This is some good news that I mentioned last week, but couldn't discuss properly because the court decision involved had come down just a couple of hours before I recorded the show.
On February 12, US District Judge John Heyburn ruled that the state of Kentucky must recognize same-sex marriages performed in other states and countries where such marriages are legal, finding that the state's ban on doing so treats "gay and lesbian persons differently in a way that demeans them." That is, if you are a same-sex couple that got married in, say, New York and you move to Kentucky, you are still married in Kentucky.
Heyburn said that government may define marriage and may attach benefits to it, but it can't "impose a traditional or faith-based limitation" without a sufficient justification for it. Quoting the ruling:
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 decision is relatively narrow, as it applies only to recognizing same-sex marriages performed in places where they are recognized, but that was the issue before the court. So it doesn't mean that same-sex couples can get married in Kentucky.
But in plain language, Heyburn’s ruling made it clear that if such a case comes before him, he’ll rule the same way: He will rule in favor of marriage justice and against discrimination.
Heyburn’s ruling is the 10th straight decision in favor of same-sex marriage by a state or a federal judge since the Supreme Court issued its landmark Windsor ruling, which struck down parts of the Defense of Marriage Act and said that there could be no valid basis for Congress to prevent states from recognizing same-sex marriages.
Kentucky Attorney General Jack Conway, whose office mounted a tepid defense of the law Heyburn shot down, hasn't said whether or not he will appeal. If he doesn't, he will join the AGs in Virginia, Pennsylvania, California, Illinois, Nevada, and most recently Oregon in declining to defend such a ban in their states.
Speaking of Virginia, it was just a day after Heyburn's ruling, February 13, when US District Judge Arenda Wright Allen ruled Virginia's ban on same-sex marriage unconstitutional because it violates Constitutional rights to due process and equal protection guaranteed under the Fourteenth Amendment.
The constitutional right to equality should apply to all, she said in her ruling, including same-sex couples seeking marriage licenses.
This came not long after state Attorney General Mark Herring announced that he had determined in his professional judgment that the ban was unconstitutional and he would not defend it in court.
Allen's decision is in line with similar rulings in recent weeks from federal judges in Oklahoma and Utah. The effects of all three of these cases are on hold pending appeal, so the decisions are not final. But it's also true that the AGs in those states could decide not to throw good public money after bad and drop the matter. We'll have to see.
In any event, one of these cases, if not one of these then one of those coming up in Texas or Arkansas or elsewhere, will wind up going to the Supreme Court. But the truth is, it's getting hard to see how even this Court, in the face of this string of cases all based on the Court's own logic in Windsor, could find a way to defend bans on same-sex marriage.