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Kentucky gay marriage ban nixed, but no weddings yet

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Gay marriage advocates nationwide heralded the ruling striking down deeply conservative Kentucky's ban on same-sex marriage as a significant milestone, though matrimonies won't begin in earnest there anytime soon.

Tuesday's ruling by a federal judge, which said Kentucky's ban violated the Equal Protection Clause of the U.S. Constitution, was put on hold because similar cases from other states are being heard by a federal appeals court. It's unclear when Kentucky may begin issuing marriage licenses.

It's a conundrum that's played out nationwide in the fight to legalize gay marriage: The rulings mark a significant shift as rulings in favor of gay marriage pile up, but confusion emerges as to when those marriages can begin. In Wisconsin, for example, same-sex couples had a window of about a week to get married before a judge ordered officials to stop issuing them marriage licenses. And in Utah, more than 1,000 couples who rushed to marry after a judge overturned that state's ban will have to keep waiting for many legal benefits of being married.

For now, lead plaintiff Timothy Love of Louisville said he will celebrate the latest victory with his partner of 34 years, 55-year-old Larry Ysunza.

"It's a win and we're going to win in the end. Now, the headline is 'Love Wins,'" Love said Tuesday afternoon.

He also said he anticipated a wait: "We all probably have to wait until the Supreme Court makes its decision" on gay marriage bans across the nation.

In the Kentucky case, U.S. District Judge John G. Heyburn II concluded that the state's prohibition on same-sex couples being wed violates the Equal Protection Clause by treating gay couples differently than straight couples. Heyburn previously struck down Kentucky's ban on recognizing same-sex marriages from other states and countries, but he put the implementation of that ruling on hold.

"Sometimes, by upholding equal rights for a few, courts necessarily must require others to forebear some prior conduct or restrain some personal instinct," Heyburn wrote. "Here, that would not seem to be the case. Assuring equal protection for same-sex couples does not diminish the freedom of others to any degree."

Kentucky Gov. Steve Beshear said the state will appeal Heyburn's decision.

The U.S. 6th Circuit Court of Appeals has scheduled arguments on rulings from Ohio, Michigan, Kentucky and Tennessee in a single session on Aug. 6. Although the cases are unique, each deals with whether statewide gay marriage bans violate the Constitution. It's not yet clear if Kentucky's appeal of the latest decision will also be heard in that session.

Plaintiffs' attorney Dan Canon said the appeals court decision would likely determine the fate of Kentucky's ban, regardless of any move by the governor.

Heyburn noted that every federal court to consider a same-sex marriage ban has found it unconstitutional. Gay rights activists have won 18 cases in federal and state courts since the U.S. Supreme Court in June 2013 struck down a key part of the federal Defense of Marriage Act that denied to legally married same-sex couples a range of benefits generally available to married heterosexuals.

Heyburn, an appointee of President George H.W. Bush, dismissed the governor's argument that Kentucky's prohibition encouraged, promoted and supported relationships among people who have the "natural ability to procreate" and a stable birth rate ensures the state's long-term economic stability.

"These arguments are not those of serious people," Heyburn wrote.

Martin Cothran, a senior policy analyst with the Family Foundation of Kentucky, said Heyburn erred in considering same-sex couples "politically powerless" in today's society.

"We're thinking this judge needs to get out a little more," Cothran said. "Or maybe he could just subscribe to a newspaper or possibly turn on the television, where he could see just how politically powerless are the people whose political power helped produce this decision."

Evan Wolfson, founder of Freedom to Marry, a group backing same-sex marriage, said the ruling shows the public is ready to remove the legal bans put in place in many states.

"It is wrong for the government to deny same-sex couples the freedom to marry the person they love; a freedom that is part of every American's liberty and pursuit of happiness," Wolfson said.

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  1. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  2. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  3. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  4. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  5. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

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