Louisville, KY—Yesterday activist federal district Judge John G. Heyburn II ruled that Kentucky must recognize the “marriages” of four couples who were “married” in other states and Canada, and, in so doing, struck down part of Kentucky’s marriage law, including its constitutional marriage amendment passed by 74 percent of the voters in 2004. The marriage amendment stated: “Only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.”
Recommended by Sen. Mitch McConnell (R-KY) and nominated by George H.W. Bush, Judge Heyburn became a federal judge in 1992. Relying on Justice Kennedy’s 2013 majority opinion in United States v. Windsor, which struck down the section of the federal Defense of Marriage Act (DOMA) that defined marriage for federal purposes, Judge Heyburn said he “cannot conceive of any reasons for enacting the [marriage] laws challenged here.” He discounted procreation or “responsible procreation” and child rearing as legitimate reasons for the marriage laws. He spoke of the law “evolving” and cited a dissent from Justice Oliver Wendell Holmes (who once wrote “Three generations of imbeciles are enough” as justification for the state forcibly sterilizing people), that “judges do and must legislate…” Judge Heyburn acknowledged that when courts go against something as fundamental as “traditional marriage,” “they risk some of the public’s acceptance.” He then tried to answer his own question: “How can a single judge interfere with that right?” In his failed attempt to address these issues, Judge Heyburn downplayed religious concerns and beliefs, saying again the law has “evolved” and pointing to three decisions from Justice Kennedy (Romer v. Evans, striking down Colorado’s law on homosexuality; Lawrence v. Texas, striking down Texas’s sodomy law; and Windsor, striking down part of the federal DOMA).
“Using words like ‘evolve’ and ‘judges do and must legislate,’ Judge Heyburn revealed the extent of his judicial activist philosophy,” said Mat Staver, Founder and Chairman of Liberty Counsel. “Judge Heyburn and other judges should rightly be concerned that courts run the risk of losing the confidence of the people and thereby rush headlong into illegitimacy. Citing ‘evolving’ judicial decisions or even public opinion is not sufficient cover for judges. The Constitution is a contract with America and cannot be altered by a single judge’s stroke of a pen. Courts are playing with fire when they elevate personal opinion above the natural created order of male and female marriage. The only power courts have resides in the trust of the people that they are acting within the rule of law. Once that confidence is broken, as it well could be over the marriage debate, the courts lose their legitimate authority. It is absurd to say that there is no conceivable reason for a law affirming marriage as one man and one woman,” said Staver.
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