Prohibition of Same-Sex Marriage in Kentucky Declared Unconstitutional.

The other shoe has fallen in a pair of court challenges from Louisville seeking to overturn Kentucky’s statute and constitutional amendment that prohibit same sex marriages or the recognition of the same as unconstitutional. The case began as Bourke v. Beshear demanding that Kentucky government and businesses apply law and regulation pertaining to marriage equally to legally married couples regardless of gender-mix. Judge John G. Heyburn, II found no fault with the Plaintiffs’ claim and ruled that Kentucky law’s on recognition of otherwise legal same-sex marriages to be unconstitutional. Kentucky’s Attorney General Jack Conway agreed and declined to appeal Judge Heyburn’s opinion which was ultimately stayed pending appeal and review by higher courts.

Seeking to rip out both vine and root, and ignoring the advice of other advocates who argued that the time was too soon to take on the basic issue of the prohibition of same-sex marriage in Kentucky proper, additional plaintiffs jointed the Bourke case which appropriately is now renamed Love v. Beshear. On July 1, 2014, Judge Heyburn found that Kentucky’s prohibition of in-state same sex marriages is unconstitutional under the equal protection clause. That order was also stayed pending expected review by the Federal Sixth Circuit Court of appeals in Cincinnati this August.

The finding.
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.

Love v. Beshear also appealed.
For reasons much debated and which may never be known, Kentucky Governor Steve Beshear appealed the Bourke decision using private-sector attorneys to argue the case and has indicated that he will appeal the decision in Love as well. I urge him to re-read the Bourke and Love decisions and to change his position. I have a great deal of respect for Governor Beshear, but sadly, and no matter what the motivation or justification, his name will be forever linked with the wrong side of pivotal decisions that will go down in history having struck down the likes of laws declaring black men to be of less value than white men, that women of any color are not fit to vote, that people of different races may not marry, or that the private intimate acts of adults are subject to the scrutiny and veto of a majority. Aside from issues of basic fairness towards other human beings, the arguments being advanced by the Commonwealth would be laughable if they were not being presented as representative of the logic and belief of Kentuckians. Lets face it, the Constitution was broken at birth. It needed– and still needs– fixing. Furthermore, it is not necessary for Kentucky to appeal as the issue will be decided soon regardless. Since the Supreme Court found last year that it was unconstitutional for same-sex couples to be denied the federal benefits to which other married couples are entitled, state laws prohibiting same-sex marriage or its recognition have been uniformly falling like dominoes. This parade of cases will be joined and decided as a group.

Read the ruling yourself.
The ruling is very much worth reading. I predict that Its arguments and language are destined to be reused in other states, future appeals, and perhaps by the Supreme Court. True, most of it is a very technical dissection of whether the claim is legally valid, and if it is being considered in the right place at the right time and in the right manner. Most of the reasoning of the Opinion relates to the appropriate standard of review. States are permitted to treat different groups of citizens differently if there is some “rational basis” for doing so. Apparently that bar is pretty low– some pretty weak justifications have been acceptable in the past. However for issues involving protected groups involving gender, race, disability, and others; any justification for discriminating is held to a higher standard– it can’t be pulled from thin air. Judge Heyburn uses existing precedent to find that as members of a disadvantaged class, the plaintiffs in this case are entitled to a heightened degree of scrutiny. However, having determined that, Judge Heyburn finds that Kentucky’s law is unconstitutional even at the lower “rational basis” standard of proof.

What the Commonwealth argues.
Governor Beshear’s arguments (or the arguments of his lawyers) against same sex marriage hinge on the position that they are justified by “encouraging, promoting, and supporting the formation of relationships that have the natural ability to procreate,” and that “traditional marriages contribute to a stable birth rate which, in turn, ensures the state’s long-term economic stability.”

The language of the order says it all.
Here is what Judge John George Atticus Heyburn, II has to say about the positions of the Commonwealth.

“These arguments are not those of serious people.”

““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. “

“The Court finds no rational relation between the exclusion of same-sex couples from marriage and the Commonwealth’s asserted interest in promoting naturally procreative marriages.”

“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.“

“Numerous courts have repeatedly debunked all other reasons for enacting such laws. The Court can think of no other conceivable legitimate reason for Kentucky’s laws excluding same-sex couples from marriage.”

“To sidestep these obvious deficiencies, Defendant argues that the state is not required to draw perfect lines in its classifications. By this argument, the state can permissibly deny marriage licenses to same-sex couples but not other couples who cannot or choose not to procreate “naturally.”

“…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.”

“In sum, the laws challenged here violate Plaintiffs’ constitutional rights and do not further any conceivable legitimate governmental purpose. Therefore, Kentucky’s laws cannot withstand rational basis review.”

Why such feeble arguments by the great state of Kentucky?
In my opinion, the reason that Governor Beshear’s attorneys had to trot out such obviously lame reasoning is that they were unable to annunciate the real reason these discriminatory laws were written in the first place– their basis in religious dogma. Unfortunately for the leaders of the pack against same-sex marriage, the legislators who pandered to them by writing and campaigning for these laws were not shy about their reasons, quoting chapter and verse in the process. That record will never go away!

Judge Heyburn recognizes that not everyone will be happy with his determination and responds to those with animus against gays and lesbians:   “…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.” Going further, Judge Heyburn points out the very personal ways this unconstitutional discrimination harms individuals and families and makes the important observation that “…invalidating Kentucky’s laws validates the enduring relationships of same-sex couples in the same way that opposite-sex couples’ relationships are validated” and “… “Assuring equal protection for same-sex couples does not diminish the freedom of others to any degree.“  If marriage has any value to “traditional couples,” it has the same value to same-sex couples. Put another way, if marriage is demeaned for any loving spouses, it is debased for all.

What will KentuckyOne do.
When it is determined, as it surely will be, that all marriages are created equal, what steps will KentuckyOne Health take restore the healthcare and other benefits that it took away from employees of University Hospital who were in same-sex marriages or partnerships? Will it continue its practice of what is in my opinion treating its gay and lesbian employees as second class citizens? How will it deal with spouses of gay and lesbian patients who expect to be treated as spouses? Will this overtly religious organization sue in federal court for some sort of exemption? Will University of Louisville Hospital and the University administration that ultimately controls it continue to turn a blind eye to treatment of the hospital’s former employees? In my opinion, the fact that the University of Lousiville stood by and allowed such discrimination to occur in the first place does not lend much optimism. I would argue that it difficult to teach medical professional trainees not to discriminate against their patients when they see what their teachers are willing to tolerate in the name of economic development and commercial research. We will have an opportunity to see these questions answered.

Peter Hasselbacher, MD
President, KHPI
Emeritus Professor of Medicine, UofL
July 7, 2014

Download ruling in Love v. Beshear of 1 July 2014