Tuesday, July 01, 2014

Marriage Policy Under Martial Law: Federal judge strikes down KY's Marriage Amendment

The Family Foundation's new press release:

LEXINGTON, KY— "For all practical purposes, Judge G. Heyburn has declared martial law on marriage policy in Kentucky," said a spokesman for the group that led the effort to pass the Marriage Protection Amendment in 2004 in response to today's decision by a federal court to strike down Kentucky's marriage law. "This decision is another indication that we are no longer a nation of laws, but a nation of judges."

Martin Cothran, senior policy analyst with The Family Foundation, criticized the reasoning in the decision to strike down Kentucky's marriage law: "The judge cited 'doctrinal developments' by other federal judges that ignored judicial precedent in favor of traditional marriage laws as a reason for invalidating our law. This raises the 'everybody else is doing it' principle to a judicial doctrine."

The group said that Judge John Heyburn's decision ignored the language of the US Supreme Court's recent Windsor decision in which it said that the definition of marriage was still up to individual states.

"By taking another important area of policy out of the hands of voters, liberal judges have struck another blow against the separation of powers that is an underlying principle of our form of government."

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13 comments:

KyCobb said...

That is a very fine whine, Martin. I presume you think it was wrong for the Supreme Court to take the issue of banning interracial marriage out of voters hands in Loving v. Virginia?

Martin Cothran said...

Miscegenation was an issue of who marriage applied to, not how marriage was defined.

KyCobb said...

Marriage was defined as between one man and one woman of the same race. How dare activist judges take the definition of marriage out of voters hands?

Martin Cothran said...

KyCobb,

The whole point is that no one ever made that argument. Do you have a source?

KyCobb said...

Yes, they did: "See, e.g., Scott v. State, 39 Ga. 321, 1869 WL 1667, at *3 (Ga. 1869). “The Code of
Georgia . . . prohibits the marriage relation between the two races, and declares all such marriages null
and void. With the policy of this law we have nothing to do. It is our duty to declare what the law is, not
to make law.” Id.; see also Frasher v. State, 3 Tex. Ct. App. 263, 1877 WL 8520, at *8 (Tex. Ct. App.
1877) (“The objection to our statute . . . should be addressed to the legislative, and not the judicial,
branch of the government.”)."

http://lawreview.vermontlaw.edu/files/2012/02/johnson1.pdf

Martin Cothran said...

KyCobb,

Are you serious? You really think this establishes your point? Then why does it explicitly say "the marriage relation between the two sexes"? If you are defining marriage so as to exclude different races you could literally not say this.

I'd try another tack if I were you.

KyCobb said...

Martin, that was the point about judges not interfering. Here is the point about marriage being between two people of the same race, which was regularly made in support of anti-miscegenation laws: “Why the Creator made one white and the other black, we do not know; but the fact is apparent, and the races are distinct, each
producing its own kind and following the peculiar law of its
constitution. . . . The natural law, which forbids their
intermarriage and that amalgamation which leads to a corruption
of races, is as clearly divine as that which imparted to them
different natures.” Green v. State, 58 Ala. 190, 1877 WL 1291, at *4 (Ala. 1877) (quoting W. Chester &
Phila. R.R. Co. v. Miles, 55 Pa. 209, 1867 WL 2422, at *4 (Pa. 1867))

lzambeni said...

Judge Heyburn's decision has not declared "martial law" on marriage in Kentucky - he has upheld CONSTITUTIONAL law. Martin Cothran's comment is sheer right wing hyperbole and ignorance meant to stir up a frenzy with his right wing base. All these bans, including Kentucky's, are in direct and patent violation of, and have been struck down based upon, the Equal Protection Clause of the 14th Amendment of the US Constitution which applies to ALL citizens and reads:

"ALL persons born or naturalized in the United States, and subject to the jurisdiction thereof, ARE citizens of the United States and of the State wherein they reside. NO State shall make or enforce ANY law which shall abridge the privileges or immunities of citizens of the United States; NOR shall ANY State deprive ANY person of life, liberty, or property, without due process of law; NOR deny to ANY person within its jurisdiction the EQUAL protection of the laws."

The only way people like Mr Cothran get away with ridiculous statements like this is because, sadly, a large swath of the American public is lacking in an understanding of basic 8th grade civics and government. It's a sad commentary on our educational system. Additionally, the MSM, especially outlets like FOX News, let their guests get away with misleading comments like this without correcting them! So the ignorance, misinformation and lies persist and spread in our populace like a virus! Those who say these decisions are the work of “activist judges” and that they are denying the “will of the people” would do well to familiarize themselves with the Equal Protection Clause and how our tripartite system of government our founders created works: ALL laws, whether passed by the state legislature, state courts, or “the will of the people” via a ballot initiative or referendum, must pass FEDERAL Constitutional muster! It serves to prevent the “tyranny of the majority” from denying equal rights to a minority. This is basic 8th grade civics and government, yet sadly, I can’t tell you how many people, including Mr Cothran, I have heard adamantly making such uneducated comments about “activist judges” overruling “democracy” and “the will of the people”. (And just because FOX News says it, doesn’t make it so!)

The Hollow Man said...

Martin is a logic teacher whose political writings generally consist of straw men, slippery slopes and false equivocations. He is in no way, shape or form a lawyer nor is he the modern day Chesterton he likes to portray himself as. Heyburn is the only federal judge that has properly decided the issue. All the cases striking down gay marriage bans have been based on the laws failing "the rational basis test." It is nearly impossible for a law to fail the rational basis test, and majority morality has long satisfied this test. However, if a law has discriminatory impact and the group suffering discrimination are a "protected class" the law receives far stricter scrutiny. If a group would have been discriminated against in 1865, they are a protected class. Obviously, homosexuals meet this criteria. Therefore, the gay marriage ban did not survive stricter scrutiny. Heyburn properly applied this analysis as opposed to the rational basis test. He followed the law and 70 years of precedent. To equate this to "martial law" makes conservatives (of which I am one) sound like hyperbolic fools.

Martin Cothran said...

Hollow Man,

If you're going to criticize someone else for their views on a legal decision, you should take the trouble to actually read it yourself. It's pretty clear that you didn't.

Heyburn did not apply "stricter scrutiny," he applied the rational basis test (the one you said he didn't apply) which is the lowest of the three levels of scrutiny. He says this very clearly.

Heyburn did not follow "70 years of precedent." He even admits that he doesn't. In fact, he takes the trouble to cite Baker v. Nelson in his discussion of why he is ignoring precedent. He doesn't doesn't follow precedent, he says, because of "doctrinal developments" happening "now."

I suggest reading the actual decision before you comment on it.

Hank Reynolds said...

Since I apparently belong to the large swath of retrogrades “lacking in an understanding of basic 8th-grade civics,” my defense is that same-sex marriage was never mentioned in my 8th-grade civics class because nobody had dreamed up anything quite so absurd. In fact, by the time I got to law school, same-sex marriage was still unheard of. All that changed basically yesterday at the whim of liberals, who instead of re-writing the Constitution simply redefine the terminology. What they have not succeeded in changing, at least not yet, is what they taught us in 8th-grade biology.

Martin Cothran said...

Izambeni,

So you're saying that the 14th amendment requires a genderless concept of marriage? How is it that no one was aware of this until gay rights groups gained political power?

KyCobb said...

Martin,

The 14th Amendment requires the equal protection of law. So if the government is going to treat a class of persons differently, it has to be at least have a rational relationship to a legitimate state purpose, and if it impinges on a suspect classification or a fundamental right the justification for the classification has to be significantly stronger. Also, in light of the Hobby Lobby decision, what is the compelling state interest in refusing to recognize religious same-sex marriages when both secular and religious opposite sex marriages are recognized?