“As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe.” Those are the words of Supreme Court Justice Antonin Scalia, drawn from his dissent in the case United States v. Windsor, handed down last year. In that case, the Supreme Court struck down the Defense of Marriage Act, ruling that the United States government could not refuse to recognize same-sex marriages. The Court struck down a law passed by massive majorities in both houses of Congress and signed into law by President Bill Clinton in 1996. While the Court did not rule that all fifty states must immediately legalize same-sex marriage, it set the stage for this eventual result. Justice Scalia made that point clear in his dissent.
Now, Justice Scalia’s prophecy has come to pass in Kentucky. Today, U. S. District Judge John G. Heyburn declared that Kentucky’s ban on recognizing same-sex marriages performed in other states violates the equal protection clause of the U. S. Constitution. Judge Heyburn did not rule that Kentucky must now marry same-sex couples, but that the state must grant full recognition to same-sex marriages legally performed in other states. Nevertheless, Judge Heyburn recognized that his decision points to that eventual result, stating that “there is no doubt that Windsor and this Court’s analysis suggest a possible result to that question.” If anything, that is an understatement. As with Justice Kennedy in his majority opinion in Windsor, Judge Heyburn now clearly points to the striking down of any state’s prohibition on same-sex marriage. As Justice Scalia predicted, we did not have to wait long for the other shoe.
Within hours of Judge Heyburn’s decision, advocates of same-sex marriage announced their intention to file a challenge to what remains of Kentucky’s marriage amendment.
Once again, we face a federal court striking down a constitutional amendment that had been overwhelmingly adopted by the citizens of a state. Judge Heyburn acknowledged the significance of this fact in his decision. In his words: “To the extent courts clash with what likely remains that majority opinion here, they risk some of the public’s acceptance.” He must recognize that the entire experiment in democratic government requires that courts act in this way rarely and carefully. So why did he rule against the moral judgment of the people of Kentucky?
As his decision demonstrates, he did so because of the Supreme Court’s ruling in Windsor. Repeatedly, Judge Heyburn cited Windsor in his decision. “To resolve the issue, the Court must look again to Windsor,” he wrote. And he looked to Windsor again and again. “Ultimately,” he wrote, “the focus of the Court’s attention must be upon Justice Kennedy’s majority opinion in Windsor.”
Thus, those who argued that in Windsor the Supreme Court had effectively paved the way for legal same-sex marriage coast to coast are vindicated in their warnings. Justice Scalia offered that warning from his seat on the Court. Many others offered that warning from other sectors. Sadly, the warnings were validated even sooner than most had expected.
By most counts, Judge Heyburn’s ruling is the tenth state or federal court ruling on the issue of same-sex marriage handed down since Windsor. In just the past several weeks, three federal courts have struck down state prohibitions on same-sex marriage with similar rulings. As Judge Heyburn remarked, “to date, all federal courts that have considered same-sex marriage rights post-Windsor have ruled in favor of same-sex marriage rights.” He added: “This Court joins in general agreement with their analyses.”
“In a democracy, the majority routinely enacts its own moral judgments as laws,” wrote Judge Heyburn. “Kentucky’s citizens have done so here. Whether enacted by a legislature or by public referendum, those laws are subject to the guarantees of individual liberties contained within the United States Constitution.” In striking down the moral judgment of the people of Kentucky, Judge Heyburn cited, once again, the trajectory of court decisions that he traced through the singular and decisive influence of one judge — Justice Anthony Kennedy.
Judge Heyburn noted that his decision in this case points to the eventual requirement that Kentucky legalize same-sex marriage. He did not note that it likely points also to the radical redefinition of marriage itself. In Utah, a federal judge in Utah struck down that state’s laws against polygamy, fast on the heels of another federal judge in the state who had struck down Utah’s ban on same-sex marriage. There will be other shoes to drop. Once marriage can be redefined to allow for same-sex “marriage,” other forms of what will be called marriage will soon follow. If Judge Heyburn, following the lead of Justice Kennedy, will root all opposition to same-sex marriage in religious animus, opposition to the recognition of any and all forms of human relating will soon pass away — or at the very least be dismissed as of no legal significance. Soon we will face very real challenges to religious liberty made inevitable by this decision.
Of the rectitude of his decision, Judge Heyburn is certainly convinced. So much so, in fact, that he asserted that, in time, even the critics of his decision will be won over, “sometime in the not too distant future.”
Christians who affirm the biblical understanding of marriage as the union of a man and woman must now recognize that we can no longer count upon the government and its laws to reflect that understanding. Even the proponents of same-sex marriage must surely recognize the radical legal and moral shift in Western civilization and human history this change implies. Christians understand that marriage is one of God’s greatest gifts to humanity and that marriage, as defined by the Creator, is fundamental to human flourishing.
We now know that the government cannot be counted on to affirm this message. As a matter of fact, we have to face the reality that the government — even in the Commonwealth of Kentucky — may teach a radically different message through its laws. But the real question for Christians is not whether the government gets the question of marriage right, but if we do. In the grand scheme of things, that is the Church’s real challenge.
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Gregory Bourke, et. al. v. Steve Beshear, et. al., United States District Court, Western District of Kentucky at Louisville, Civil Action Number 3:13-CV-750-H, Judge John G. Heyburn, Wednesday, February 12, 2014. http://juryverdicts.net/BourkevBeshearGayRightsRulinginKentucky.pdf
United States v. Windsor, Supreme Court of the United States, Wednesday, June 26, 2013. http://www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf
R. Albert Mohler Jr.
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