Justice Scalia was prescient when he noted that the other shoe would soon be dropping when the Supreme Court invalidated the federal Defense of Marriage Act by judicial determination last summer in the Windsor case. Judge John Heyburn, a federal Judge in Kentucky's Western District dropped the shoe loudly by ruling Kentucky must recognize same sex marriages from other states (and, apparently, Canada, although he never really addressed this directly). While gay marriage advocates will see this as a huge victory, particularly in a bible-belt state like Kentucky, there may be another shoe ultimately dropping here.
Judge Heyburn's decision essentially says that after Windsor he really doesn't have an option. Frankly, he went out of his way to explain how courts make decisions and goes through the history of the Supreme Court's constitutional decision making in this area since the Loving case struck down bans on interracial marriage in the late 60's. In trying to read between the lines, I got the distinct impression Judge Heyburn was not impressed with Justice Kennedy's reasoning, but ultimately determined that equal protection of the law demands the decision he made, regardless of how Justice Kennedy handled himself.
What is interesting is the "animus" argument upon which Justice Kennedy based his opinion and to which Judge Heyburn gives a quick wave. Justice Kennedy spent a great deal of time in his opinion arguing that laws which are passed solely based on animus that demeans others cannot stand constitutional muster. Where this will get interesting is in equal protection claims Christians may be able to make along the same lines when arguing against discrimination laws, especially those enforced by Human Rights Commissions across the country. Let me explain.
Most (probably all) states have Human Rights Commissions which are granted both executive (enforcement) and judicial (trial) authority over discrimination claims. In other words, these commissions act as both prosecutor and judge of claims brought before them. While I personally think these commissions are utterly unconstitutional, that is for another day. In recent well publicized cases, these commissions have fined a baker out of existence in Oregon and fined a New Mexico wedding photographer - both for discriminating against gay marriage (not homosexuals generally, just gay marriage in particular). These anti-discrimination laws, while neutral on their face, actually discriminate against Christians since they force Christians to associate with causes and views (not people) with which they disagree because of their sincerely held religious beliefs. The affect of these laws is to demean the beliefs Christians hold regarding homosexuality - namely that it is a sin - and any requirement that has the effect of forcing Christians to affirmatively support activities which violate those clearly held beliefs violates equal protection of the law. How wide this net can be cast is another question, but the underlying legal rationale has been laid. Note that none of the establishments which have been harassed by these "Human Rights" Commissions have ever been accused of discriminating against homosexuals in a general sense - only in very specific instances which would have had the effect of appearing to be a public acceptance of homosexuality.
In my view, the rationale Justice Kennedy used in Windsor was flimsy and weak - he didn't need to get into discussion about "animus against gays" and "demeaning" people. These are not legal concepts, but social concepts better left for the court of public opinion. The reality is gay marriage will soon be the law of the land across the United States - it is a foregone conclusion. Christians who disagree better be prepared.
However, what is interesting is that Justice Kennedy may have created a back door which he never intended. Regardless, I don't think it will be long be before Christian legal practitioners begin making the equal protection argument suggested above. What then will the intelligentsia who so ardently support gay marriage say? Let me make another prediction: oddly enough, they'll make arguments that will sound very similar to those made by gay marriage opponents right now - they'll argue about how society accepts gay marriage and so forth. What they won't be able to explain, however, not with any intellectual or moral integrity, is why Christians who don't wish to be forced to support such beliefs must be required to do so. What rational basis will be alleged? Will Justice Kennedy then swoop in and, again, point out that animus which demeans someone cannot be tolerated? Is it not demeaning to Christian belief to have to be forced to support actions which utterly denigrate those beliefs?
I am fully aware that gay marriage advocates will try to argue that somehow this is an apples to oranges comparison. But is it? Upon what rational basis can gay marriage advocates claim their belief they are entitled to be married is superior to the Christian belief they should not? If everyone is entitled to equal protection, then everyone is entitled to equal protection.
Yes, the other shoe is dropping. I just wonder if gay marriage advocates are ready for where that shoe might just end up dropping.
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