Brief analysis of Love v. Beshear

By Richard Nelson

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July 11, 2014

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When Judge John Heyburn struck down Kentucky’s constitutional law defining marriage on July 1, he did so on dubious grounds—appealing to the Equal Protection Clause of the Fourteenth Amendment which essentially says that all citizens must be treated equally under the law.  Of course, we should all be for equal treatment under the law, but the logic of “homosexuals are treated unequally because they are not allowed to marry” is like saying 15-year olds are not treated as full citizens because they are not allowed to vote.

The ruling has numerous problems. First, Heyburn cited the Fourteenth Amendment while conveniently skipping over the Tenth Amendment which says “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Since the Constitution does not speak to the issue of marriage, this amendment reserves the right of states to define it. A total of 31 states have done this. Here’s a brief analysis:

*On page two of the ruling, Heyburn goes on to say that he does not  “determine whether Kentucky’s law interferes with a fundamental right.” Then says on page seven “the only question that remains is whether the right Plaintiffs seek to exercise is a fundamental right.” He’s apparently overriding Kentucky law and going right to the U.S. Constitution as the source of our rights. However, Heyburn could have gone back to the Declaration of Independence which relied on “the Laws of Nature and of Nature’s God” as the source of rights. No natural law theory posits that homosexual unions are fundamental rights.

*Heyburn cites several cases that indicate that marriage is a fundamental right. What he conveniently neglects is that in every case he refers to, marriage has always been defined and understood as exclusively between two people of the opposite sex. It is a giant leap to say on one hand that marriage is a fundamental right and then on the other hand, redefine an objective institution and recalibrate its parameters to meet a subjective liberty interest.

*Heyburn argues that Plaintiffs are exercising a fundamental right. But if marriage is a “fundamental right” without regard to rules and requirements, then marriage simply becomes putty in the hands of anyone seeking state approval for their sexual relationships. On what grounds can the state prohibit consensual polygamous relationships? Consensual group marriages? Consensual incestuous marriages?

*On page 10, Heyburn casually dismissed a Supreme Court ruling in 1986 that upheld state sodomy laws (Bowers v Hardwick). The Supreme Court struck that law down in 2003 (Lawrence v Texas) and said of Bowers it was “not correct when it was decided, and it is not correct today.” Who is to say 25 years from now, the Supreme Court’s or Heyburn’s decision will be deemed incorrect? Has law simply become a concoction of one part legal power and another part shifting public opinion?  The question judges should be asking is: what is right and rooted in truth?

*Heyburn calls homosexuals a disadvantaged class (page 11). Characteristics defining such a class include: historical discrimination, ability to contribute to society, immutable defining characteristics, and political powerlessness. Here are a few points of consideration on each:

Discrimination based on skin color and religious belief is quite different from discrimination based on sexual behavior. To lump these groups altogether is to conflate the issue. Skin color is a non-behavioral, benign characteristic.  Homosexuality is a behavioral characteristic in which the practice is not harmless. Society has collectively discriminated on various types of harmful behavior, including sexual behavior on the grounds of preserving the health, safety and welfare of a community. Religious communities including Muslims, Christians and Jews have also discriminated against the practice of homosexuality for moral and theological reasons.  A profound truth that has been lost in this argument is that everyone discriminates, everyday, and for good and legitimate reasons. A society that fails to discriminate in the best of sense is a society that invites its own ruin.

As for homosexuals contributing to society, Heyburn says “he cannot think of any reason why homosexuality would affect a person’s ability to contribute to society.” Many homosexuals have contributed to society, but has their sexual orientation made the contribution? Or was it their great skill in their profession? Writers, actors, musicians, etc., are great not because they wear their sexuality on their shirtsleeve, but rather because they achieved at an exceedingly high level. In many cases, accomplished homosexuals have kept their sexual practices entirely private.

*Heyburn calls homosexuality an immutable characteristic. But his definition of immutability is dubious.  He says the “relevant inquiry is not whether a person could, in fact, change a characteristic, but rather whether the characteristic is so integral to a person’s identity that it would be inappropriate to require her to change it to avoid discrimination.” So now immutability is based on a subjective feeling? According to Webster’s Dictionary, immutability means “unable to be changed.” Since many homosexuals have left the homosexual life, it refutes the notion of immutability.

Finally, Heyburn claims that homosexuals are politically powerless.  This claim cannot be taken seriously. The black community is a legitimate disadvantaged class that was powerless until the civil rights movement. Homosexuals on the other hand, have never been denied the right to vote, faced segregation of public restrooms, forced to sit in a “gays only” area or sprayed down with fire hoses and attacked by police dogs. Today, homosexuals comprise some of the most powerful and effective political lobbies (Human Rights Campaign, PFLAG, National Gay and Lesbian Task Force). And they have achieved high office (six U.S. Congressmen and one U.S. Senator). For the above reasons, homosexuals do not objectively meet the requirements of a disadvantaged class.

*On page 12, Heyburn claims that a person can change their gender. “For example, strictly speaking, a person can change her citizenship, religion, and even gender.” (Italics mine). Heyburn then goes on to say that these are ‘an integral part of human freedom’ entitled to constitutional protection, as is sexual expression.” How the right to change ones biological gender gets lumped in with the right to change one’s religion is unclear. The main and clear difference between the two is that religion is mentioned in the First Amendment of the Constitution while the right to define one’s own gender is not found anywhere. 

In summary, Heyburn’s understanding of liberty (more akin to libertinism) is perhaps just a dangerous as unilaterally overturning the state’s well defined marriage law.  Under Judge Heyburn’s novel definition of liberty, there should be no societal constraints on consensual human sexuality. His novel rewriting of marriage law strikes down the opposite-sex basis as an integral requirement of marriage and he implies that any consenting adult should be able to marry. This gross judicial overreach utterly disregards the separation of powers, undermines the democratic process of amending the state Constitution, and implies an arrogance that his opinion is superior to the supermajority of state legislators and 1.4 million Kentucky voters who amended the Constitution in 2004.

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Director, Commonwealth Policy Center