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'

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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.