In the 23rd consecutive pro-equality ruling from a federal court since the Supreme Court's decision in United States v. Windsor, Judge John G. Heyburn, a President George H.W. Bush appointee at the recommendation of now-Senate Minority Leader Mitch McConnell, struck down Kentucky's ban on gay couples marrying. Those of us following the situation in Kentucky knew this was coming: Judge Heyburn had previously ruled that Kentucky had to recognize the marriages of same-sex couples performed out of state. It was a small step to invalidate Kentucky's own ban.
The opinion in the case, aptly captioned Love v. Beshear, reviews much of the ground covered by the 22 rulings that preceded it. It also departs from the past by, in particular, both relying on Windsor and narrowing it. It explicitly declines to take the route preferred by the Tenth Circuit Court of Appeals in Kitchen v. Herbet, which was to find Utah's ban unconstitutional as a violation of a fundamental due process right, and instead relies on the Equal Protection Clause. Judge Heyburn concluded that Windsor was an equal protection ruling, not a due process one. The confusion stems from the lack of clarity in Justice Kennedy's opinion. The result is the same: the ban is unconstitutional.
AFTER THE JUMP, I review in detail Judge Heyburn's interpretation of Windsor and show how it is different than many of the cases that have come before it in the post-Windsor world.