A federal judge’s ruling striking down Kentucky’s ban on same-sex marriage undermines voters authority to define marriage as they see fit.
That’s according to Senate Republican Leader Mitch McConnell and anti-gay rights activists with the Family Foundation of Kentucky, who lashed out at a court decision Tuesday against the Kentucky’s gay marriage ban.
In a 19-page opinion, U.S. District Judge John G. Heyburn said the state’s prohibition on allowing same-sex couples the right to wed could not withstand constitutional review.
The decision continues a string of legal victories for marriage equality advocates where federal judges have toppled bans on gay marriage, which is now legal in 19 states and the District of Columbia.
“This just underscores the fact that we have become a nation of judges rather than a nation of laws,” said Kent Ostrander, executive director of the Family Foundation of Kentucky. “It’s no longer ‘we the people, of the people, by the people and for the people.’ It’s all about the judges and their opinions.
“In essence, Judge Heyburn declared martial law on marriage policy in Kentucky.”
Almost a decade ago, voters first took to the polls and overwhelmingly backed a constitutional amendment banning gay marriage.
Since then, the country has shifted dramatically on whether to allow gay and lesbian couples the right to wed.
Legal experts tell WFPL this ruling is one of many that will eventually land in the U.S. Supreme Court’s lap.
Heyburn Ruling ‘Eloquent and Sharp’
In February, Heyburn ruled the state must recognized same-sex marriages performed in other states.
Democratic Gov. Steve Beshear is appealing in both cases, where oral arguments are schedule for Aug. 6.
The governor hired an Ashland, Ky. law firm to defend the law after Attorney General Jack Conway declined to do so.
Beshear’s attorneys laid out an argument that traditional marriage contributes to a stable birth rate and helps Kentucky’s economic viability. Calling the argument “illogical and “bewildering,” Heyburn wrote on Tuesday that the state’s arguments “are not those of serious people.”
“There‘s some sharp language in there,” said Carl Tobias, a University of Richmond law professor. “What’s most compelling is how clear and persuasive is Judge Heyburn’s opinion terms of the law and the facts. He’s writing for history, I think.”
Tobias said he expects when the appeals courts get a hold of gay marriage cases there will be some dissenting opinions. He doubts any of the three-judge panels will uphold state bans, however.
The legal momentum appears to be on the side marriage equality advocates, he believes.
“All of these judges are leaving a legacy in their districts and states,” he said. “And I think it’s important to understand a number of the judges have been Republican appointees, such as Judge Heyburn. So it’s not just a Democratic versus Republican judges, and that also speaks volumes.”
Kentucky Still Solidly Opposes Gay Marriage
When voters took to the polls 10 years ago, a whopping 74 percent sided for the constitutional amendment.
It was a wide coalition of lawmakers, religions organizations, and churches, who said at the time the vote wasn’t meant to discriminate, but about upholding traditional marriage as “God’s law.”
In a released statement, McConnell, who recommended Heyburn to the federal bench, echoed that sentiment. He said Kentuckians still have a right to define the institution for themselves.
“The people of Kentucky voted to enshrine in our constitution that marriage in our state is between one man and one woman,” said McConnell. “I support that position. But regardless of one’s personal view on the issue, we should be able to agree that the people of Kentucky, through the democratic process, should have the authority to determine the meaning of this bedrock institution in our society.”
Heyburn’s ruling bucks those arguments, saying even long-held religious views do not trump the constitutional rights of gay and lesbians. Still, recent polling found 55 percent of Kentuckians still oppose the idea of gay and lesbian couples marrying.
Those in favor of same-sex marriage, such as Democratic Congressman John Yarmuth of Louisville, said same-sex marriage doesn’t motivate voters like it did a decade ago.
“By and large I think this is the type of issue that’s not going to move voters one way or another,” he said. “This is one time the people were so far ahead of the politicians, the politicians were left way in the dust.”