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Popular Topics in Literature
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Topics In the News
Federal Court Rulings in Kentucky and Virginia Highlight Pathway to Equality
Posted by: Claude J. Summers on 02/14/14
Last updated on: 07/01/14
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Mary Townley (left) and Carol Schall (with daughter Emily), plaintiffs in Bostic v. Rainey.

Recent court rulings in Kentucky and Virginia make clear the pathway to equality. In some ways the rulings, one by a George H.W. Bush appointee, the other by a Barack Obama appointee, are quite different, but they both lead to the same destination and they are both built on the landmark Supreme Court rulings in Romer, Lawrence, and Windsor, all three written by Justice Anthony Kennedy.

On February 12, 2014, U.S. District Judge John Heyburn struck down part of Kentucky's marriage amendment that bans same-sex marriage, ruling that the state must recognize valid same-sex marriages performed in other states. The 23-page ruling hints that Kentucky will itself soon be ordered to perform same-sex marriages; but in a case brought by four same-sex couples who were married in other jurisdictions that issue was not before the Court. Hence, Judge Heyburn restricted his analysis to the question of whether Kentucky must recognize marriages performed in other jurisdictions.

As many other judges have done, Judge Heyburn found that a ban on same-sex marriage adopted via both statute and referendum treats gay and lesbian couples "in a way that demeans them." Similarly, he rejected the defense that the law was adopted to protect traditional marriage and to encourage responsible procreation and optimal conditions for rearing children.

The most interesting aspects of Judge Heyburn's decision are its close adherence to Justice Kennedy's majority opinion in Windsor and his calm explanation as to why his decision is compelled by the Constitution and by the judicial evolution in the treatment of gay people generally and same-sex marriage in particular.

The controlling effect of the Windsor decision is apparent in one extended passage where Judge Heyburn literally substitutes "our particular circumstances within Justice Kennedy's own words [from Windsor]" as when he writes "[Kentucky's laws'] principal effect is to identify a subset of state-sanctioned marriages and make them unequal."

Painfully aware that his decision is likely to be unpopular in Kentucky, especially among religious conservatives, Judge Heyburn writes, "Many Kentuckians believe in 'traditional marriage.' 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. These concerns are understandable and deserve an answer."

Clearly and succinctly, he provides that answer: "Our religious beliefs and societal traditions are vital to the fabric of society. Though each faith, minister, and individual can define marriage for themselves, at issue here are laws that act outside that protected sphere. Once the government defines marriage and attaches benefits to that definition, it must do so constitutionally. It cannot impose a traditional or faith-based limitation upon a public right without a sufficient justification for it. 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 beauty of our Constitution," Judge Heyburn asserts, "is that it accommodates our individual faith's definition of marriage while preventing the government from unlawfully treating us differently. This is hardly surprising since it was written by people who came to America to find both freedom of religion and freedom from it."

Judge Heyburn also explains that his decision is the natural result of a judicial evolution that began in 1967 with Loving v. Virginia, which declared bans on interracial marriage unconstitutional; continued with Romer v. Evans in 1996, which prohibited enactment of laws based on animus rather than legitimate governmental interest; found elaboration in Lawrence v. Texas in 2003, which not only invalidated sodomy laws but also acknowledged the dignity of homosexual relationships; and found forceful expression in Windsor in 2013. He predicts that the question of same-sex marriage will likely be resolved in the near future by a Supreme Court ruling explicitly recognizing the fundamental right of gay people to marry.

Judge Heyburn's decision in Bourke v. Beshear may be read here.

If Judge Heyburn's decision is somewhat defensive and apologetic in explaining how the Constitution compels equal rights under the law for gay and lesbian couples, Judge Arenda L. Wright Allen, who was appointed to the bench by President Obama, is almost celebratory in her eloquent decision declaring Virginia's ban on same-sex marriage unconstitutional.

Her 41-page decision begins with a moving quotation from Mildred Loving, one of the plaintiffs in Loving v. Virginia, and concludes with a quotation from Abraham Lincoln. It is, in effect, a Valentine card for those who believe in equal rights and in individual freedom.

Judge Wright Allen ringingly declares that Virginia's statute and constitutional amendment violate the 14th Amendment's guarantee of equal protection. "Government interests in perpetuating traditions, shielding state matters from federal interference, and favoring one model of parenting over others must yield to this country's cherished protections that ensure the exercise of the private choices of the individual citizen regarding love and family," she asserts.

Insofar as Judge Wright Allen is conscious of a possible backlash against her ruling from conservatives, it is perhaps evident in that she places the quest for marriage equality in the context of America's long journey toward making and keeping our citizens free, especially from the tentacles of big government encroaching on individual rights. For example, she finds that "Gay and lesbian individuals share the same capacity as heterosexual individuals to form, preserve and celebrate loving, intimate and lasting relationships. Such relationships are created through the exercise of sacred, personal choices--choices, like the choices made by every other citizens, that must be free from unwarranted government interference."

Declaring that "The right to marry is inseparable from our rights to privacy and intimate association," she rejects all the arguments put forward by the defenders of Virginia's law, including "The proponents' insistence that plaintiffs have embarked upon a quest to create and exercise a new (and some suggest threatening) right."

Judge Wright Allen explains, "The reality that marriage rights in states across the country have begun to be extended to more individuals fails to transform such a fundamental right into some 'new' creation."

She adds, "Plaintiffs ask for nothing more than to exercise a right enjoyed by the vast majority of Virginia's adult citizens. They seek 'simply the same right that is currently enjoyed by heterosexual individuals: the right to make a public commitment to form an exclusive relationship and create a family with a partner with whom the person shares an intimate and sustaining emotional bond.'"

"This right is deeply rooted in the nation's history and implicit in the concept of ordered liberty because it protects an individual's ability to make deeply personal choices about love and family free from government interference."

Judge Wright Allen's decision in Bostic v. Rainey may be found here.

Judge Wright Allen has stayed her ruling pending an appeal to the Fourth Circuit Court of Appeals.

The plaintiffs in the Bostic case are represented by Theodore Olson and David Boies, the acclaimed attorneys who succeeded in invalidating California's Proposition 8.

Judge Hepburn will hold a hearing soon to discuss remedy for the four couples who filed the Bourque case. It is not clear whether Kentucky will appeal the decision to the Sixth Circuit Court of Appeals.

The videos below, from the American Foundation of Equal Rights, introduce the plaintiffs in the Bostic case.

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