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Kentucky same-sex marriage ban falls in federal court

Written by Bob Henline

In an order filed today, United States District Judge John G. Heyburn issued a ruling overturning Kentucky’s ban on same-sex marriages.  The ruling states, “It is hereby ordered that to the extent Ky. Rev. Stat. 402.005 and .020(1)(d) and Section 233A of the Kentucky Constitution deny same-sex couples the right to marry in Kentucky, they violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, and they are void and unenforceable.”

Judge Heyburn’s ruling differs from the other rulings entered recently in that his decision was based entirely upon the Equal Protection Clause of the Fourteenth Amendment and not the Due Process Clause cited in other rulings on this subject.

Heyburn asserted that “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.”

Heyburn’s ruling, while deliberately avoiding the issue of marriage as a fundamental right, was very explicit in the decision to apply intermediate scrutiny to the case.  The Supreme Court has listed four factors to be used in the determination of a “disadvantaged class” for the purposes of equal protection:

  1. Historical discrimination;
  2. The ability to contribute to society;
  3. Immutable defining characteristics;
  4. Political powerlessness.

Heyburn determined that all four characteristics apply to same-sex couples seeking marriage licenses.  “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.”

As to the other two factors, Heyburn asserted that immutability isn’t dependent upon whether or not a person could change, but 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.”  He also noted that the LGBT community has gained a measure of political influence and success in recent years, but that Kentucky’s laws that prohibit marriage are “Exhibit A” of the political powerlessness of LGBT persons.

The ruling noted that while “homosexual persons constitute a quasi-suspect class” and therefore the state must show that the sexual orientation classification is “substantially related to an important governmental objective,” Kentucky’s laws were unable to withstand constitutional scrutiny under even the most lenient, rational-basis, standard.

Kentucky argued essentially the same justification for their law that was presented by Utah in the Kitchen v. Herbert case, “encouraging, promoting, and supporting the formation of relationships that have the natural ability to procreate.”

Heyburn dismissed this argument:

“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 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 did, however, enter a stay on his order pending further order from the Sixth Circuit Court of Appeals.  The entire ruling can be read here.

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About the author

Bob Henline

Bob Henline is the Assistant Editor of QSalt Lake Magazine, as well as a columnist and social/political activist and amateur chef.

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