Andrew Wolfson

@adwolfson

In an extraordinary public event Thursday before hundreds of lawyers, the federal judge who threw out Kentucky's ban on gay marriage debated the conservative activist who put it on the ballot.

With Senior U.S. District Judge John G. Heyburn sitting by his side, the Family Foundation of Kentucky's Martin Cothran denounced "unelected judges" who have ignored "all of recorded history" and hid "moral judgments in procedure" as they threw out gay-marriage bans enacted by state legislatures and the voters.

Heyburn responded by giving Cothran a history and civics lesson: The Founding Fathers assigned the federal judiciary the duty of protecting the minority from the tyranny of the majority, he said, and specifically decided they shouldn't be elected.

"I hate that term is thrown around as though it is some kind of pejorative missile," he said of the "unelected judge" label.

Turning to Cothran, he said, "You seem to have a problem with me doing my job."

The event, sponsored by the Women Lawyers Association of Jefferson County at the Ice House in downtown Louisville, was civil but marked by several spirited exchanges — and applause for Heyburn.

The discussion was arranged before last week's decision by the U.S. Circuit Court of Appeals reversing Heyburn's rulings and upholding same-sex marriage bans in Kentucky and three other states.

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Federal judges usually don't discuss pending cases, but Heyburn said in an email that he thought the event would be "a good forum to discuss issues of interest and further public understanding of the judiciary's role in them."

The women lawyers group promoted it as a debate, while Heyburn said he considered it a discussion.

Cothran this year denounced Heyburn's rulings, charging that he had "declared martial law on marriage policy in Kentucky."

A senior policy analyst for the Lexington-based group, and a non-lawyer, Cothran bemoaned that judges rely on legal tradition — precedents — yet reject tradition when it is cited by gay marriage foes and other conservatives.

"Why are judges beholden to follow tradition but the rest of us can't?" he asked.

He noted that Kentucky's 2004 constitutional amendment saying marriage is only between a man and a women was enacted by the greatest majority of votes of any amendment before or since — and is still supported by the majority of Kentuckians, according to a recent Bluegrass Poll.

Heyburn responded that "history is littered with traditions that we have later decided weren't very good ones."

"Without judges," he said, "who knows how long would it have taken for the state of Connecticut to decide it couldn't deny contraceptives to women? How long would South Carolina have waited before it did away with segregated schools?"

Sometimes change is too gradual, he said, and federal judges have to step in.

Heyburn also dismissed Cothran's assertions that "judicial activists" were behind the rulings of 30 federal judges who over the past year have found gay marriage bans unconstitutional. Heyburn, who was nominated by Republican President George H.W. Bush, noted that the opinions were issued by Republican and Democrat appointees in all parts of the country.

" 'Judicial activist' is a code word for a decision you disagree with," he said.

Citing the constitutional guarantee of equal protection under the law, Heyburn in February ruled that Kentucky must recognize gay marriages performed in other states and in July that it must allow same-sex marriages within its borders. He stayed the rulings pending Gov. Steve Beshear's appeal.

The most emotionally charged moment came during a question period when a lawyer who identified herself as a lesbian asked Cothran how he could argue for denying her and her partner, "a responsible, tax-paying loving couple," the right to be legally married.

Cothran said the legislature, rather than the courts, has the right to make that decision, to which Heyburn said: "You fault the procedure, but procedure is how we create justice."

The judge also said nobody loses when gays and lesbians are allowed to marry. Children have a better chance of being adopted by a loving parent and traditional marriages are not diminished, he said.

Both speakers agreed that the fate of gay marriage will be determined by the Supreme Court and likely turn on the vote of a single swing justice, Anthony Kennedy.

Heyburn said that "as far as society is concerned," the momentum toward gay marriage is irreversible.

"In 10 years," he said, "everybody is going to wonder what the fuss is about."

Reporter Andrew Wolfson can be reached at (502) 582-7189