“And my love’s too strong/to let you go”
In a thoughtful and interesting opinion, Judge John G. Heyburn II, a federal trial judge in Kentucky, ruled in Bourke v. Beshear on February 12, 2014, that the state’s statutory and constitutional provisions refusing to recognizing marriages of same-sex couples validly entered in other jurisdictions violate the U.S. Constitution. That makes it the fourth federal court to find constitutional problems with discriminatory marriage bans in the wake of the Supreme Court’s United States v. Windsor decision last June striking down part of the so-called Defense of Marriage Act (DOMA). This Valentine’s gift to same-sex couples in the Bluegrass State and supporters of marriage equality across the land offers the Supreme Court one more piece of evidence that the time is rapidly coming to hold that non-recognition of same-sex couples’ marriage and that all laws excluding same-sex couples from marriage are unconstitutional, period.
In this case brought by four same-sex couples (one of them together 44 years!), each married validly outside Kentucky, the court concluded that the state’s non-recognition violated the Equal Protection Clause of the Constitution. Its doctrinal analysis broke little to no new ground. The court didn’t need to rule on a variety of the plaintiff’s constitutional claims, such as applicability of the fundamental constitutional right to marry to same-sex couples, since it found the plaintiffs won on equal protection grounds. After setting forth some of the arguments why a less deferential, heightened form of equal protection scrutiny might be appropriate, the court decided it did not need to apply more than rational basis review, the most deferential of the three tiers of scrutiny applicable to discrimination alleged to violate equal protection rights, because Kentucky’s action could not survive even that lenient form of review. The state’s asserted interest in “preserving the state’s institution of traditional marriage” was not sufficient, nor were “traditional” family organization The Family Trust Foundation of Kentucky (which does business as The Family Foundation of Kentucky)’s proffered interests in “responsible procreation and childrearing, steering naturally procreative relationships into stable unions, promoting the optimal childrearing environment, and proceeding with caution when considering changes in how the state defines marriage.”
It should be noted that this case only presented a challenge to Kentucky’s refusal to recognize marriages of same-sex couples legally entered elsewhere. None of the plaintiffs were seeking the right to be married in Kentucky. Thus, the trial court wrote, it “was not presented with the particular question whether Kentucky’s ban on same-sex marriage is constitutional. However, there is no doubt that Windsor and this [c]ourt’s analysis suggest a possible result to that question.” In Judge Heyburn’s view, then, the principles and reasoning of Windsor not only translate from a challenge to federal refusal to recognize a same-sex couple’s validly entered marriage to a challenge to a state’s refusal to recognize such a marriage, to (in a future case) a state’s refusal to let such a couple marry.
Perhaps more interesting than its constitutional analysis were the trial court’s rhetorical moves. Judge Heyburn took pains at the outset to emphasize that the suit was about civil marriage, and that while it may implicate “issues of [religious] faith, beliefs, and traditions,” “[o]ur Constitution was designed both to protect religious beliefs and prevent unlawful government discrimination based upon them.” After his analysis leading to the conclusion that Kentucky’s refusal to recognize validly entered marriages of same-sex couples, he reassured the public that “no court can require churches or other religious institutions to marry same-sex couples or any other couple, for that matter. This is part of our constitutional guarantee of freedom of religion.” At the same time, however, the judge emphasized that “[o]nce the government defines marriage and attaches benefits to that definition, it must do so constitutionally.… 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.” (He tactfully consigned the over religious foundation for Kentucky’s discriminatory marriage amendment espoused by the measure’s sponsor to footnote 15 of his opinion.)
Also worth noting were the court’s conscious efforts to situate its decision in a broader historical context. “No case of such magnitude arrives absent important history and narrative,” Judge Heyburn wrote in the first part of his opinion. He traced how “gradual changes in our society, political culture and constitutional understandings have encouraged some [same-sex couples] to step forward and assert their rights,” from suits in Kentucky and other states rejecting marriage claims in the early 1970s; through the Hawai`i Supreme Court’s 1993 decision (some “[t]wenty-one long years later,” he wrote in a sign of appreciation of the daily toll of marriage discrimination on same-sex couples and families they head) in Baehr v. Lewin holding that state’s exclusion of same-sex couples from marriage to be discriminatory in in need of justification; through DOMA and other deliberate legislative and constitutional steps (again, in Kentucky and elsewhere) to assure the denial of marriage and marriage rights to same-sex couples in the wake of Baehr; up to the last ten years’ “virtual tidal wave of legislative enactments and judicial judgments in other states [that] have repealed, invalidated, or otherwise abrogated state laws restricting same-sex couples’ access to marriage and marriage recognition.”
The judge was also at pains to note that his analysis of the issues is not aberrational. “Nine state and federal courts have reached conclusions similar to those of this Court,” he noted, starting with the pathbreaking Massachusetts decision in Goodridge v. Department of Public Health in 2003. “Over the last several months alone, three federal district courts have issued well-reasoned opinions supporting the rights of non-heterosexual persons to marriage equality in similar circumstances,” he noted. “Indeed, to date, all federal courts that have considered same-sex marriage rights post-Windsor have ruled in favor of same-sex marriage rights. This Court joins in general agreement with their analyses.”
The trial court also made a point of rejecting any suggestion that he might be doing something improper, or that these various courts were “creating new rights.” Citing Justice Kennedy’s opinion for the Supreme Court in Lawrence v. Texas, he wrote:
the right to equal protection of the laws is not new. History has already shown us that, while the Constitution itself does not change, our understanding of the meaning of its protections and structure evolves. If this were not so, many practices that we now abhor would still exist.
Contrary to how it may seem, there is nothing sudden about this result. The body of constitutional jurisprudence that serves as its foundation has evolved gradually over the past forty-seven years. mThe Supreme Court took its first step on this journey in 1967 when it decided the landmark case Loving v. Virginia, which declared that Virginia’s refusal to marry mixed-race couples violated equal protection. The Court affirmed that even areas such as marriage, traditionally reserved to the states, are subject to constitutional scrutiny and “must respect the constitutional rights of persons.” Windsor, 133 S.Ct. at 2691 (citing Loving).
In Romer, Lawrence, and finally, Windsor, the Supreme Court has moved interstitially, as [Justice] Holmes said it should, establishing the framework of cases from which district judges now draw wisdom and inspiration. Each of these small steps has led to this place and this time, where the right of same-sex spouses to the state-conferred benefits of marriage is virtually compelled.
[edited Feb. 14, 2014 to correct link to opinion]