Last time, we spoke about the importance of framing the case through the Questions Presented. I argued that despite some concern, the two questions posed in the Supreme Court’s order do not indicate that the justices are looking for a way out. They are ready to rule. Before we discuss the substance on which the justices will rule, let’s review the four cases that will decide the marriage equality question.
This matters because not all cases are fungible. Some come with better facts, others come with messy complications; some come with sympathetic plaintiffs, others have unfortunate optics. Especially when it comes to appellate review, the record on appeal can even tilt the outcome of the case. Plus, the cases are fun to talk about at nerdy cocktail parties.
Bourke v. Beshear is the Kentucky case and it was one of the earlier (though not the earliest) post-Windsor pro-equality decisions from a federal district court. It is about both the right to have a valid out-of-state marriage recognized in a home state and Kentucky’s own in-state ban. The judge, the Honorable John G. Heyburn, relied heavily on Windsor and found that Kentucky’s marriage laws discriminated against gay persons in violation of the Equal Protection Clause as applied to the states. Using rational basis review — the lowest form of scrutiny that only requires a rational connection between a law and a legitimate government objective — the court said there was no rational reason to treat gays this way. He struck down the anti-recognition law.