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Movement toward same-sex marriage (SSM) in Kentucky.

Part 5: 2014-FEB:
Current status of the Bourke v. Beshear case.
More reactions to the District Court's ruling.

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This topic is continued from the previous essay

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2014-FEB-28: Bourke v. Beshear: Ruling stayed for 21 days:

John Conway, the Attorney General of Kentucky, had asked for a 90 day stay in the ruling that U.S. District Court Judge John G. Heyburn II had just issued on FEB-27. The next day, Judge Heyburn ordered a 21 day stay. Same-sex couples who have been married out-of-state will have to wait until at least MAR-21 to seek state recognition of their marriages. The stay will allow the Attorney General to decide whether to appeal the case to the U.S. Court of Appeals for the Sixth Circuit. If he does appeal the ruling, then the Court of Appeals would probably extend the stay until the Court issues its own ruling. 1 If he decides to not appeal the case, then the 21 days will allow the state to issue instructions to the County Clerks on how to implement Judge Heyburn's order to recognize out-of-state marriages by same-sex couples.

included the following comment:

"The public interest is twofold: that the Constitution be upheld; and that changes in the law be implemented consistently without undue confusion. Confusion could result from state or local officials being unaware of their precise responsibilities. However, the implementation of the order without confusion is possible with reasonable effort." 1

Laura Landenwich, an attorney for the plaintiffs said that the 90 day stay requested by Conway was excessive. She noted that it would have extended the stay past the income tax filing deadline. That would make it impossible for same-sex spouses to file joint returns for the taxation year 2013. She said:

"This should not be that difficult of an order to implement. From our perspective, the Commonwealth treats married couples a certain way, with certain rights. So now we'll just be treating everyone that way." 2

Martin Cothran, a spokesperson at The Family Foundation of Kentucky -- the main group opposing marriage equality in Kentucky -- was critical of the Attorney General. Cothran wanted the Attorney General to immediately appeal the case to the Court of Appeals and to obtain a stay from that court until it handed down its ruling, perhaps in late 2014. Cothran said:

"The Attorney General needs to fish or cut bait. And he needs to act now to protect the rights of Kentucky voters. Unelected federal judges like the judge in this case are taking important social issues out of the hands of voters and forcing citizens to be spectators in their own democracy." 1

Because of the two couples who recently joined this case seeking to require Kentucky to marry same-sex couples in-state, Judge Heyburn ordered that the case be renamed Love vs. Beshear. That name triggers memories of a 1967 U.S. Supreme Court ruling called "Loving v. Virginia" which legalized interracial marriage across the U.S.

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More reactions to the District Court decision:

  • The Rev. Albert Mohler, president of the Southern Baptist Theology Seminary said:

    "Christians who affirm the biblical understanding of marriage as the union of a man and woman must now recognize that we can no longer count upon the government and its laws to reflect that understanding. Even the proponents of same-sex marriage must surely recognize the radical legal and moral shift in Western civilization and human history this change implies. Christians understand that marriage is one of God’s greatest gifts to humanity and that marriage, as defined by the Creator, is fundamental to human flourishing.

    We now know that the government cannot be counted on to affirm this message. As a matter of fact, we have to face the reality that the government — even in the Commonwealth of Kentucky — may teach a radically different message through its laws. But the real question for Christians is not whether the government gets the question of marriage right, but if we do. In the grand scheme of things, that is the Church’s real challenge." 3

Mohler overlooks the fact that there are multiple "biblical understandings of marriage." Liberal/progressive Christians generally view marriage as the union of two persons, whether they be of different or same genders. Some mainline denominations are in conflict, with liberals and conservatives within the denomination take opposing views.

  • Human Rights Campaign President Chad Griffin issued a statement about SSM developments in Kentucky:

    "Today, this nation took another bold step toward its fundamental constitutional principles of equal justice under the law. This [state constitutional] amendment is unconstitutional, and we believe the only true solution to the injustice faced by these plaintiffs is full marriage equality. We hope all parties act swiftly and fairly to allow all loving and committed Kentucky couples the opportunity to marry in the state they call home.

    This new marriage ruling is not final and is likely to be appealed, joining other federal court cases in Utah, Nevada, Ohio and Oklahoma—all of which are currently at the appellate level...." 4

  • The National Organization for Marriage's main function is to prevent same-sex couples from marrying everywhere in the U.S. Its President, Brian Brown, said:

    "Today yet another federal judge has entered the competition for lawlessness on the marriage front,... Today's decision emphasizes the need for Congressional action to prevent our states' marriage laws from spiraling further into chaos. Congress needs to explicitly reinforce the sovereign right of the states to make their own determinations regarding marriage, and to have those determinations respected by the federal government -- which would include having those determinations protected from coerced modification through dubious readings of the 14th amendment such as we have here." 5

  • Michael Aldridge, Executive Director of American Civil Liberties Union of Kentucky wrote:

    "The ACLU of Kentucky applauds today’s ruling.  Just as the U.S. Supreme Court found this summer in their decision on the [federal] Defense of Marriage Act, denying legally married same-sex couples equal recognition and protection under the law is not only unfair, but it is unconstitutional. The ACLU of Kentucky asks the State to let the ruling stand rather than appealing the decision, as has been done in several other states, most recently in Pennsylvania, Illinois, New Mexico and Virginia. If the decision is appealed, the ACLU of Kentucky will file an amicus brief in support of marriage equality."6

  • Tony Perkins, President of the Family Research Council wrote:

    "It may be National Marriage Week, but the federal bench has a funny way of celebrating it. In courtrooms from Kentucky to Nevada, democracy is taking a beating from activist judges anxious to put their stamp on the march toward same-sex 'marriage.' Bluegrass voters were the latest ones caught in the undertow, as a surge of amendment challenges sweep through Middle America. This time, it was a Republican appointee doing the honors -- U.S. District Judge John Heyburn, who ruled that representative government is a distant second to a radical political agenda that 75% of the state had already rejected.

    His opinion, a 23-page activists' masterpiece, insisted that Kentucky's marriage amendment "demeans" homosexuals and shouldn't be used to deny couples benefits if they wed in other states. While Heyburn admitted that he was rewriting the law, he insisted he was justified in doing so because 'history has already shown us that, while the Constitution itself does not change, our understanding of the meaning of its protections and structure evolves.' In an especially patronizing portion of the ruling, Heyburn claims, '[T]his court's role is not to impose its own political or policy judgments on the Commonwealth or its people' -- yet that's exactly what his opinion does by ignoring the people's will!

    The decision absolutely blindsided voters, who, as recently as last week, told pollsters that they still opposed same-sex "marriage" by a 20-point margin (55% to 35%). Making matters worse, Kentuckians feel particularly jilted by Senate Minority Leader Mitch McConnell (R-KY), who lobbied for Heyburn's appointment during George H.W. Bush's presidency. Yesterday, McConnell blasted the damage done by his protégé, insisting that 'only the people of Kentucky, through the legislative process, should have the authority to change the law-not the courts.' Unfortunately for voters, McConnell's outrage -- however sincere it may be -- cannot undo the devastation done to the state's marriage law by a judge he helped promote." 7

McConnell was expressing a point of view that is widely held among Republicans and religious conservatives: that the United States is a pure Democracy in which the wishes of the public in a plebiscite always rule. This is often called the "Tyranny of the majority," and was a major concern of the founders of the U.S. The vast majority of constitutional experts believe that the United States is a Constitutional Democracy in which the federal Constitution is the supreme law of the land. More details. Thus, if the voters approve an amendment to a state constitution that violates the federal Constitution, that amendment is unconstitutional. Numerous federal and state courts have determined that such amendments are definitely unconstitutional.

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This topic continues in the next essay.

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References used:

The following information source was used to prepare and update the above essay. The hyperlink is not necessarily still active today.

  1. Brett Barrouquere, "Judge grants Ky. 21-days to implement order recognizing same-sex marriages," LGBTQNATION, 2014-FEB-28, at: http://www.lgbtqnation.com/
  2. John Cheves, "Judge puts 21-day hold on ruling requiring Kentucky to recognize same-sex marriages," Lexington Herald-Leader, 2014-FEB-28, at: http://www.kentucky.com/
  3. Albert Mohler, "The Other Shoe Drops in Kentucky: Federal Court Legalizes Same-Sex Marriage in the Commonwealth," AlbertMohler.com, 2014-FEB-12, at: http://www.albertmohler.com/
  4. "Kentucky Ruling is the Latest Sign of Growing Marriage Equality Momentum," Human Rights Campaign, 2014-FEB-12, at: http://www.hrc.org/
  5. Brian Brown, "National Organization for Marriage Condemns the Decision by a Federal Court to Strike Down a Component of Kentucky's Laws Regulating Marriage," National Organization for Marriage, 2014-FEB-12, at: http://www.nomblog.com/
  6. "Kentucky Judge Rules Same-Sex Marriage Ban Unconstitutional," ACLU-Kentucky, 2014-FEB-12, at: https://www.aclu.org/
  7. Tony Perkins, "Kentucky Fried Constitution," Family Research Council, 2014-FEB-13, at: http://www.frc.org/

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Copyright © 2014 by Ontario Consultants on Religious Tolerance.
First posted: 2014-FEB-28
Latest update: 2014-MAR-17
Author: B.A. Robinson
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