to have children. They also have the right to get married.

Marriage is not a "reward". It is a civil right that is given to ALL American citizens, regardless of their sexual orientation.


To Judge Heyburn, I forgot to mention that my nephew just announced that he is homosexual. (:>}) - Chuck


To Judge Heyburn,

Here is another thought. I shared with Eric one of my nephews.  Who is working to propagate the Condors – life.  Well if the Condors were to stop having chicks where would they end up and when?  They can live some forty years, so that would about be it.  If the human race would only have two children for each couple capable of bearing children the human race would come to an end.  Many would never make it to child bearing age so to propagate the race - and God commands us to do, you need to have three or more children per couple to continue. Here is another reason for giving only to heterosexual couples the rights traditionally accorded to marriages is that one of the ever real dangers of giving birth is that the mother can die, or be physically incapacitated.  Something that would not happen to homosexual and lesbian couples. When married couples plan on having a baby, death is the furthest thing from their thoughts.  Just the happiness of a new born baby to a family; but death does occur.  We have one good friend that lost her sister in child birth and another I just learned about from a friend that happened in December last year.  So to reward homosexuals and lesbian with the same rights of couples that can propagate our planet and possibly suffer a loss doing so is contrary to the Bible and just the natural world as well. So the truth must be spoken regardless how it is received.   

            In my letter to my nephew I out lined my beliefs and both perspectives – and we could still talk civilly – 40 minutes worth.  No hate just common sense discussion.

(:>}) – Chuck


@cjcota  What you wrote makes absolutely no sense. Firstly, gay and lesbian couples are not infertile. They're just a lot less likely than straight couples to have a child by accident.  With artificial insemination, surrogacy, or adoption they are just capable as having children as the rest of us. (And did you know that scientists have been creating artificial ovum and sperm cells out of diploid cells for years now. In the future, Timmy could literally have two mommies or two daddies.)

Secondly, whether or not we allow same sex marriage has absolutely NO relationship to whether or not straight couples will marry, how many children they have, or how they will raise their children.

Thirdly, having children has never been a requirement of marriage.  In several states, certain marriages actually require that at least one person in the marriage be infertile.  For example, in several states that allow first cousins to marry, they stipulate that those marriages may only take place if the cousins are over the age of 65 or incapable of producing children.  You can't tell me that marriage is for the creation of children if we are legally requiring some marriages to never produce children.


Get every new post delivered to your Inbox.

Join 2,122 other followers