Archive: Judge rips apart Ky's gay marriage case

• Heyburn stayed the ruling until the 6th U.S. Circuit Court of Appeals decides gay-marriage cases.
• Heyburn rejected the notion that traditional marriages contribute to a stable birth rate.
• Heyburn in February had ruled that Kentucky must recognize gay marriages performed in other states.

In striking down Kentucky's ban on gay marriage, a federal judge Tuesday rejected Gov. Steve Beshear's argument that the ban is needed because only opposite sex couples can procreate and maintain the state's birth rate and economy.

"These arguments are not those of serious people," wrote Senior U.S. District Court Judge John G. Heyburn II.

"Even assuming the state has a legitimate interest in promoting procreation," Heyburn wrote in a 19-page opinion, its lawyers never explained how the exclusion of same-sex couples from marriage has "any effect whatsoever on procreation among heterosexual spouses.''

Heyburn stayed his ruling, putting it on hold pending the outcome of gay marriage cases from four states that are to be argued Aug. 6 at the U.S. 6th Circuit Court of Appeals. Those include Heyburn's ruling in February that Kentucky must recognize same-sex marriages performed elsewhere.

Beshear, his lawyers and spokesman declined to respond Tuesday, other than to say the state will appeal, as they did the February ruling.

In their brief in that case, the private lawyers Beshear hired after Attorney General Jack Conway refused to defend the law also cited the argument that the same-sex marriage ban is justified because it encourages procreation by same sex couples.

In a 19-page ruling, Heyburn said he recognized that many Kentuckians oppose same-sex marriage for religious reasons, but added, "In America, even sincere and long-held religious beliefs do not trump the constitutional rights of those who happen to have been outvoted."

Gay rights advocates hailed Heyburn's ruling while opponents of same-sex marriage, including U.S. Mitch McConnell, R-Ky., condemned it.

Dan Canon, one of the lawyers for the pair of gay couples who won the decision, said it "forcefully lays to rest that Kentucky's anti-gay marriage laws were based on anything but invidious discrimination."

Evan Wolfson, founder and president of Freedom to Marry, said the Kentucky ruling "underscores that America — all of America — is ready for the freedom to marry, and the Supreme Court should bring the country to national resolution as soon as possible."

But Martin Cothran, an analyst for the Family Foundation, which led the fight for Kentucky's 2004 constitutional amendment banning gay marriage, said the decision "is another indication that we are no longer a nation of laws, but a nation of judges."

And McConnell, who was been criticized by some conservative Republicans for supporting Heyburn's nomination to the bench in 1992 by President George H. Bush, said: "The people of Kentucky voted to enshrine in our Constitution that marriage in our state is between one man and one woman. I support that position.''

The ruling continues an unbroken string of decisions in which federal judges have struck down rules prohibiting gay marriage, which is now legal in 19 states and the District of Columbia.

The case was brought by two couples: Timothy Love and Lawrence Ysunza, who lived together for 34 years and were denied a marriage license on Feb. 13 by the Jefferson County Clerk's office; and the Rev. Maurice "Bojangles" Blanchard and Dominique James, who have lived together for 10 years and were cited for trespassing when they refused to leave the clerk's office after being denied a license on Jan. 23, 2013. A jury later convicted them of trespassing but fined them only one cent.

Heyburn held that the ban on gay marriage violates the constitutional guarantee of equal protection under the law and that there is "no conceivable legitimate purpose for it."

The plaintiffs claim that the state's constitutional amendment and a similar statute enacted in 1998 deny gay couples benefits awarded to same-sex ones. Those include lower income and estate taxes; leave from work under the Family and Medical Leave Act; the ability to adopt children as a couple; and "perhaps most importantly, the "intangible and emotional benefits of civil marriage."

Heyburn noted that Love's emergency heart surgery had to be delayed last summer to prepare documents allowing Ysunza access and decision-making authority for Love.

In a news conference at the law offices of one of his attorneys, Shannon Fauver, Blanchard said that he was elated by the decision. Love said, "I never thought I would see this day in my lifetime, but I'm glad to be part of it."

He said he and Ysuna refused to go to another state to get married.

"Why should we have to go elsewhere," he asked. "We are Kentuckians. We love Kentucky."

Asked about Beshear's decision to keep defending the ban, Blanchard denounced the governor, likening him to Alabama Gov. "George Wallace standing in the schoolhouse door blocking black children from coming inside."

Blanchard said he began fighting for the right to marry after a gay member of his church was hospitalized and his partner was shuffled from one hospital official to another for three hours before finding out that his lover had died.

In a statement, U.S. Rep. John Yarmuth, D-Louisville, said the ruling "affirms once again that there is no government interest in discrimination against same-sex couples. I am proud our Commonwealth has joined the growing list of states recognizing that the right to marry applies to all citizens."

Heyburn ruled that gays are a "disadvantaged class" and deserve protection similar to women in equal protection cases. That in turn required the state to show that Kentucky's gay marriage ban is "substantially related to an important governmental object."

But he ruled that even under a less demanding standard, lawyers for Beshear had shown "no rational relation between the exclusion of same-sex couples from marriage and the commonwealth's asserted interest in promoting naturally procreative marriages."

Since Heyburn's February decision requiring Kentucky to recognize gay marriages, eight federal judges and one federal appeals court have invalidated state laws banning gay marriage.

Asked about their marriage plans, Blanchard said he and James hope to be first in line if and when the stay is lifted, while Love said he and Ysunza will wait.

"We don't want the same anniversary as everybody else," he said.

Reporter Andrew Wolfson can be reached at (502) 582-7189.