Earlier this spring, I mentioned that Kentucky made what is one of the most bizarre arguments ever in support of a ban on gay marriage. In February, federal judge John Heyburn ruled that Kentucky had to recognize gay couples who were legally married elsewhere, significantly diluting a 2004 constitutional amendment that declared marriage was between a man and a woman. Kentucky appealed, claiming that since gays can’t have babies, their marriages shouldn’t be considered valid. Well, yesterday Heyburn responded by throwing out the entire amendment, marking the 23rd consecutive ruling in favor of gay marriage since the Defense of Marriage Act was effectively neutered last summer. In the process, he gave Kentucky a severe tongue-lashing for making claims that, as he put it, “are not those of serious people.”
Read the full ruling here. Heyburn, who was appointed by the first Bush, found that Kentucky’s ban on gay marriage violates the federal Constitution’s Equal Protection Clause. Notably, unlike the previous 17 federal rulings in favor of gay marriage since 2013, he didn’t look at the case on due-process grounds, but only on equal-protection grounds. In Heyburn’s view, the only question was whether Kentucky could lawfully treat the plaintiffs — a pair of Louisville-area gay couples — and Kentucky’s other same-sex couples differently from straight couples. In Heyburn’s view, the answer was a resounding no. That answer was relatively easy to arrive at, considering that Kentucky’s sole argument in favor of retaining the ban was that recognizing only traditional marriage would ensure a stable birth rate, and thus ensure economic stability. Heyburn’s response to that claim needs to be reproduced in full in order to do it justice.
“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.”
Heyburn then went on to point out a significant hole in Kentucky’s logic — gay couples can’t marry, but straight couples who either can’t or won’t have babies can marry. That fact, Heyburn said, “reveals the true hypocrisy of the procreation-based argument.”
It’s impossible to understate the kind of language Heyburn is using here. He’s not just saying Kentucky’s argument was wrong, or that he ruled in favor of the plaintiffs. He’s saying that there is no other side to this case, and Kentucky’s argument was complete garbage. If I’m Governor Steve Beshear, who is listed as the defendant in this case, I’d be embarrassed to have my name anywhere on this ruling. I’d also be embarrassed to be the Ashland law firm that wrote this brief; state attorney general Jack Conway believes the ban is unconstitutional, and is not defending the state in this case.
Heyburn stayed his ruling pending action by the Sixth Circuit Court of Appeals, which is considering appeals from Michigan, Ohio, and Tennessee, as well as Kentucky, in a single session on August 6. All deal with whether state bans on gay marriage violate the federal Constitution. Still, the momentum in favor of marriage equality is well beyond the point that anyone can credibly deny it.
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Darrell Lucus is a radical-lefty Jesus-lover who has been blogging for change for a decade. Follow him on Twitter @DarrellLucus or connect with him on Facebook.
Edited by D.H.
