Posted on 07/01/2014 6:35:10 PM PDT by SeekAndFind
This is Noteworthy for three reasons. One: The judge is a Bush 41 appointee, nominated to the federal bench by, er, Mitch McConnell. Two: This decision doesn’t matter much on the ground because the Sixth Circuit, the federal appellate court with jurisdiction in Kentucky, is set to hear arguments on gay marriage on August 6th. They’re going to end up superseding this decision one way or the other in the next few months anyway.
Three: Heyburn, the judge, went out of his way to make clear that he thinks this issue is a no-brainer. Usually when a court examines the constitutionality of SSM, they analyze it as both a due process matter and an equal protection matter. The due process analysis depends on whether the right to marry is “fundamental;” if it is, then the court applies “strict scrutiny” in considering the state’s ban. That mean the state needs to offer a “compelling” reason for why the ban should be upheld. Strict scrutiny is the most skeptical approach a court can take to a statute. Heyburn, though, sidesteps the due process issue altogether by noting that Justice Kennedy, in his hugely influential Windsor opinion, never squarely addresses that issue. If Kennedy hasn’t touched it, Heyburn’s not touching it either. Right off the bat, he’s disarmed himself of one of the judiciary’s favorite weapons in striking down gay-marriage bans.
That leaves the equal protection argument. Courts will apply some form of heightened scrutiny, i.e. extra skepticism, to a law that discriminates against certain historically persecuted groups. Do gays qualify as one of those groups? Sort of, says Heyburn — but it really doesn’t matter, because gay-marriage bans don’t make sense even if you’re analyzing them with no extra skepticism at all. In other words, even if you give the state legislature the maximum amount of deference due under equal protection law, an SSM ban is DOA in court. Here’s Heyburn on the state’s chief argument, that marriage is reserved for straights in the name of encouraging procreation and economic replenishment of the population:
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…
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.
He’s laughing them out of court. And then the big-picture coup de grace:
Those opposed by and large simply believe that the state has the right to adopt a particular religious or traditional view of marriage regardless of how it may affect gay and lesbian persons. But, as this Court has respectfully explained, in America even sincere and long-held religious views do not trump the constitutional rights of those who happen to have been out-voted…
Sometimes, by upholding equal rights for a few, courts necessarily must require others to forebear some prior conduct or restrain some personal instinct. Here, that would not seem to be the case. Assuring equal protection for same-sex couples does not diminish the freedom of others to any degree. Thus, same-sex couples’ right to marry
seems to be a uniquely “free” constitutional right. Hopefully, even those opposed to or uncertain about same-sex marriage will see it that way in the future.
We’ve gone from this issue being a fringe preoccupation of the left 20 years ago to the federal bench slam-dunking it today, thanks in large part to Kennedy and Windsor. As noted, next month the Sixth Circuit will decide the fate of gay marriage in Tennessee, Ohio, Michigan, and Kentucky. All four states have lower-court rulings on legalized gay marriage currently pending. All four ruled in favor of legalized SSM.
Are there any states left?
Russia
Maybe Indonesia.
the mysterious undisclosed 51-57th states,....remain.
If the 6th Circuit follows the 10th and the rest of the Circuits fall into line its very unlikely the SC will ever take the issue up....
Conclusionary nonsense.
It prohibits any proclivity to do so and tells all that to exist within a society that wants to endure, then you have to marry, and I won't use the term "opposite sex" because there is no such thing as "same sex marriage". It's between a man and a woman by definition, and a Free Society has the right to impose such rules.
This isn’t “unexpected” anymore. Why bother reporting it. The Feral “judges” in their black robes all have the hots for homos.
The anti-federalists were right.....Brutus, judge Robert Gates, was correct in saying we were creating a court system more powerful than the world has ever seen. The rot was built into the system.
Ignore the rulings. Federal rulings do not trump state constitutional amendments. WI’s amendment was upheld by the state Supremes. Walker should have told Crabb to go to Hell.
and yet somehow these courts think its unconstitutional to ban gay marriage, but abortion is hunky dory.
Since Windsor I don't believe a single federal judge has upheld a marriage ban when the issue was directly challenged.
Reasonably sure that question was argued and settled at Appomattox Courthouse in Virginia in 1865 by a Mr. Lee and Mr. Grant with the outcome being in favor of the supremacy of the federal government.
This is actually addressed in the US Constitution.
This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.
How is SCOTUS ever going to rule against these judges, since there have been so many? Has this ever occurred on any other issue, where SCOTUS ruled against them?
When the revolution begins, these 'judges' will be among the first disposed of.
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