Movement toward same-sex marriage (SSM) in Kentucky.
2014-FEB: Reactions to the court decision.
2014-FEB-12: The National Organization for Marriage (NOM) condemns the District Court's memorandum:
NOM's main function is to prevent any same-sex couples from marrying in the U.S. Its president, Brian Brown, wrote:
"Today's decision emphasizes the need for Congressional action to prevent our states' marriage laws from spiraling further into chaos. Congress needs to explicitly reinforce the sovereign right of the states to make their own determinations regarding marriage.
Today yet another federal judge has entered the competition for lawlessness on the marriage front. Today's decision emphasizes the need for Congressional action to prevent our states' marriage laws from spiraling further into chaos. Congress needs to explicitly reinforce the sovereign right of the states to make their own determinations regarding marriage, and to have those determinations respected by the federal government -- which would include having those determinations protected from coerced modification through dubious readings of the 14th amendment such as we have here."
Dr. John Eastman, a law professor and the chairman of NOM's board of directors, said:
"In Windsor [v. United State], decided just last June, the Supreme Court placed great weight on the fact that States have primary authority for determining marriage policy. It therefore held that the federal government must respect New York's decision to alter the definition and purpose of marriage so that the institution encompasses same-sex relationships. Kentucky, as more than 30 other states have recently done, continues to further marriage policy that is tied to the unique procreative abilities of men and women. Yet this federal judge has, contrary to the strong federalism language in Windsor, determined on his own that Kentucky is not allowed to make that policy choice.
If the decision is upheld, Kentucky will have to recognize as marriages same-sex relationships that were given marriage certificates in other nations, but there is no reason to limit the ruling to same-sex relationships. Presumably, Kentucky will also be forced to recognize as 'marriage' polygamous and other marriages that were valid in the country in which they were performed. This drives a stake through the heart of Kentucky's profound policy judgment, and through the reasoning of the Windsor decision that instructed the lower courts to respect such state policy judgments." 1
Webmaster's comments on Dr. Eastman's assessment:
Dr. Eastman seems to be promoting a system in which federal courts, including the U.S. Supreme Court, cannot declare a law or a clause in a state constitution to be invalid if it is found to violate the U.S. Constitution. Yet this very function has been a major responsibility of federal courts down through the centuries.
He agrees with virtually all other constitutional specialists that the individual states have the responsibility to define which couple are eligible to marry. But he seems to believe that states have the freedom to pass a law -- or amend their constitution -- in a way that violates the U.S. Constitution. If that were true, then we might as well tear up the U.S. Constitution.
Fortunately, it is not true. The U.S. Constitution remains the supreme document that all U.S. federal and state laws and state constitutions must not violate.
There is no reason to fear that Judge Heyburn's decision will lead to states recognizing foreign polygamous marriages. His memorandum opinion deals solely with recognition of ordinary marriages by two adults whose only unusual feature is that both spouses are of the same sex. There have been many fears expressed by religious and social conservatives that if we allow marriage equality for same-sex couples then there is no way we would be able to prevent men from marrying dogs, women from marrying the Eiffel Tower, men from marrying 5 wives, fathers from marrying their daughters, etc. Over a decade has passed since the first country legalized same-sex marriage. None of these fears have materialized in any of the 17 countries that has achieved marriage equality. Still, fear of totally irregular marriages, coupled with long-standing culturally and religiously induced animus towards sexual minorities is an effective tool to generate opposition to marriage equality for gays, lesbians and bisexuals. Some commentators find fear useful to encourage opposition to same-sex marriage.
I posted much of the above three paragraphs to the NOM web site's comments section and received a notice that it was being held for review. After waiting for three days, I have given up expecting it to be published. I guess that they don't like opinions that conflict with their own. Pity.
Other resactions to Judge Heyburn's memorandum:
Paul Chitwood, executive director of the Kentucky Baptist Convention, said that the ruling is:
"tragic and disappointing. ... This decision moves us down the slippery slope toward launching Kentucky into moral chaos and depriving children of their innate need of both a father and a mother. I pray the appeals process will honor the Commonwealth's constitution and protect her children." 2
He wrote on his blog that the District Court's decision "usurped the will of Kentucky voters." He wrote that If the ruling is upheld by higher court(s) then the state’s constitutional definition of marriage would be:
"... in jeopardy. As [Judge] Heyburn declares that the Commonwealth must recognize gay marriages performed in other states, the Constitution of Kentucky is being undermined." 3
Luke Hall responded to this comment by posting a message on Chitwood's blog, stating:
"What is truly tragic is that the Southern Baptist Convention has turned into an institution that no longer values individual thought and personhood, but rather feels compelled to dictate what it thinks is right."
Albert Mohler Jr., President of the Southern Baptist Theological Seminary said:
"Once again, we face a federal court striking down a constitutional amendment that had been overwhelmingly adopted by the citizens of a state. This decision marks the 10th state [court] or federal court to hand down rulings on the issue of same-sex marriage based on the outcome of [the] United States v. Windsor case."
Chip Hutcheson, president of the Kentucky Baptist Convention, warned that:
"There is no question that the full-fledged effort to redefine marriage will not end here, but I fear will only pick up steam. And that means religious liberty is under attack. Those of us who have the conviction that same-sex marriage is contrary to the teaching of Scripture will see escalating efforts to not only muffle our voices, but, in fact, to finance this lifestyle. ... Christians will be expected to celebrate a lifestyle we believe to be morally depraved."
With freedom of speech guaranteed by the First Amendment to the U.S. Constitution, muffling people's speech directly is unlikely. But it may to happen indirectly. According to national polls, acceptance of same-sex marriage has been increasing steadily for the past two decades and became the belief of a majority of American adults circa 2009. All indications are that this trend will continue into the future because older teens and young adults are much more supportive of same-sex marriage than are seniors. As with other major cultural changes, like interracial marriages, those who oppose the change may begin to be widely thought of as bigots -- like racists, sexists, and xenophobes,. A charge of bigotry is a very effective muffler.
Steve Weaver, Chairperson of the Kentucky Baptist Convention's Public Affairs Committee said:
"The important aspect to remember is that a much higher court than the [U.S.] Supreme Court has already ruled on the definition of marriage and it has not, and cannot, be changed. The sanctity of marriage exists because God defines marriage, not federal judges. The court has usurped the will of the people and our Constitution, but this is not the worse place for us, because it puts us in a place of greater dependence upon the God of the universe.
We must remember that we are not wrestling against flesh and blood, but against spiritual forces. This does not mean we should demonize our opponents, but that there are spiritual forces at work and we must be constantly vigilant."
Evan Wolfson, president of the LGBT advocacy group Freedom to Marry, issued a statement that expressed an opposite view. He said:
"The bipartisan momentum for marriage [equality] is building at an unprecedented speed. In just the past several weeks, federal judges in Utah, Oklahoma, and Kentucky; the Attorney Generals of Virginia and Nevada; the Governor of Nevada, and now a federal judge in Virginia have all said that marriage discrimination against loving and committed gay couples is indefensible under our [federal] Constitution. There has been a fundamental shift in the legal landscape." 3
Sam Marcosson, a gay rights scholar, author, and law professor at the University of Louisville said that the District Court ruling:
"... will undoubtedly be one of the most important decisions in Judge Heyburn’s career. ... I think he was trying to remind readers that majorities have frequently tried to work their will, often on the basis of moral and religious views, in ways that are deeply harmful to minority groups. They had no evidence of any actual basis for treating those groups as less worthy, for segregating them or discriminating. It was simply the assertion of power and privilege, and neither that nor the dominant religious view of the majority, are enough when the right to equal protection is asserted." 4
The Attorney General of Kentucky, Jack Conway, said that the FEB-12 ruling is not final because it may be appealed. 5
Allison Martin, a spokesperson for the Attorney General's Office, said that no decision would be made whether to appeal the District Court's ruling until after the final order is released. 6
The following information source was used to prepare and update the above essay. The hyperlink is not necessarily still active today.
- "National Organization for Marriage Condemns the Decision by a Federal Court to Strike Down a Component of Kentucky's Laws Regulating Marriage," National Organization for Marriage, 2014-FEB-12, at: http://www.nomblog.com
- "Judge: Ky. must recognize same-sex marriages," The Washington Post, 2013-FEB-12, at: http://www.washingtonpost.com/
- "Marriage ‘in jeopardy,’ Ky. Bapt. leaders say," SRNNews, 2014-FEB-14, at: http://www.srnnews.com/
- Michael A. Lindenberger, "Kentucky Judge Turns Gay Marriage Tide in the South," Time Magazine, 2014-FEB-13, at: http://nation.time.com/
- Matthew Thomas, "Lawsuit filed in hopes of ending ban on gay marriages in Kentucky," WLKY-TV, 2014-FEB-14, at: http://www.wlky.com/
- "Couple sues Kentucky to issue same-sex marriage license," Fox News, 2014-FEB-14, at: http://www.foxnews.com/
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Copyright © 2014 by Ontario Consultants on Religious Tolerance.
First posted: 2014-JAN-02
Latest update: 2014-FEB-27
Author: B.A. Robinson