MConnell/Bush-judge strikes down gay marriage ban in Kentucky

This just gets more delish by the day. A federal judge in Kentucky just struck down that state’s constitutional amendment banning gay marriage.

The judge was appointed by President George H. W. Bush in 1992, at the suggestion of Kentucky’s Republican Senator, and US Senate Republican leader, Mitch McConnell. Heh.

The judge put his ruling on hold, pending appeal. So no one will be getting married in Kentucky. Still, the juggernaut that is gay civil rights, and particular marriage equality, clearly will not be stopped.

Closet-gay-ally Mitch McConnell.

Closet-gay-ally Mitch McConnell.

Evan Wolfson of Freedom to Marry puts it all in perspective. “Today a Republican-appointed federal judge in Kentucky held – as have more than 20 other judges and as did the U.S. Supreme Court last year – that discriminatory state marriage bans are unconstitutional,” Wolfson said in a release.

“Today’s ruling follows a February ruling from the same judge, which stated that Kentucky must respect the legal marriages of same-sex couples performed outside of Kentucky. That case will be heard by the 6th Circuit Court of Appeals on August 6, 2014,” Wolfson added.

Wolfson noted that today’s victory stems from the Supreme Court’s historic decision last June (2013) in the US v. Windsor case, which struck down section 3 of the Defense of Marriage Act (DOMA).  Since that ruling, almost exactly one year ago, “23 consecutive rulings have struck down state marriage bans as unconstitutional,” according to Wolfson.

The judge was quite outspoken in his ruling:

“In America, even sincere and long-hold religious beliefs do not trump the constitutional rights of those who happen to have been out-voted.”

Heyburn rejected the only justification offered by lawyers for Beshear — that traditional marriages contribute to a stable birth rate and the state’s long-term economic stability.

“These arguments are not those of serious people,” he said.

Not of serious people. Hot dmn.

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38 Responses to “MConnell/Bush-judge strikes down gay marriage ban in Kentucky”

  1. Judy Belle says:

    Supreme Court says Utah doesn’t have to recognize same-sex marriages from December, at least for now

    The U.S. Supreme Court on Friday granted Utah’s request for a stay in a appellate court ruling, allowing the state to avoid — at least for now — having to recognize about 1,300 same-sex marriages performed after its ban on such unions was struck down late last year.

  2. Judy Belle says:

    Subject to certain constitutional guarantees, see, e.g., Loving v. Virginia, 388 U. S. 1, “regulation of domestic relations” is “an area that has long been regarded as a virtually exclusive province of the States,” Sosna v. Iowa, 419 U. S. 393, 404. The significance of state responsibilities for the definition and regulation of marriage dates to the Nation’s beginning; for “when the Constitution was adopted the common understanding was that the domestic relations of husband and wife and parent and child were matters reserved to the States,” Ohio ex rel. Popovici v. Agler, 280 U. S. 379, 383–384. Marriage laws may vary from State to State, but they are consistent within each State.

    DOMA rejects this long-established precept. The State’s decision to give this class of persons the right to marry conferred upon them adignity and status of immense import. But the Federal Government uses the state-defined class for the opposite purpose—to impose restrictions and disabilities. The question is whether the resulting injury and indignity is a deprivation of an essential part of the libertyprotected by the Fifth Amendment, since what New York treats as alike the federal law deems unlike by a law designed to injure thesame class the State seeks to protect. New York’s actions were a proper exercise of its sovereign authority. They reflect both thecommunity’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaningof equality. Pp. 13–20.

  3. Judy Belle says:

    Read Kennedy’s comments in the Prop 8 case. He told the lawyers that he would not force such new concept on the entire country.

  4. Judy Belle says:

    Read the rules required by the US Supreme court. They must take a vote and at least five must decide to issue a stay based on if the merits.
    Why stay that which they have the votes to maintain. Either educate yourself or post to those of your kind

  5. Denver Catboy says:

    Why shouldn’t it be? My life isn’t an open book for you. Sorry. :) (No, really, I’m not, but hey, I like having amusement in my life. :) )

    PS: Moderator3 is right. We can hear you just fine. Find the caps lock key (it’s to the right of your A key) and press it once so the light goes out, so you can STOP SHOUTING. :)

  6. Moderator3 says:

    Please do not post in all capital letters. Online etiquette considers it rude.

  7. bob says:


  8. Denver Catboy says:

    That was actually pretty funny. Good caricature of the Right Wing and their ‘TEH GAY IZ EBIL!!11one!1’ meme.

    And if you’re being serious, this goes from funny to f*cking hilarious.

  9. bob says:


  10. Zambanini4Equality says:

    I see you copy and paste this same comment all over the internet! That wouldn’t be such a bad thing IF it were true, but it’s TOTALLY untrue on 2 counts! First, that SCOTUS issued its stay in the Utah case (Kitchen v Herbert) “based upon the likelihood of success on the merits” and secondly that it “invalidated” the Utah ruling!

    Let’s take your latter incorrect assertion first. A stay is just that, a temporary “stay” or “pause” in applying a ruling UPON APPEAL (ie: while it is being appealed to a higher court). A stay in NO WAY “invalidates” a ruling or implies anything negative about the merits of a ruling! It merely gives the opposing party time to appeal the case.

    Second, SCOTUS did NOT issue the stay in Herbert v. Kitchen (the Utah case) based upon “likelihood of success on the merits”! It issued a stay without ANY comment or statement of its reasons! At that time, since the Utah case was the very FIRST case heard since DOMA was struck down, there was no established federal court case law indicating success or lack of success on the merits, so maybe that is why SCOTUS wisely chose to issue a stay without stating their reasoning.

    At the time Kitchen v Herbert was decided, it stood virtually alone as federal authority; accordingly, the stay application had to be measured against a limited jurisprudence of that single case. Since that decision, however, an unbroken tidal wave of 24 consecutive federal and state courts in every corner of the nation—including Arkansas, Illinois, Indiana, Wisconsin, Kentucky, Michigan, New Mexico, New Jersey, Ohio, Oklahoma, Tennessee, Texas, Idaho, Oregon, Pennsylvania, Virginia and Colorado (there have been so many I’ve probably left out someone) — have come to the same conclusion: in the wake of Windsor, marriage equality is a constitutional imperative and a “fundamental right”. Not a single court in the nation has found to the contrary!

    Yet, until the recent Colorado ruling by Judge Hartman, the Courts have continued to issue stays based upon that very early SCOTUS stay ruling and have not performed an independent analysis of the required test for a stay. Instead, they have simply cited the Supreme Court’s ruling in Kitchen, with little or no examination of the relevant factors. The Colorado decision by Judge Hartman has finally turned that around, as he specifically analyzed all 23 cases and performed an analysis of the required test for a stay – looking at all 4 factors (more on those 4 criteria below), and found there was absolutely NO legal reason a stay should be issued! Specifically in light of the extraordinarily uniform legal consensus holding that these bans were unconstitutional – based upon the denial of fundamental rights conveyed by the Due Process and Equal Protection Clauses of the 14th Amendment – he found that there was ABSOLUTELY NO “likelihood of success on the merits” AND that if a stay were issued the harm to the plaintiffs (Gay & Lesbian couples) would greatly outweigh the harm to the defendants (the state of Colorado). The State of Colorado asserted that Clerk Hall was causing “irreparable injury” by issuing same-sex marriage licenses, namely, that she is causing “legal chaos and confusion.” However, Judge Hartman found when pressed, “the State does not identify specific irreparable harm, offering only speculation.” He ruled the irreparable harm in denying these fundamental rights to same-sex couples, outweighs the nonexistant harm to the state, and is so profound that county clerks may issue same-sex marriage licenses even though a ruling that lifts that state’s ban is on hold, pending appeal.

    If SCOTUS were asked today to issue a stay on a Federal Court ruling in a marriage ban case, it would be unimaginable and entirely laughable for them to give “likelihood of success on the merits” as their rationale. There is absolutely NO, ZILCH, NADA, “likelihood on success of the merits” given the body of uniform case law that has been established in the last year!

    You know nothing about the legal process for issuing a stay. As I pointed out SCOTUS issued its stay in Kitchen v Herbert with NO comment – they issued no analysis or rationale whatsoever. However, let’s dispense with your simplistic idea that there is only ONE reason for a stay! You simply have NO idea about the analysis the courts must use in deciding to issue a stay! There are 4 CRITERIA or FACTORS judges must consider and balance in issuing a stay and “likelihood of success on the merits” is only ONE of the possible criteria!:

    In determining whether a stay is issued, the party requesting the stay must meet an exacting burden; courts consider the 4 following factors:

    (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits;
    (2) whether the applicant will be irreparably injured absent a stay;
    (3) whether issuance of the stay will substantially injure the OTHER parties interested in the proceeding; and
    (4) where the public interest lies.

    When a party seeks a stay pending appeal, the court “must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief”- hence the court must consider and weigh factors 2 and 3.

    Regarding the second factor in the list, the SCOTUS ruling in Nken v. Holder must be applied when considering the request for a stay:

    “Nken held that if the petitioner has not made a certain threshold showing regarding irreparable harm . . . then a stay may not issue, regardless of the petitioner’s proof regarding the other
    stay factors.” And according to Nken, a stay applicant’s “burden with regard to irreparable
    harm is higher than it is on the likelihood of success prong, as she must show that
    an irreparable injury is the more probable or likely outcome.”
    Moreover, with respect to irreparable harm, Leiva-Perez v. Holder established that the applicant “must show that there is a reason specific to his or her case, as opposed to a reason that would apply equally well to … all cases” why denial of a stay will irreparably harm the applicant.

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  12. Badgerite says:

    I don’t mean “record” in a the sense of a trail record. I mean a record of arguments made and addressed. Arguments like the Regnerus Study and its validity. Or the state’s interest in stable child rearing families. Etc.
    There is a clear record,of arguments made and rejected and the rationale and a clear consensus in the District Courts at least,and I think one Appeals Court. The Volohk Conspiracy Blog got all excited in that instance because they finally found one judge who did not think the state’s arguments wholly ridiculous. Irrational. The Supreme Court, especially after their ruling in Windsor and Prop 8 cannot simply ignore this consensus. They will have to address it. And explain away, if they can, all the reasoning and arguments made by the lower court judges. De Novo or no De Novo. Because people have been watching and listening. One of the reasons to issue an opinion in the first place is to explain why the decision goes one way or another. And to argue to the public why you, the judge, are right. The people guiding this fight haven’t lost a case yet. They lost one judge on a three judge panel. That is a pretty good record. And that is likely to strengthen Kennedy’s hand if he finally wants to make a stand on this issue.

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  14. wayne says:

    …..obviously, McConnell is not one of those “serious people”…..

  15. jomicur says:

    Not until SCOTUS rules similarly.

  16. rmthunter says:

    It would be nice to have the judge’s name included in the article, without having to search for it.

    As for the substance, at this point it’s hard to be surprised. The issues are pretty clear, the precedents are well established, and there’s really no other way a judge can rule.

    That, however, does not guarantee a victory at SCOTUS — the Hobby Lobby case should be evidence enough for that.

    And there seems to be a competition among the judges to see who can dismiss the defendants’ arguments in the most — how shall I put it? Pointed? — language.

  17. rmthunter says:

    I actually ran across a bit some while back, I think from Arizona, that someone was trying to pass a bill that stated that life begins two weeks before conception. The rationale, as you might imagine, was somewhat fanciful.

  18. 1jetpackangel says:

    I always heard “life begins at last call,” but toMAYto toMAHto…

  19. 1jetpackangel says:

    See, some good news out of my home state every now and then! I can hold my head high, for a little while at least.

  20. Denver Catboy says:

    Man, now I gotta clean my monitor! RIGHT when I had an M&M in my mouth. :D

  21. Denver Catboy says:

    The kids have a phrase for what was done by this judge to the homophobes: PWN3D. Quite appropriate, here.

    I mean, it’s not like the gays will go marry opposite gender people if they can’t marry their loves…..

  22. Colin says:

    Never liked that saying. But the SCOTUS should stop thinking with their SCROTUS.
    Gad! I think I coined one there.;]

  23. BeccaM says:

    …and in terms of women’s ladyparts.

    Shorter SCOTUS: “All Your Uteri Are Belong To Us.”

  24. Jimmy says:

    “In America, even sincere and long-hold religious beliefs do not trump
    the constitutional rights of those who happen to have been out-voted.”

    I think the Supreme Court would disagree, at least in terms of privately-held corporations. ;)

  25. Elijah Shalis says:


  26. Naja pallida says:

    Life begins at erection.

  27. BeccaM says:

    The inalienable right of a sperm cell to fertilize an egg and the right of every ovum to be released on schedule — without interference from naughty females — aren’t at risk here, so for the moment they seem to be cool with it. Don’t worry, we women continue to be well on our way to being reclassified as “On-Demand Gestational Incubators.”

    On the other hand, the Christo-Talibans are in the process of setting up their cases so that homophobes can stick their fingers in their ears and yell “La-la-la-la you’re NOT married, I don’t care what the state says, get out of my store/B&B/office!” — without being sued for public accommodations discrimination. Basically, if they can’t stop the marriages from happening, the bigots will do everything in their power to ensure gay and lesbian couples remain second class citizens anyway.

  28. keirmeister says:

    Curious: Is it that you find that particular phrase offensive?

  29. BeccaM says:

    I love the way Heyburn demolished the homophobes attempt at a legal argument, by pointing out the procreation rationale doesn’t make any sense at all.

    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.”

  30. Indigo says:

    Florida’s up tomorrow, Jul 2, 4pm:

  31. BeccaM says:

    ‘Bitch slapping’? C’mon… you can do better than that.

  32. Badgerite says:

    Not really. When this issue reaches the court there will be a substantial evidentiary record, developed by the district courts that the Supreme Court will have to consider in making its decision. As well as the arguments of the judges in their rulings.

  33. keirmeister says:

    “These arguments are not those of serious people.”

    Now THAT’s the sort of b!tch slapping we need to see more of!

  34. Elijah Shalis says:

    The stay just applies to that case.

  35. Judy Belle says:

    When the federal district court in Utah struck down Utah’s marriage law a few days before Christmas last December, and the State’s request for a stay was denied by both the district court and the court of appeals, the Supreme Court unanimously issued a stay, blocking the district court’s judgment. It is quite rare for the Supreme Court to issue a stay when both lower courts have refused to do so, and the standard that it applies is whether the state had demonstrated a likelihood of success on the merits. The stay issued by the Supreme Court in the Utah case therefore outweighs all of the district court decisions that have recent invalidate state marriage laws combined.too

  36. Elijah Shalis says:

    That would be George HW Bush not George W Bush, which makes more sense.

  37. Dave of the Jungle says:

    It’s enough to give one faith in America.

  38. nicho says:

    The judge apparently hadn’t checked with the Supreme Corporate Court on whether religious beliefs trump the law.

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