Not QUITE Following the Reasoning in Bourke v. Beshear

As you may or may not have heard, a federal judge for the Western District of Kentucky has decided that Kentucky – which has a state constitutional ban on same-sex marriage – may not refuse to recognize same-sex marriages performed out of state. So, if Kentucky recognizes a marriage license from, say, New York, it must recognize that license whether or not the two parties on the license happen to both be male, notwithstanding what the duly-approved amendment to the Constitution of Kentucky says on the matter. The opinion is available to read here.

First, the usual disclaimer. I’m not a legal expert, and I don’t have a law degree. Reading court cases is just something I do in my spare time for fun (well, I AM a nerd).

That out of the way, I think this decision erred in a couple of ways, and I want to spell out how.

A brief summary of the reasoning is in order, and it goes a bit like this. Kentucky may make whatever moral judgements its likes in its laws, so long as they do not come into conflict with rights guaranteed by the US Constitution. Kentucky’s constitutional ban on same-sex marriage – which is only two sentences long and includes a clause prohibiting the recognition of same-sex marriages or civil unions performed out of state – is such a moral judgement. The right to marry is long established in American caselaw as "fundamental." That said, it is not currently clear whether this "fundamental" right includes a right to marry someone of the same sex. Since the Supreme Court has never clarified that question, the part of Kentucky’s SSM ban that declares that marriages in Kentucky are only between a man and a woman is allowed to stand. That said, to the extent Kentucky recognizes marriages from out of state as valid, it may not pick and choose which ones it recognizes without coming into conflict with the national Constitution’s Equal Protection Clause and Due Process Clause – unless it can provide a rational basis for doing so. In theory, such prohibitions should be subject to Strict Scrutiny, since homosexuals are (probably) a protected class due to past discrimination, but since the Supreme Court recently declined an opportunity to require Strict Scrutiny for matters pertaining to discrimination against homosexuals (he’s refering to United States v Windsor), we apply the Rational Basis test instead (which tends to defer to duly-enacted legislation). Since no compelling Rational Basis was offered for the prohibition, the Court finds it incompatible with the 14th Amendment.

The reason that I wanted to write about this case is that it’s the one ruling I’ve read that comes the closest to convincing a skeptic like me that there really is a legal "right" to government-recognized same-sex marriage, at least in Kentucky. But "close" isn’t the same thing as "across the line," so let’s talk about where (I think) it goes wrong.

  1. On the distinction between the right to have a marriage license recognized and the right to be issued a marriage license (p.10)

Despite [the general recognition by the courts that the right to marry is fundamental], neither the Supreme Court nor the Sixth Circuit has stated that the fundamental right to marry includes a fundamental right to marry someone of the same sex. Moreover, Plaintiffs do not seek the right to marry in Kentucky. Rather, they challenge the State’s lack of recognition for their validly solemnized marriages.

So, this is trying to split hairs between forcing Kentucky to "solmenize" marriages which higher courts have never required it to "solemnize" and forcing Kentucky to recognize marriages so "solemnized" in other states that it would itself decline to "solmenize." I don’t think it works, and that’s because I’m not aware of any reasoning that compels a state to honor the public policies of another state. For example, I have an undeniable Constitutional right ot bear arms, but there’s some murkiness about whether "bearing arms" includes the right to conceal them in public. Some states, like Indiana (where I live), afford me that right with a properly issued license. Other states (Massachussetts) do not. Massachussetts is not, as far as I know, compelled to recognize a concealed carry permit from Indiana in contradiction of its own statutes. Likewise, I’m not sure why Kentucky should be required to recognize a Massachussetts marriage certificate that contradicts its own statutes. Now, the judge would agree with that provided Kentucky can show some rational basis for its policy (MA’s rational basis for its concealed carry permit is obvious: it’s an attempt to reduce gun crime. Note that the rational basis test doesn’t require the judge to agree with the conclusion – and in this case of course I personally think it’s folly to think that banning concealed carry will reduce gun crime in any way – just to recognize that the reasoning that led to the conclusion exists and isn’t egregiously fallacious). So, on to the next points.

  1. On whether failing to recognize SSM certificates issued by a state violates Amendments 5 and 14 (p. 11)

In Windsor, Justice Kennedy found that by treating same-sex married couples differently than opposite-sex married couples, Section 3 of DOMA "violate[d] basic due process and equal protection principles applicable to the Federal Government."

I would personally emphasize the applicable to the Federal Government part of that. Kentucky isn’t the Federal Government, and this isn’t the same quesiton. The reason the Federal Government might be compelled to recognize any marriage license issued by any state is that the courts have long held that marriage is a state-level prerogative, which is a back-handed way of saying that the Federal Govenrment must inherit its definition of marriage from the several states. Now, I personally don’t agree with that: the US is a dual-sovereignty system, and I don’t have a problem with the Federal Govenrment having its own definition of marriage that applies to federal-level questions and allowing state defintiions of marriage to apply to state-level question. But that is the implication of Windsor. Which is fine as far as it goes, but since Kentucky, as per Windsor, is allowed to create its own definition of marriage – is, indeed, one of the sources of the federal definition – I’m not sure this applies to Kentucky. The "same-sex married couples" are not married per Kentucky’s definition, so nothing compells Kentucky to treat them "equally," given that they aren’t equally situated.

  1. On whether Kentucky’s law is motivated by ‘mere animus’ (pp. 11-12)

The legislative history of Kentucky’s laws clearly demonstrates the intent to permanently prevent the recognition of same-sex marriage in Kentucky. Whether that purpose also demonstrates an obvious animus against same-sex couples may be debatable. But those two motivations are often different sides of the same coin.

Fine, but "often" isn’t the same as "always," so it isn’t enough to note the correlation. This, by the way, is pursuant to the ruling in Windsor that laws need some basis beyond "mere animus" to be valid. Needless to say, Windsor concluded that only "mere animus" was involved in passing DOMA. (The relevant section is on p.24 of Justice Kennedy’s majority opinion, and it directly references Moreno‘s assertion that "The Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.") Leaving aside whether Windsor accurately characterized DOMA (as anyone who has read that case will know, what "animus" even means and whether the Majority used it correctly was the substance of both Scalia’s and Roberts’ dissents in Windsor), I don’t see any evidence that Kentucky was motivated by "mere animus" in declining to recognize out-of-state same-sex marriages. The District Judge’s reasoning here seems to be that we assume animus absent a rational basis – so take that how you will.

  1. On whether Kentucky demeans same-sex couples by depriving them of rights reserved for others (p. 13)

The second principle is that such an amendment demeans one group by depriving them of rights provided for others.

Except that these rights are not provided by Kentucky. It would be one thing if Kentucky recognized same-sex marriages conducted in Kentucky, opposite-sex marriages conducted in Kentucky, opposite-sex marriages conducted outside of Kentucky, but not same-sex marriage conducted outside of Kentucky. THAT would be "depriving them of rights provided for others." But since Kentucky doesn’t provide the "right" to a same-sex marriage, it’s difficult to see what rights are being deprived. At least, it’s difficult to see what rights are being deprived unless you’re willing to say that Kentucky is similarly depriving them by not issuing same-sex marriage licenses of its own. But this judge declines to say that (though passages like this lead one to suspect that he’s hoping to open the door to some other court saying that later on). Also, what happens if Kentucky "remedies" this "situation" by recognizing same-sex marriages performed out of state? In that case, won’t it be depriving its own same-sex couples of "similar rights?" Which is, of course, almost certainly where this is headed, and why this seems more than a little duplicitous. No, the correct interpretation here is that Kentucky is doing the equitable thing by banning same-sex marriage across the board, regardless of where the license was obtained. That is, as was well established in Windsor, Kentucky’s prerogative.

  1. Justifications that could have been, but weren’t, presented for the law (p.15). This is the section where my lack of legal training hits hardest, because I simply have no idea what the status of amicus briefs actually is. I get that they’re not actual arguments before the court, but they would hardly be filed if the court didn’t have the discretion of reading and considering them, so they can’t be completely removed from the process either. In this case, the judge sort of notes that some of the amicus briefs gave better arguments than the State of Kentucky in support of the ban, but that he wouldn’t be considering them because (a) they weren’t presented by the State and (b) they had been rejected by other District Court rulings as providing a rational basis in any case. The reasons identified are "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." Judge Heyburn doesn’t really address any of them except the ones to do with procreation, and he does that poorly:

The exclusion of same-sex couples on procreation grounds makes just as little sense as excluding post-menopausal couples or infertile couples on procreation grounds. After all, Kentucky allows gay and lesbian individuals to adopt children. And no one has offered evidence that same-sex couples would be any less capable of raising children or any less faithful in their marriage vows.

This assumes that it makes no sense to "exclude post-menopausal couples," when actually there might be a good case for that. But no matter, the point is that the second sentence is a non-sequitor. Heyburn seems to be confusing "procreation" with "rearing." He’s also missing what everyone seems to miss about this argument, which is that it’s the state interest in promoting the institution of marriage that leads it to issue marriage licenses. It’s not that the government expressly approves of every particular union. In that sense, it’s no different than continuing to issue food stamps despite the knowledge that someone, somewhere who could conceivably hold down a second job and cover all of his bills is abusing the system. Anyone who meets the qualifications gets food assistance whether or not they ideally should, presumably because it’s been determined that the cost of screening every applicant to the required degree is not worth it, and that some limited abuse of the system is acceptable in exchange for the benefits it achieves. Likewise, if not every heterosexual couple meets the description of one that can (a) procreate and (b) provide the optimal child-rearing environment, there is still some social benefit to encouraging the continuation of an institution that (a) encourages procreatively-capable people to join in union and procreate and (b) stay together to rear the children once they’ve done so. The point of the traditional marriage, to put a fine point on it, is in the social pressure, and that distinguishes it from the (still largely fictional) institution of same-sex marriage. Now, of course Judge Heyburn is not wrong that someone needs to provide a rational basis for this law, but it seems to me that the amicus brief did that. And he’s incorrect, in my humble opinion, that the opposing side doesn’t need to show, in response, that recognizing out-of-state same-sex marriages would serve these purposes. When he says "Compare this with Plaintiffs, who have not argued against the many merits of ‘traditional marriage.’ They argue only that they should be allowed to enjoy them also," the piece of the argument he’s missing is the one that shows that same-sex marriage is equivalent to traditional marriage in all ways but the pairing of the sexes involved. Gay couples can’t "enjoy" "the many merits of ‘traditional marriage’" unless those merits are also provided by same-sex marriage, and prima facie they don’t seem to be.

Bottom line: I don’t think he quite makes his case. It’s certinly more cogently and sensitively argued than any other similar opinion I’ve read, but it’s missing a lot of important pieces all the same. I think Heyburn got this wrong. Kentucky’s ban on recognizing out-of-state same-sex marriages (and civil unions) is constitutional as written and should be allowed to stand.

One caveat: obviously there could come – and there probably will come – a time when same-sex marriages are essentially equivalent to traditional marriage in every way but sex pairing. That is, there will probably come a time when mothers put pressure on their gay sons to settle down and find a husband, when a lebian cheating on her partner is a community scandal that causes loss of job, expensive lawsuits, community shunning, etc. That time is not now. When it comes, we can sensibly talk about "marriage equality." At the moment, however, gay marriage is not equivalent to traditional marriage, and that is of crucial legal importance.

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