Director, Commonwealth Policy Center

In the classic Peanuts cartoon, Charlie Brown lines up to kick a football when Lucy pulls the ball away at the last moment leaving poor Charlie flat on his back yelling Ughhhhh! This might have been how Kentucky voters felt last Wednesday upon learning the news of U.S. District Judge John Heyburn’s opinion striking down the portion of Kentucky’s marriage law which prohibits recognition of out-of-state homosexual marriage. If Heyburn intended an early Valentine’s gift to homosexual couples, he left Kentucky’s man/woman marriage advocates jilted at the altar of democratic process.

A supermajority of Kentucky state legislators agreed that marriage should be defined as one man and one woman and put it on the ballot in 2004. Yet, Kentucky’s Cupid on the Bench apparently aiming to garner recognition for homosexual married couples instead ended up piercing the hearts of 1.2 million voters who believed that marriage between a man and woman is important to our society. If one judge believes he can move the ball, umm—rewrite the law as Heyburn admitted, why should voters bother spending time and energy voting and debating and persuading others to engage in this fundamental public policy issue? Judges rule, citizens drool: that’s the Hallmark Card Heyburn sent to voters across the state anyway.

Such naked judicial activism—the longtime bane of our democratic republic, reaches back to Dred Scott  and Roe and is finding its way to Windsor and her recent legal offspring.  Heyburn joined nine other state and federal courts in striking down state marriage laws after the U.S. Supreme Court struck down DOMA—amounting to Kentucky voters'  biggest Dear John letter as in “Dear John, sorry this whole federalism thing didn’t work out. We’re taking over now. It was nice while it lasted.”

The apparently twitterpated Heyburn said Kentucky’s marriage law violated “equal protection” under the Constitution and that the law was demeaning to those who wanted their same-gender-marriages recognized by Kentucky law. The judge has yet to explain how “equal protection” was afforded to the voters, the democratic process, and the rule of law.

House Speaker Greg Stumbo (D-Prestonsburg) sided with the judge and said the ruling was “legally correct.” State Rep. Stan Lee’s (R-Lexington) lament that the ruling violates the idea that we are “one nation under God” is sure to bring jeers from secularists. Yet Lee’s comment tangentially points to a bigger issue: where does law come from? Does law originate from the bench? Or is there a higher law by which judges should even submit? Man/woman marriage advocates think as much. Even Heyburn acknowledged a smidgeon of religious basis to support a law is OK, but religious basis without other rationale is not enough. Say what?

The political compact of the Commonwealth is predicated on the idea of a Creator—One who gives us our rights and liberties. The state Constitution says as much by giving thanks to “Almighty God for the civil, political and religious liberties we enjoy” and “invokes the continuance of these blessings.”  Was it mere lip service or did our legislative forbears really believe it?

If there is a Creator who defines liberty and gives us our freedoms, then there must be a framework by which these freedoms can be enjoyed—a framework which must be followed if they are to endure. As it is, judges are acting as if they define the rules—not just terms like “equal protection” but defining the rules of life—marriage and its meaning in particular.

Kentucky citizens engaged in the amendment-making process in good faith and followed the rules. When the Lucy’s of the judicial world move the ball mid-kick and unilaterally change the rules mid-game, voters will end up sore and on their backs like a fooled-again Charlie Brown. Many might wish it was just comic strip humor but the consequences to the legal process and the results of the ruling to our society will be anything but funny.


This first appeared in the Floyd County Times in February 2014.