DYCHE | Serious Same-Sex Marriage Opinions - WDRB 41 Louisville News

DYCHE | Serious Same-Sex Marriage Opinions

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By John David Dyche
WDRB Contributor

In his recent decision striking down Kentucky’s laws limiting marriage to one man and one woman, U.S. Senior District Judge John G. Heyburn II derisively dismissed arguments made by Kentucky governor Steve Beshear. “These arguments are not those of serious people,” Heyburn said.

Judge Paul Kelly, Jr. of the U. S. Court of Appeals for the Tenth Circuit is indisputably a serious person. President George H. W. Bush nominated both Heyburn and Kelly to the federal bench.

When his court recently overturned Utah’s same-sex marriage ban, Kelly dissented. His opinion is an excellent example of conservative judicial restraint and offers support that Beshear should note if he is truly serious about defending Kentucky’s traditional marriage regime.

Kelly quoted U.S. Supreme Court Justice Samuel Alito’s dissent in U.S. v. Windsor, which held that the federal government must recognize same-sex marriages legal under state law. “Same-sex marriage presents a highly emotional and important question of public policy – but not a difficult question of constitutional law.”

Marriage is an issue for the states, “albeit consistent with federal constitutional guarantees,” wrote Kelly. “If the States are the laboratories of democracy, requiring every state to recognize same-gender unions – contrary to the views of its electorate and representatives – turns the notion of a limited national government on its head.”

Because the U.S. Constitution does not address marriage, much less same-sex marriage, Heyburn and Kelly addressed the threshold question of whether the cases presented a substantial federal question that a U. S. District Court can adjudicate.

In 1972, the U.S. Supreme Court held that an appeal from a ruling by Minnesota’s Supreme Court that neither due process nor equal protection conferred a constitutional right to marry on same-sex couples did not present a substantial federal question. Normally that decision would bind lower federal courts, as Kelly concluded, but Heyburn said that subsequent “doctrinal developments” rendered it non-binding.

Whereas Kelly reached a deferential and well-reasoned conclusion that “subsequent doctrinal developments have not undermined the Court’s traditional deference to the States in the field of domestic relations,” Heyburn cited “a virtual tidal wave” of such developments and said “it is difficult to take [that argument] seriously.”

Both judges then considered whether same-sex marriage bans violate equal protection. They noted that even though the Supreme Court could have done so in Windsor, it had not declared same-sex marriage to be a “fundamental right” deserving review under the most exacting standard, called “strict scrutiny.”

Kelly concluded that a more relaxed “rational basis” standard of review was appropriate. Heyburn preferred an intermediate standard, but said Kentucky’s amendment could not survive “regardless of the standard.”

Under “rational basis” review, Heyburn explained, “the plaintiffs have the burden to prove either that there is no conceivable legitimate purpose for the law or that the means chosen to effectuate a legitimate purpose are not rationally related to that purpose.” Given the heavy burden of demonstrating that a law lacks any legitimate purpose or is irrationally unrelated to such purpose, it is not surprising that most measures pass constitutional muster.

But Heyburn emphatically rejected Beshear’s argument that Kentucky’s amendment is rationally related to a legitimate purpose of “encouraging, promoting, and supporting the formation of relationships that have the natural ability to procreate,” and thereby promotes a stable birth rate and economic stability. This is apparently all Beshear argued to sustain Kentucky’s laws, but Kelly’s opinion offers a bit more.

As Kelly noted, however, the state can rely on any plausible reason to uphold the same-sex marriage ban. “Whether a reason actually motivated the electorate or the legislature is irrelevant,” and “the fact that the classification could be improved or is ill-advised is not enough to invalidate it.”

Kelly contended that Utah’s law should be “upheld as rationally related to (1) responsible procreation, (2) effective parenting, and (3) the desire to proceed cautiously in this evolving area.” He noted arguments, like Heyburn’s, that “it is doubtful that the behavior of opposite-gender couples is affected by same-gender marriage,” but concluded that the classification need not be perfect, but “need only arguably serve the justifications urged by the state.”

Citing “the reams of sociological evidence” and “scores of amicus briefs,” Kelly concluded that “the State’s position is (at the very least) arguable,” and “most certainly is not arbitrary, irrational, or based upon legislative facts that no electorate or legislature could conceivably believe.” Thus, concluded Kelly, “We should resist the temptation to become philosopher-kings, imposing our views under the guise of constitutional interpretation of the Fourteenth Amendment.”

Heyburn disagreed. “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.”

These dueling opinions provide previews of how the Supreme Court will split when another same-sex marriage case reaches it. One need not oppose same-sex marriage (I don’t) to side with Kelly (I do), nor support it (I do) to join Heyburn (I don’t). Whether same-sex marriage is good policy is a distinct question from whether the Constitution compels it.

John David Dyche is a Louisville attorney and a political commentator for WDRB.com. His e-mail is jddyche@yahoo.com. Follow him on Twitter @jddyche.
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