Thursday, July 3, 2014


Yes, there is a marriage equality case from Kentucky before the 6th Circuit already, but that one is whether the state must recognize same-sex marriages celebrated elsewhere. That case will be heard on August 6, the same day as cases from Michigan (our big one), Ohio, and Tennessee.

John Heyburn, the same judge who ruled on that earlier case, completed the job, declaring that Kentucky's ban on same-sex marriage is unconstitutional. A stay came with the ruling so no dash to the county clerks' offices. The 6th Circuit hasn't said yet whether this case will be combined with the Michigan case or at least heard on the same day.

Previous marriage cases came with a string of reasons – gays can't procreate, marriage has always been one man-one woman, gays aren't good parents, a child needs a mom and dad, we don't have enough experience yet with same-sex marriage, this is a state issue – but this case has only one. Perhaps state officials learned the other reasons don't fly? We'll this one doesn't either. The reason, with a bit of an addition:
“encouraging, promoting, and supporting the formation of relationships that have the natural ability to procreate.” … traditional marriages contribute to a stable birth rate which, in turn, ensures the state’s long-term economic stability.
The first part is from the state, the second part is apparently the judge summarizing what the state said. Heyburn's response to that claim is being quoted a lot, to which I'll gladly contribute.
These arguments are not those of serious people. Though it seems almost unnecessary to explain, here are the reasons why. 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. … The Court finds no rational relation between the exclusion of same-sex couples from marriage and the Commonwealth’s asserted interest in promoting naturally procreative marriages.

The state’s attempts to connect the exclusion of same-sex couples from marriage to its interest in economic stability and in “ensuring humanity’s continued existence” are at best illogical and even bewildering. These arguments fail for the precise reasons that Defendant’s procreation argument fails.

Ari Ezra Waldman on Towleroad delves into why Heyburn decided the case only on Equal Protection grounds and not on Due Process. That goes back to the big DOMA case the Supremes decided a year ago. In that case Justice Kennedy could have decided on Due Process and didn't. Kennedy could have declared same-sex marriage a fundamental right and didn't. So what Heyburn and all his fellow judges are doing is making their best guess on how Kennedy's ruling should be extended – and how to convince Kennedy their ruling is correct.

Huffington Post has a collection of 15 great protest signs in support of same-sex marriage. It is hard to choose a favorite, though I guess that would be: “Umm... We've been planning your weddings for ages …” All the rest are worth a look.

There have been so many victories for same-sex marriage over the last year that Mark Joseph Stern of Slate has a bit of fun with them. Want a ruling that is plain-spoken? Highly personal? Declares marriage bans to be extremely harmful to gay people? Click on the various buttons of his page and put together phrases from existing rulings to make your own.

Some media talking heads are now proclaiming that with marriage equality we have full equality. Derrick Clinton of Identities.Mic lists 11 reasons why that claim of full equality isn't accurate.

* We can be fired for being gay in many states.

* We're excluded from public accommodation laws in many states.

* We're not included in many hate crime laws.

* Some states still declare consensual sex to be illegal (though the Supremes struck them down 11 years ago).

* Sexually active gay men are banned from donating blood.

* We still struggle for custody rights.

* We aren't accepted in all major religious denominations.

* Our youth aren't adequately protected from bullying.

* We're not included in sex education classes.

* We still face stigma from health care providers.

* We are sometimes turned away from our partners who are hospitalized.

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