Answers in Genesis (AiG), developer of the Ark Encounter theme park in Northern Kentucky, confirmed today it is filing a federal lawsuit against state officials for denying the park participation in the state’s tax rebate incentive program. Although the program is available to all qualifying tourist attractions seeking to build in the state, AiG’s application was rejected solely because of the religious identity and message of AiG. The lawsuit explains how this action by Kentucky officials, including Gov. Steve Beshear, violates federal and state law and amounts to unlawful viewpoint discrimination.Hat/tip to Joe Jervis
[...]
After Kentucky granted preliminary approval in 2014 for AiG to receive a rebate of some of the new state sales taxes the Ark will generate after it opens in 2016, secularist organizations exerted tremendous pressure on state officials to rescind the approval. Anti-Christian groups objected to AiG’s statutory right to limit its hiring to people of the Christian faith, and to the content of the messages that will be presented at the Bible-themed park. Bowing to this pressure, state officials (including Gov. Beshear) announced a reversal on December 10, 2014. Included as defendants in the lawsuit are Gov. Beshear and Robert Stewart, Kentucky’s Secretary of the Tourism, Arts, and Heritage Cabinet.
1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?It is likely there will be oral arguments in April (90 minutes on Question 1, 60 minutes on Question 2) and a final decision issued in the case(s) by June 2015.
If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.
[...]
Instead, the majority sets up a false premise—that the question before us is “who should decide?”—and leads us through a largely irrelevant discourse on democracy and federalism. In point of fact, the real issue before us concerns what is at stake in these six cases for the individual plaintiffs and their children, and what should be done about it. Because I reject the majority’s resolution of these questions based on its invocation of vox populi and its reverence for “proceeding with caution” (otherwise known as the “wait and see” approach), I dissent.It will be interesting to see how quickly the U.S. Supreme Court responds to today's actions by the 6th Circuit. Ruth Bader Ginsburg predicted that the Court would not feel inclined to get involved unless and until a Circuit split developed, and that is exactly what happened today.
It will be the single-largest legal event in the same-sex marriage debate since June 26, 2013, when the U.S. Supreme Court declared part of the federal Defense of Marriage Act to be unconstitutional. Since then, every major federal and state court ruling nationwide has gone in favor of gay-marriage proponents. The Cincinnati hearings are expected to draw such large crowds of journalists and spectators to the Potter Stewart U.S. Courthouse that the clerk of the 6th U.S. Circuit Court of Appeals has set up two overflow courtrooms equipped with piped-in audio of the proceedings. All five cases will be heard by the same three-judge panel, consisting of former Ohio Supreme Court Justice Deborah L. Cook, 62; ex-state Solicitor Jeffrey Sutton, 53; and Martha Craig “Cissy” Daughtrey, 72. Daughtrey was appointed by President Bill Clinton in 1993, while Cook and Sutton were picked by President George W. Bush in 2003.The 6th Circuit is considered relatively conservative so even though marriage equality is on an unprecedented winning streak in federal court, a win from this court would be something of a surprise.
Hat/tip to Chris Geidner“General Conway has advised me that he will no longer represent the Commonwealth in Bourke vs. Beshear. The State will hire other counsel to represent it in this case, and will appeal Judge Heyburn’s decision to the Sixth Circuit U.S. Court of Appeals and ask the court to enter a stay pending appeal.The question of whether state constitutional provisions prohibiting same sex marriage violate the U.S. Constitution is being litigated across the country. Here in Kentucky, Judge Heyburn has ruled that Kentucky’s constitutional provision does so to the extent that same sex marriages legally performed elsewhere are not recognized in Kentucky. Judge Heyburn also currently has under consideration the broader question of whether Kentucky’s provision prohibiting same sex marriage in Kentucky violates the U.S. Constitution, and I anticipate that decision in the near future.Both of these issues, as well as similar issues being litigated in other parts of the country, will be and should be ultimately decided by the U.S. Supreme Court in order to bring finality and certainty to this matter. The people of this country need to know what the rules will be going forward. Kentucky should be a part of this process.In every other appeal currently in process, a stay has been entered maintaining the status quo until a final decision is reached on appeal. The reason is obvious. Without a stay in place, the opportunity for legal chaos is real. Other Kentucky courts may reach different and conflicting decisions. There is already a lawsuit underway in Franklin Circuit Court, and other lawsuits in state and federal courts are possible. Employers, health care providers, governmental agencies and others faced with changing rules need a clear and certain roadmap. Also, people may take action based on this decision only to be placed at a disadvantage should a higher court reverse the decision.I understand and respect the deep and strong emotions and sincere beliefs of Kentuckians on both sides of this issue, but all Kentuckians deserve an orderly process that will bring certainty and finality to this important matter.”
Dan Canon, another lawyer for the four gay and lesbian couples who won the case, said he was “cautiously optimistic. The order has been granted without qualification and without a stay.”
He said for now that means same-sex couples in Kentucky who legally wed elsewhere can file their taxes together and apply for spousal health benefits. If one of the spouses has a baby while the order is in effect, the law would presume that the spouse’s partner is the other parent, he said.
Elliott said she is “quietly encouraging” clients to take advantage of the ruling now, before Heyburn rules on Conway’s motion for a stay. She said the benefits that same-sex couples receive in the meantime would only be at risk if Conway appeals and Heyburn’s ruling is reversed.
Citing the importance of the case, Conway’s office asked Heyburn to delay the effective date of his order for 90 days to give him time to decide whether to appeal, and to allow Beshear time to decide how to implement the order if it is not appealed.
The motion suggests that Conway is at least considering joining six other state attorneys general who have decided not to appeal rulings throwing out marriage bans. Those officials, all Democrats, said the laws are discriminatory and violate the right to equal protection under the law.The judge has yet to rule on the separate but related question of whether the laws of Kentucky that ban the issuance of marriage licenses to same-sex couples can withstand legal scrutiny in light of the Supreme Court's Windsor ruling. It seems unlikely that if the state must recognize legal marriages from other states that the state also will have to issue marriage licenses as well.
“Today’s court decision is not made in defiance of the great people of Texas or the Texas Legislature, but in compliance with the U.S. Constitution and Supreme Court precedent. Without a rational relation to a legitimate governmental purpose, state-imposed inequality can find no refuge in our U.S. Constitution.”In other words, even under rational basis review, the judge ruled that a state constitutional ban on marriage equality fails to be upheld under the most deferential form of judicial review.
A federal judge Wednesday struck down Kentucky’s ban on recognizing valid same-sex marriages performed in other states, saying it violates the U.S. Constitution’s guarantee of equal protection under the law.
U.S. District Judge John G. Heyburn II joined nine other federal and state courts in invalidating such bans. Ruling in a suit brought by four gay and lesbian couples, Heyburn said that while “religious beliefs ... are vital to the fabric of society ... assigning a religious or traditional rationale for a law does not make it constitutional when that law discriminates against a class of people without other reasons.”
Heyburn said “it is clear that Kentucky’s laws treat gay and lesbian persons differently in a way that demeans them.”
