The Aftershocks Of Windsor

Yesterday in Kentucky, US District Judge John G. Heyburn II ruled that the state was constitutionally obligated to recognize same-sex marriages performed in other states, citing Windsor and other new laws and rulings that have struck down state bans in recent months:

Although the judge said he was bound by precedent in his judicial region (the federal Sixth Circuit) to apply only the easiest-to-meet constitutional standard — that is, “rational basis” review — he said that Kentucky’s refusal to give equal treatment to validly married same-sex Kentuckians could not satisfy even that low-level test.  He canvassed all of the arguments made for treating same-sex married couples differently, and found none of them to have merit.

A noteworthy part of Judge Heyburn’s opinion was a studied effort to explain to those who would be offended by his ruling, especially on the basis of their religious or cultural beliefs, why he was led to his decision as a constitutional matter.  That section of the ruling read very much like a basic civics lesson about the way that the Constitution’s protection of individual rights may sometimes override traditional moral and political preferences, and even trump the expressed wishes of a political majority.

Mark Joseph Stern points out that Antonin Scalia’s premonitions about Windsor were absolutely right:

Now, for the second time in two months, a federal judge has taken Scalia at his word and struck down state-level anti-gay laws. This time, the unlikely state is Kentucky, and the judge is John G. Heyburn, a George H.W. Bush appointee recommended by Republican Sen. Mitch McConnell. Heyburn’s opinion mostly follows the emerging pattern of these kinds of rulings: He wavers on the scrutiny question, finds that the law was driven by anti-gay animus, and strikes it on Equal Protection grounds. The ruling itself is narrow; Heyburn was only asked to invalidate the portion of Kentucky’s law that bans recognition of out-of-state gay marriages. But the judge added that should the entire ban be challenged, “there is no doubt that Windsor and this court’s analysis” would likely hold it unconstitutional.

The path to a final resolution of this seems shorter by the day. That’s not because of judicial tyranny, but because of the logic of seeing gay citizens as equal under the law.

(Photo: Justin Sullivan/Getty)