Once again, a federal judge nodded to U.S. Supreme Court Justice Antonin Scalia in striking down part of a state's ban on same-sex marriage.
In ruling Wednesday that Kentucky must recognize out-of-state gay marriages, U.S. District Judge John G. Heyburn II referenced Scalia's dissents in the Court's decisions to overturn the federal Defense of Marriage Act and strike down state laws that ban sodomy.
It wasn't as big a rhetorical bear hug as the outspoken conservative justice received in December from the federal judge who overturned Utah's prohibition on same-sex marriage, but it was further evidence of Scalia's prescience when he declared that the DOMA decision would inevitably undercut state laws on marriage.
Heyburn observed that the Court's decision to overturn DOMA laid the foundation for his decision Wednesday to invalidate part of a Kentucky's law that prohibited the recognition of gay marriages performed in other states. He then name-checked Scalia and his similar observations in his dissent in the DOMA case, Windsor v. United States.
"Indeed, Justice Scalia stated that Windsor indicated the way the Supreme Court would view future cases involving same-sex marriage 'beyond mistaking,'" he wrote.
Heyburn also seemed to side, at least in part, with Scalia's criticism of the Court's application of rational basis review when deciding if DOMA violated the plaintiffs' equal protection rights.
The full opinion is below.
Kentucky Same-Sex Marriage Ruling by tpmdocs