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Jul 01 2014

Kentucky’s turn

Federal Judge John Heyburn has struck down the state’s prohibition of same-sex marriage. And he makes a marvelously clear and reasonable dismissal of the homophobes’ arguments.

The Court will begin with Defendant’s only asserted justification for Kentucky’s laws prohibiting same-sex marriage: “encouraging, promoting, and supporting the formation of relationships that have the natural ability to procreate.” Perhaps recognizing that procreation- based arguments have not succeeded in this Court, see Bourke, 2014 WL 556729, at *8, nor any other court post-Windsor, Defendant adds a disingenuous twist to the argument: traditional marriages contribute to a stable birth rate which, in turn, ensures the state’s long-term economic stability.

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. See Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1252, 1291 (N.D. Okla. 2014) (“Marriage is incentivized for naturally procreative couples to precisely the same extent regardless of whether same-sex couples (or other non-procreative couples) are included.”). 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. These arguments fail for the precise reasons that Defendant’s procreation argument fails.

44 comments

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  1. 1
    Marcus Ranum

    These arguments are not those of serious people

    Plonk!

  2. 2
    throwaway, never proofreads, every post a gamble

    Now we have another reason to gloat over Ohio and Tennessee!

    Boy, I’m surprised it came so early…. I figured we’d have been just ahead of Mississippi.

  3. 3
    Nerd of Redhead, Dances OM Trolls

    This decision should be mailed to every state still appealing, just to show them what judges think of their stupid arguments, with a note “if you can’t do better, stop your appeal”.

  4. 4
    phud

    We should give a warm welcome to the Judge John Heyburn as he sttempted to move the federal judiciary into the 21st century.

    John Roberts and his four little friends will likely pull us back into a previous era, but it was fun while it lasted.

  5. 5
    magistramarla

    It was good to read some good news from a judicial decision after all the bad news yesterday.

  6. 6
    samihawkins

    Though it seems almost unnecessary to explain, here are the reasons why

    It’s a rare thing to see a judge being snarky, but when they do, damn!

  7. 7
    Travis

    These arguments are not those of serious people. Though it seems almost unnecessary to explain, here are the reasons why.

    That is a wonderful, eminently readable take-down of these common, foolish ideas that are presented against same-sex marriage. The meaning is not lost behind jargon, no one can complain about it being legalese and try to ignore it.

  8. 8
    F [i'm not here, i'm gone]

    Now we have another reason to gloat over Ohio and Tennessee!

    Someone’s gotta do it. You have my support as an Ohioan.

  9. 9
    Snoof

    This particular part characterises every not explicitly religious argument against anti-marriage equality I’ve ever seen:

    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.

    Well said.

  10. 10
    Tony! The Queer Shoop

    Pam Bondi, my state’s Attorney General, needs to read Judge Heyburn’s dismissal.

    Florida Attorney General Pam Bondi announced plans this week to defend the state’s gay marriage ban in two upcoming court cases, including a high-profile Miami hearing involving six same-sex couples. The move followed recent criticism of a brief she filed in yet another case, in which she argued that overturning the ban would “impose significant public harm.”

    Yet Bondi and Florida Governor Rick Scott, both Republicans, have downplayed their personal views on gay marriage, even as they appeal to conservatives eager to keep Florida’s marriage laws intact.

    “My job is not to write the law, but to defend it,” Bondi said in a statement earlier this month following outcry over her brief.

    Florida voters in 2008 approved a constitutional amendment banning gay marriage. All over the state, legal challenges are advancing as a wave of court rulings across the nation strike down similar laws, with the latest decisions on Wednesday invalidating same-sex marriage bans in Utah and Indiana.

    http://articles.chicagotribune.com/2014-06-25/news/sns-rt-us-usa-florida-gaymarriage-20140625_1_gay-marriage-ban-florida-family-action-marriage-laws

    She must think that all the judges overturning same sex marriage bans across the country haven’t heard of the Argument from Public Harm.

  11. 11
    nich

    I’ve had to endure more than a few idiots gloating over the fact that the same judiciary that writes the snarky rulings in favor of same-sex marriage can also came down on the side of a Hobby Lobby. “You thought it was great when Judge Jones was laughing at the creationists and homophobes! Well look at you now!” Look, you conservative asswipes, I wasn’t gloating that you lost. I was cheering that the good side won. The fact judges can get it so god-awfully wrong sometimes doesn’t mean I can’t smile when they get it right. Besides, laugh while you can fuck-os, because the future does not belong to you. Eventually the snark will be aimed at Hobby Lobby calling IUDs an abortifacient the same way it was aimed at the stupid reasoning behind gay marriage bans.

  12. 12
    dailydouq

    Wow, are courts inconsistent! One group is gradually winning their freedom in the courts (hurrah) while the Repug war on women continues to prevail in the top court. What silly excuse will the states think of to try to claim same-sex marriage is bad – oh, SCOTUS just gave business a religious exemption, so states can now try to claim they’re people, instead of government, so they can escape the Establishment clause of Bill of Rights.

    Heyburn for SCOTUS!

  13. 13
    Tony! The Queer Shoop

    dailydouq:

    Heyburn for SCOTUS!

    On the one hand, I echo that sentiment. On the other, I think misogyny and sexism in the US runs deeper than homophobia.

  14. 14
    Larry

    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.

    It’s tyranny, I tells ya! A judge puttin’ the hammer down on such fine, xtian, arguments.

  15. 15
    Jackie

    W00T!

  16. 16
    twas brillig (stevem)

    “My job is not to write the law, but to defend it,” Bondi said in a statement earlier this month following outcry over her brief.

    wha? Florida pays her to DEFEND its laws? I think she needs to become reacquainted with her job description.

  17. 17
    Menyambal

    A well-thought and well-written conclusion. Much respect for this judge, much.

  18. 18
    tomh

    Are the wackos still claiming these are liberal, activist judges? From Heyburn’s biography, “On the recommendation of Senator Mitch McConnell, Heyburn was nominated by President George H. W. Bush.”

  19. 19
    azhael

    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.

    I’m impressed. I don’t think i could have said that without using at least 5 expletives.

  20. 20
    Christophe Thill

    Well, sure, these arguments are ridiculous. But suppose they weren’t.

    So it would mean that the state’s interests can trump and negate individual freedom?

    Isn’t this approach somewhat… stalinist?

  21. 21
    =8)-DX

    This must be that slippery slope they were talking about – allow it one place, and suddenly it’ll spread to the whole country!

  22. 22
    Gregory Greenwood

    That seems to have fatally holed the anti gay marriage legal arguments beneath the waterline, the latest in a series of uncharacteristically rational and humanistic judgements in US courst on this issue of late. Now, if only a similar coup de grâce could be applied to the heinous republican war on women…

  23. 23
    tiredofusernamerules

    “Heyburn for SCOTUS!”

    I know you’re kidding, but Judge Heyburn has been a decent, non-ideological, moderately conservative judge. I believe he will be taking senior status soon, as I have heard he has health problems. If he were nominated by a Republican, I could live with that. He’s a pretty nice guy, too.

  24. 24
    Anri

    Christophe Thill @ 20:

    Wait – a religion-based argument being founded on an authoritarian worldview?

    Say it ain’t so!

  25. 25
    futurechemist

    The decision ends with a nice appeal to common sense.

    “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.”

    People should also read the end of his decision from February about Kentucky needing to recognize same-sex marriages performed in other states. He gives a thorough explanation of the separation of church and state and how personal beliefs don’t trump other people’s constitutional rights.

    In other news, the 7th Circuit (IL, IN, WI) has ruled that Indiana must immediately recognize, at least temporarily, the marriage between 2 women where 1 of the women has terminal cancer. The Indiana attorney general was arguing that not even a spouse having terminal cancer was enough reason for Indiana to abandon its traditional definition of marriage.

  26. 26
    arensb

    Allow me to propose a parable to explain how the marriage-and-procreation argument works, as far as I can tell:

    “The state has an interest in fostering civic associations: such associations transform a neighborhood from a set of inhabitants into a more cohesive whole, with greater financial stability, friendliness, and generally someplace that’s much more pleasant to live.
    “However, if Jews are allowed to join civic associations, it will lower the value of membership, and fewer people will want to join. This goes against the state’s interest.”

  27. 27
    Andrew T.

    Is there a downloadable copy of the ruling anywhere that isn’t a Scribd link?

  28. 28
    A Hermit

    It is often noted that newspaper headlines can be misleading. Not so in this case: (Caution, USA Today link with autoplay video)

    Judge rips apart Kentucky’s gay marriage argument

  29. 29
    frog

    I love when judges render snarky decisions. Good jurists are talented with words. For me, the pinnacle of this form is Bradshaw v. Unity Marine. Judgement available here:

    http://kevinunderhill.typepad.com/Documents/Opinions/Bradshaw_v_Unity_Marine.pdf

    It starts off seriously enough, but you can tell the judge is kind of exasperated by the fact this case exists at all. And then he reaches a point where, clearly, just thinking about the nonsense of this case has caused him so much annoyance, he just has to uncork, and he does so spectacularly. The fun begins with this paragraph:

    Before proceeding further, the Court notes that this
    case involves two extremely likable lawyers, who
    have together delivered some of the most amateurish
    pleadings ever to cross the hallowed causeway into
    Galveston, an effort which leads the Court to surmise
    but one plausible explanation. Both attorneys have
    obviously entered into a secret pact–complete with
    hats, handshakes and cryptic words–to draft their
    pleadings entirely in crayon on the back sides of
    gravy-stained paper place mats, in the hope that the
    Court would be so charmed by their child-like efforts
    that their utter dearth of legal authorities in their
    briefing would go unnoticed. Whatever actually oc-
    curred, the Court is now faced with the daunting task
    of deciphering their submissions. With Big Chief
    tablet readied, thick black pencil in hand, and a devil-
    may-care laugh in the face of death, life on the razor’s
    edge sense of exhilaration, the Court begins.

  30. 30
    Ariaflame, BSc, BF, PhD

    @frog #29 – Gold (I’m not a lawyer, but I read snark fairly well).

    Let the sanity in the area of same sex marriages continue to spread.

  31. 31
    Naked Bunny with a Whip

    It’s like the state’s lawyers forgot they were in front of an actual judge and not trolling George Takei’s Facebook page.

  32. 32
    scienceavenger

    …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.

    This is the Wedge Strategy applied to gay marriage. They know they can’t just come out and say “the reason is gays choose to go homo rather than marrying and squeezing out puppies like normal people, thus reducing the pool of breeders”. So they stripped out all that ignorance and just left a bland “somehow, someway” argument behind.

  33. 33
    David Marjanović
    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 defendant’s argument is derived from a much darker worldview: that of Alan Keyes. In that worldview, people don’t choose to get married to a partner they can beget children with, and they don’t choose to have children. No choice is involved at all! People do these things because they’re their duties. Offer a way around these duties, and people will stop doing those things. And then we’ll die out (argument from fear: the worst-case scenario is automatically true).

    It’s a strictly logical deduction from batshit bugfuck Republican premises (with only one logical fallacy, the argument from fear, thrown in – the argument from fear being itself such a premise). Dr. Dunning, meet Dr. Kruger.

  34. 34
    hillaryrettig

    “These arguments are not those of serious people”

    reminds me of Pauli’s classic, “It’s not even wrong.” :-)

  35. 35
    cactuswren

    I think the last time I saw a judge get this creatively snarky, it was in a case involving Orly Taitz. (And it was pretty clear from reading that ruling that the judge had been frantically leafing through every text in his office, desperately searching out the legal-Latin for “Plaintiff is batshit”.)

    Opposing same-sex marriage on the grounds of “ensuring humanity’s continued existence” — isn’t that tantamount to saying, “Gay sex is so overwhelmingly, overpoweringly attractive as an option, if we make it a legitimate choice NO ONE ON THE PLANET will EVER have straight sex again and humanity will die out”?

  36. 36
    scienceavenger

    Some population geneticist needs to calculate just how many people would have to “go gay” to threaten humanty’s existence. Something tells me its an order of magnitude higher than the actual number.

  37. 37
    Azkyroth Drinked the Grammar Too :)

    Opposing same-sex marriage on the grounds of “ensuring humanity’s continued existence” — isn’t that tantamount to saying, “Gay sex is so overwhelmingly, overpoweringly attractive as an option, if we make it a legitimate choice NO ONE ON THE PLANET will EVER have straight sex again and humanity will die out”?

    Eh…it makes perfect sense if you really, really think women are gross. >.>

  38. 38
    Gordon Davisson

    Actually, I thought this bit hit the nail on the head:

    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.

    Prohibitions against gay marriage are a classic case of the tyranny of the majority, and it’s entirely appropriate for the courts to overturn the popular vote in cases like this.

    BTW, I remember reading an article last year (after a series of victories for gay marriage) about how all the easy progress had been made, and we shouldn’t expect many (if any) more states to allow gay marriage for several years… I continue to be astonished at how wrong that’s turned out to be.

  39. 39
    Ken Kohl

    phud@#4

    Exactly! Exactly! Exactly!

  40. 40
    ck

    tomh wrote:

    Are the wackos still claiming these are liberal, activist judges? From Heyburn’s biography, “On the recommendation of Senator Mitch McConnell, Heyburn was nominated by President George H. W. Bush.”

    Well, many of the Tea Party idiots think George H. W. Bush was a liberal, entirely because he raised taxes, and wasn’t nearly far enough to the right for them.

  41. 41
    thetalkingstove

    Some population geneticist needs to calculate just how many people would have to “go gay” to threaten humanty’s existence. Something tells me its an order of magnitude higher than the actual number.

    I don’t think there is any such number that would threaten humanity. Even if 100% of the world suddenly became gay, there would still be vast swathes of people who wanted to become parents. The typical way of having children would just change.

  42. 42
    Esteleth, [an error occurred while processing this directive]
    Some population geneticist needs to calculate just how many people would have to “go gay” to threaten humanty’s existence. Something tells me its an order of magnitude higher than the actual number.

    I don’t think there is any such number that would threaten humanity. Even if 100% of the world suddenly became gay, there would still be vast swathes of people who wanted to become parents. The typical way of having children would just change.

    Not only that, but there is some evidence that the sisters of gay men have disproportionately more children, and more of their children survive to adulthood. So…

    But yes, a lot of the conservatives seem to be arguing that:
    (1) heterosexual sex is icky and gross and no one in the right mind would seek it out
    (2) homosexual sex is, on the other hand, awesome and fun and all the cool kids want to do it
    (3) parenthood is an unrelenting slog with no bright spots.

    Therefore, people have to be forced to couple and have children, otherwise they wouldn’t.

  43. 43
    John Horstman

    The argument only doesn’t make sense becasue the judge is presupposing that (legal) marriage exists at all. The argument in opposition to legalizing same-sex marriage is basically that the only legal justification for marriage law in the first place (at it is inherently discriminatory) is some kind of overriding state interest – in a stable population or in economic productivity, for example – and that if we’re no longer using it as an incentive for heterosexual couples to procreate, there is no justification for it. I agree completely, but conclude the opposite: we should not have legal recognition of marriage. I think all of these cases should be concluding that the ongoing discrimination by the state against unmarried people (and married people in a few cases – whether marriage is a net tax benefit or burden keeps changing, for example) is unjustified by any overriding state interest and thus a violation of the equal protection clause of the 14th Amendment.

    That said, if one DOES accept that the state has in interest in incentivizing procreation and that marriage is a useful tool for doing so (both dubious claims, given the ever-rising global population and the total lack of a correlation between procreation and marriage), it doesn’t follow that denying people the ability to marry whomever they wish alters the incentive in any way. It’s not like hetero couples are required to procreate or their marriages are void, after all – the incentive is still there, it just allows a slightly larger group than is necessarily intended to gain a benefit.

  44. 44

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