Judge Heyburn, Ky gay marriage judge, dies

U.S. Senior District Judge John G. Heyburn II, a Republican who carved an independent and progressive path in three decades on the federal bench, upholding school desegregation and striking down laws that forbade gay marriage, died Wednesday, according to U.S. District Court clerk Vanessa Armstrong.

He was 66 and had battled liver cancer.

Heyburn was nominated to the bench in 1992 by President George H. W. Bush at the recommendation of Sen. Mitch McConnell but hardly followed in the conservative senator's footsteps.

In two of his last major opinions, he struck down Kentucky's constitutional amendment that barred same-sex marriage within Kentucky and the recognition of same-sex marriages performed legally in other states, saying they violated the right to equal protection under the law by treating gays and lesbians "differently in a way that demeans them."

While acknowledging that gay marriage clashes with the religious and moral values of many Kentuckians, Heyburn wrote in 2014 that the "beauty of our Constitution is that it accommodates our individual faith definitions of marriage while preventing the government from unlawfully treating us differently."

His decisions were reversed by a federal appeals court but may be upheld by the Supreme Court, which heard arguments Tuesday in same-sex marriage cases from Kentucky and three other states later.

Defending his decision later in a public debate with anti-gay marriage activist Martin Cothran, Heyburn said that judges sometimes must rule against what was once accepted tradition.

"History is littered with traditions that we have later decided weren't very good ones," he said. "Without judges, 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?"

Heyburn, whose great-grandfather built the office tower that bears the family's name and whose father founded the law firm Brown Todd & Heyburn, often defied his patrician roots.

Handsome, ruddy-faced, gracious and friendly, Heyburn, who stood 6 foot 3 and was a champion miler at Harvard and a skilled golfer, enjoyed enormous respect from lawyers and litigants.

Longtime Jefferson County Attorney J. Bruce Miller, who narrowly defeated Heyburn to hang on to that office in 1981, said once that "I have had cases before 38 federal judges over the years and none of them could have held his golf bag."

Heyburn was not afraid to exercise his judicial powers but tried to do so carefully. Writing in an op-ed column in The Courier-Journal in 1998, he said the judiciary must be "activist enough to correct manifest injustices … yet restrained enough to allow democracy to work in the fullness of time."

He said too that federal judges "must be strong enough to ensure no one is above the law, yet not so full of ourselves to strike down laws which offend our own particular economic or moral views."

He wrote hundreds of decisions but may be best remembered for two on the use of race in deciding where students should attend school.

In 2000, he dissolved a 25-year-old desegregation decree in Jefferson County Public Schools, ending racial quotas that had prevented some black students from attending Central High School.

But four years later, he ruled that the district still had a compelling interest in maintaining racially integrated schools, upholding its policy of allowing no school to be more than 85 percent white or 50 percent black.

"Integrated schools, better academic performance, appreciation for our diverse heritage and stronger, more competitive public schools are consistent with central values and themes of American culture," he wrote, rejecting the claim of a parent who said her son was unconstitutionally denied a transfer to Bloom Elementary School because he was white.

He was reversed in 2007 by a sharply divided U.S. Supreme Court, which held that the Louisville and Seattle school districts, in classifying students by race, perpetuated unequal treatment. "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," Chief Justice John Roberts wrote for a 5-4 court.

Notwithstanding his moderate image, Heyburn could be tough.

In 2002 he sentenced state Highway Department bridge inspector Kevin Lee Earles to nearly three years more in prison than recommended by the government, saying he wanted to send a message to public officials about abusing the public trust.

In 1995, though, angering prosecutors, before the case even got to the jury, he dismissed fraud and money-laundering charges against L. Rogers Wells, a former state Finance Cabinet secretary, and J. David Smith, the national sales manager for GTECH, a contractor for the Kentucky Lottery, saying they never should have been indicted.

Deciding the fate of the scion of another powerful family — Andy Cherry, a wealthy businessman and son of late Humana co-founder Wendell Cherry — Heyburn declined to impose the 30-year term recommended by the government for the crimes of distributing and receiving child pornography but also rejected Cherry's plea for a minimum five-year sentence.

Heyburn instead imposed 10 years, saying child pornography is a "horrible epidemic" and disputed the idea "that it is an impersonal crime."

John Gilpin Heyburn II was born in 1948 in Boston, where his father was studying at Harvard Law School.

His great-grandfather, William Heyburn, was president of Belknap Hardware Co. and served on the old Louisville Board of Aldermen, while his father, Henry R. Heyburn, was a three-term state representative who narrowly lost a race for Congress in 1960.

But when his father died in 1991, Heyburn described him as a down-to-earth person who had lived in the same house in St. Matthews for 43 years.

"He was not a big, pretentious power broker," Heyburn said at the time. "He was a person who a lot of people loved. The most important thing about him is that he was a great father."

Heyburn graduated from Harvard, where he once ran a 4:10 mile. He ran in four Boston Marathons and later said that being a competitive runner had been a shaping force in his life. He cited the "physical and mental toughening required to compete under very stressful circumstances in all kinds of conditions."

He returned to Louisville for a few months after his graduation, volunteering at the Park DuValle Neighborhood Health Center, in part because he had heard about the work there of a young doctor, Harvey Sloane, a Democrat, who later served as Louisville's mayor and Jefferson County judge-executive.

Heyburn served in the U.S. Army Reserve for six years, eventually earning the rank of lieutenant, and earned his law degree from the University of Kentucky before joining his father's firm, now Frost Brown Todd, where he became a partner and an expert in construction contract law.

He said he got his baptism in politics in 1971 as a scheduler and advance man in Republican Tom Emberton's unsuccessful campaign for governor, during which Heyburn visited every Kentucky county. "It was a wonderful experience, other than the fact we lost."

During that campaign, though, he met McConnell, and later became part of his kitchen cabinet when he was elected county judge.

McConnell said Heyburn had a good sense of politics, although in 1981, when McConnell ran for re-election and Heyburn sought to ride his coattails in a race for county attorney, he lost to Miller, a three-term Democratic incumbent.

Miller later recalled how, after he won a patent trial in Heyburn's federal courtroom, he told Heyburn, "You've made a lot better judge than you would have a county attorney."

Heyburn did better behind the scenes. During a two-year term as county GOP chairman, in 1987-88, the party gained two seats in the General Assembly that had been held by Democrats.

The next year he ran for McConnell's old seat against the popular and better known Dave Armstrong, who had been commonwealth's attorney and attorney general. Heyburn went negative, saying "criminals had a field day" when Armstrong was the top local prosecutor.

But defense lawyers and judges, including Circuit Judge Rush Nicholson, known for being tough on criminal defendants, disputed that. "Anybody who would say Armstrong was soft on crime should have their head examined," he said.

Despite running "one of the most carefully planned, professionally advised races ever run for local office in Kentucky," as Courier-Journal political reporter Al Cross put it, Heyburn was trounced.

He helped catapult McConnell to a second term in the U.S. Senate in 1990 as his Jefferson County chairman and was considered the next year for an appointment as a federal magistrate judge. But he was passed over, in part because of his membership in the then-all white Louisville Country Club.

He resigned and won the nomination for the lifetime appointment as federal judge in 1992. He was later re-admitted to the club when his wife, Dr. Martha Keeney Heyburn, an ophthalmologist, applied for her own membership.

"I am not going to tell her how to run her life," Heyburn said at the time. "She is not my appendage."

On the bench, Heyburn won national attention —and eventually important appointments — for his case management, legal acumen and temperament.

Chief Justice William Rehnquist named him in 1994 to the U.S. Judicial Conference's budget committee, which Heyburn later chaired; in that capacity, he helped persuade Congress to award the federal judiciary a $4 billion budget.

In 2007, Chief Justice Roberts appointed him to head a national panel of seven judges that decides where to assign cases when thousands of suits are filed around the country against a single defendant in litigation over defective products, air disasters, hotel fires and the like.

The seven-year appointment — considered the equivalent of a cabinet-level appointment in the executive branch — gave Heyburn enormous influence over cases often involving billions of dollars.

In controversial cases in his own courtroom, Heyburn invalidated Louisville's adult-entertainment ordinance, which included a requirement that dancers stay three feet away from customers; fined the Louisville Metro Air Pollution Control District $100,000 for illegally ending motor-vehicle emissions testing without federal approval; and barred a self-professed Ku Klux Klan grand dragon from wearing his hood and robes at trial. The defendant was convicted of threatening the life of a federal agent and to spray a state office with gunfire. Heyburn sentenced him to 51 months in prison.

In an important First Amendment case in 2004, he ruled that jockeys could wear both charitable and commercial logos on their riding pants.

In abortion cases, Heyburn dealt victories to both sides. In one decision, he ruled that Kentucky's Partial Birth Abortion Act was unconstitutional because it banned procedures protected by the 1973 Supreme Court decision Roe v. Wade. Yet to the chagrin of abortion-rights activists, he upheld the state's ``informed consent'' law that requires women seeking abortions to wait 24 hours so they may be counseled about the procedure and offered state pamphlets about alternatives.

When Heyburn struck down Kentucky's gay marriage ban, his mentor, McConnell was criticized by conservatives for recommending his appointment, and McConnell criticized the ruling.

"Only the people of Kentucky, through the legislative process, should have the authority to change the law, not the courts," McConnell said.

Heyburn rejected the notion that bruising battles over the confirmation of judicial candidates, including Supreme Court justices, was unseemly.

"In truth," he wrote in 2007 after the battle over Roberts' appointment, "the ability of our democracy to accommodate conflict shows its strength. … Our country matured out of the founders' conflict debate and ultimately their mutual respect.

"Is the Constitution a living and enduring document?" Heyburn asked. "You bet it is, and these hearings are living proof of it."

Attorney John David Dyche, who worked for Heyburn as an associate at what was then Brown Todd & Heyburn, said he was so inclined toward "what was fair and just" that he never seemed to "truly love the role of paid advocate as some do." But Dyche said that "inclination and natural temperament well-suited him for judging."

Dyche said he was so tall and walked so fast it was hard to keep up with him on the way to court. In firm basketball games, he was a tenacious rebounder, and was scrupulously fair on foul calls — but a fierce competitor too.

Like his father, Heyburn was courteous, kind and diligent, Dyche said.

"The Heyburns are a form of American aristocracy, in the best sense of the word," he said. "They don't think they are better than anyone else, but they do have a high sense of duty, ethics, and responsibility."

Notwithstanding his affluent background — or perhaps because of it — he gave the benefit of the doubt to criminal defendants who went through hard times growing up," said criminal defense lawyer Scott C. Cox.

"He was much less tolerant if you came from a good background," Cox said.

Cox, a former federal prosecutor, said when Heyburn was appointed, the defense bar expected he would be a "doctrinaire conservative" because he'd been appointed by a Republican president. But Cox said he turned out to be anything but.

"He was universally respected for making every decision in every case based on the merits of that case," Cox said. "He was the furthest thing from a judge you could count on for ruling a certain way for ideological reasons."

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