Judge Rejects Kentucky’s Arguments Against Same-Sex Marriage With So Much Sass

The governor’s arguments in favor of the ban are “at best illogical and even bewildering,” the federal judge writes.

A supporter of same-sex marriage holds American and gay pride flags in San Francisco
National Journal
Sarah Mimms
See more stories about...
Sarah Mimms
July 1, 2014, 9:47 a.m.

A fed­er­al judge ruled Tues­day that Ken­tucky’s ban on same-sex mar­riage vi­ol­ates gay and les­bi­an couples’ equal-pro­tec­tion rights un­der the Four­teenth Amend­ment. U.S. Dis­trict Court Judge John G. Hey­burn II im­me­di­ately is­sued a stay — mean­ing that wed­ding bells in the Bluegrass State won’t be ringing while the state pur­sues an ap­peal — but he did take the op­por­tun­ity to snark about what he termed the state’s “be­wil­der­ing” at­tempts to up­hold the ban.

Demo­crat­ic Gov. Steve Be­s­hear and his at­tor­neys ar­gued — as oth­ers have in sim­il­ar cases across the coun­try — that giv­en the Su­preme Court’s re­fus­al to take up a gay-mar­riage case in 1972 and the fact that same-sex couples can­not pro­cre­ate “nat­ur­ally,” that Ken­tucky should be al­lowed to keep its ban on gay mar­riage. As in many oth­er cases across the coun­try, the court re­jec­ted those ar­gu­ments.

But this is where Be­s­hear and his law­yers get cre­at­ive or, as Hey­burn put it, “disin­genu­ous.” Mar­riage between het­ero­sexu­al couples, they ar­gued, con­trib­utes “to a stable birth rate which, in turn, en­sures the state’s long-term eco­nom­ic sta­bil­ity.”

Hey­burn, to put it mildly, didn’t buy­ing that ar­gu­ment:

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.

… The state’s at­tempts to con­nect the ex­clu­sion of same-sex couples from mar­riage to its in­terest in eco­nom­ic sta­bil­ity and in “en­sur­ing hu­man­ity’s con­tin­ued ex­ist­ence” are at best il­lo­gic­al and even be­wil­der­ing.

Hey­burn went on to ar­gue that un­der that lo­gic, Ken­tucky could leg­ally deny mar­riage li­censes to couples who could not pro­cre­ate, or chose not to.

Cit­ing pri­or case law, Hey­burn con­cluded: “This Court bases its rul­ing primar­ily upon the ut­ter lack of lo­gic­al re­la­tion between the ex­clu­sion of same-sex couples from mar­riages and any con­ceiv­able le­git­im­ate state in­terest. Any re­la­tion­ship between Ken­tucky’s ban on same-sex mar­riage and its in­terest in pro­cre­ation and long-term eco­nom­ic sta­bil­ity ‘is so at­ten­u­ated as to render the dis­tinc­tion ar­bit­rary or ir­ra­tion­al.’”

Hey­burn wrote an earli­er opin­ion in Feb­ru­ary, alert­ing Ken­tucky that it would have to im­me­di­ately re­cog­nize same-sex mar­riages that were per­formed out-of-state. That rul­ing is be­ing ap­pealed as well. The Sixth Dis­trict Court of Ap­peals will hear or­al ar­gu­ments in the Ken­tucky case and cases in oth­er states be­gin­ning Aug. 6.

For more on the cur­rent state of the battle for same-sex mar­riage, check out our map of laws, court cases and le­gis­lat­ive fights across the coun­try.

What We're Following See More »
Trump Won’t Debate Sanders After All
1 days ago

Trump, in a statement: “Based on the fact that the Democratic nominating process is totally rigged and Crooked Hillary Clinton and Deborah Wasserman Schultz will not allow Bernie Sanders to win, and now that I am the presumptive Republican nominee, it seems inappropriate that I would debate the second place finisher. ... I will wait to debate the first place finisher in the Democratic Party, probably Crooked Hillary Clinton, or whoever it may be.”

UAW: Time to Unite Behind Hillary
2 days ago

"It's about time for unity," said UAW President Dennis Williams. "We're endorsing Hillary Clinton. She's gotten 3 million more votes than Bernie, a million more votes than Donald Trump. She's our nominee." He called Sanders "a great friend of the UAW" while saying Trump "does not support the economic security of UAW families." Some 28 percent of UAW members indicated their support for Trump in an internal survey.

Trump Clinches Enough Delegates for the Nomination
2 days ago

"Donald Trump on Thursday reached the number of delegates needed to clinch the Republican nomination for president, completing an unlikely rise that has upended the political landscape and sets the stage for a bitter fall campaign. Trump was put over the top in the Associated Press delegate count by a small number of the party's unbound delegates who told the AP they would support him at the convention."

Trump/Sanders Debate Before California Primary?
2 days ago
California: It’s Not Over Yet
2 days ago

"Clinton and Bernie Sanders "are now devoting additional money to television advertising. A day after Sanders announced a new ad buy of less than $2 million in the state, Clinton announced her own television campaign. Ads featuring actor Morgan Freeman as well as labor leader and civil rights activist Dolores Huerta will air beginning on Fridayin Fresno, Sacramento, and Los Angeles media markets. Some ads will also target Latino voters and Asian American voters. The total value of the buy is about six figures according to the Clinton campaign." Meanwhile, a new poll shows Sanders within the margin of error, trailing Clinton 44%-46%.