Wednesday, February 12, 2014

Kentucky will survive same sex marriage

I will be on WEKY 1340 AM Richmond tomorrow at 1:30 pm talking about the federal court ruling today tossing out part of Kentucky's constitutional prohibition on gay marriage. I think it's a huge mistake to portray this as some kind of travesty of justice.

U.S. District Judge John Heyburn said that for Kentucky to refuse to recognize same sex marriages performed elsewhere violates the 14th Amendment of the U.S. Constitution. And it does. The 14th amendment forbids states from denying any person equal protection under its laws. Case law gives some leeway to the states when there is a "legitimate government interest" in violating the rights of some, and Gov. Steve Beshear asserted that interest in this case, but couldn't back it up.

That's the key point.

Treating people unequally under the law also violates Section 2 of the Kentucky Constitution, which is another legal provision Beshear has a lot of trouble understanding. Creating and maintaining strong nuclear families is clearly in society's best interests, but defining and enforcing it by government mandate is not. We need to face the fact that freedom can be messy and uncomfortable without being ruinous. This ruling did not cover performance of same sex marriages in Kentucky, only the recognition of those performed elsewhere. But the next ruling will surely address that. Supporting traditional marriage is still a right, it's just not something we can resolve with the force of law. Protecting freedoms must be the focus of legal efforts and to the extent that it is, social issues such as this can be dealt with in ways that make us stronger. That is our real challenge going forward.