Archive for the ‘Constitution’ Category

First freedom isn’t a secondary human right

First published July 11, 2015

Since the U.S. Supreme Court’s ruling in Obergefell vs. Hodges, there has been a growing chorus calling for the resignation or removal of county officials in Kentucky who cannot, for reasons of faith, support same-sex marriage.

On Thursday, Gov. Steve Beshear joined those voices, telling Casey County Clerk Casey Davis that he should issue marriage licenses to all who may now marry or step aside — in which case the governor would appoint someone to fill his position until there is another election.

While Davis’ grandstanding approach has gotten the most attention, 57 county clerks last week signed a letter asking the governor to call a special session to address the problem of how to protect their religious liberty while also complying with the court’s ruling, which made gay marriage legal in every state. This was after Beshear had already turned down such a request by Speaker of the House Greg Stumbo, a leader of the governor’s own party.

Beshear said the issue can wait until 2016. Meanwhile, nearly half the county clerks in the state, who have until now faithfully executed their responsibilities as public officials, are faced with the choice of either participating in something that violates their consciences or giving up their careers and turning their backs on those who elected them, in most cases knowing they were people of faith.

It is a conundrum the justices created when they decided by a 5-4 margin to create a new civil right by changing the definition of marriage that has existed since the beginning of civilization. It comes as no surprise, yet it comes with questions that must be addressed regarding the place of faith in a nation founded on Judeo-Christian ethics and religious freedom as well as on Enlightenment ideas about the nature of humanity and liberty.

Although our nation’s founders were men of diverse views — from Thomas Paine, a Deist who despised Christianity, to Patrick Henry, who was a devout Christian — they were able to agree that all of us are “endowed by our Creator with certain unalienable rights …”

In other words, all rights come from God, and so does all political authority, according to the Bible in Romans 13:1. Those who oppose same-sex marriage make the case that God cannot grant a right that is contrary to his perfect order. And in Matthew 19:4-6, Jesus — who was the Word of God incarnated (John 1:1) — teaches that God was the author of marriage from the beginning. Quoting the ancient Jewish scriptures (Genesis 2:24), Christ said that “a man shall leave his father and mother and be joined to his wife, and the two shall become one flesh.”

The Bible is also unambiguous in describing homoerotic relationships as sinful, although I believe we are guilty of the ultimate sin of pride if we believe those relationships are worse than other sins or that any of us is without sin.

Conservatives conveniently forget that the sin of Sodom, according to the prophet Ezekiel, was that the city’s people had become “overfed and unconcerned” and “did not help the poor and needy.”

That’s something we might want to keep in mind when we’re stuffing ourselves full of fried chicken and potato salad at a church social and grousing about our taxes paying for food for the children of the working poor.

As the United States becomes an increasingly secular society, more Americans conflate Thomas Jefferson’s limited idea of the idea of separation of church and state with the broader postmodern notion that religious beliefs have no place in the public sphere. Not only is that not possible, but if it were, it would be discriminatory.

“Efforts to craft a public square from which religious conversation is absent, no matter how thoughtfully worked out, will always in the end say to those of organized religion that they alone, unlike everybody else, must enter public dialogue only after leaving behind that part of themselves that they may consider the most vital,” said Stephen L. Carter of Yale, a prominent constitutional scholar.

And John Adams, who played an eminent role when this nation was conceived in liberty, wrote: “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”

At the heart of Christianity is the commandment that we must “love our neighbors as ourselves,” and there is no caveat that excepts our LGBT neighbors. And at the core of American democracy is the principle that all of us “are created equal” and endowed by the Creator with human rights.

In balancing LGBT rights with religious liberty, though, we should not forget that the First Amendment right of religious freedom is first for a reason.

Hyperbole and hysteria in Indiana

First published Saturday, April 4, 2015

ABC 57 in South Bend, Ind., reported April 1 that a high school coach was suspended after she tweeted that she was going to burn down Memories Pizza in nearby Walkerton for refusing to cater gay weddings.

Walkerton’s police chief said his department had investigated the threat and informed prosecutors, and he asked that folks follow the law — no fooling.

Tuesday, the TV station aired an interview with Memories manager Crystal O’ Connor and her father, Kevin, about Gov. Mike Pence’s signing Indiana’s Religious Freedom Restoration Act. Crystal said that if the family were asked to provide pizza for a gay wedding, they would have to refuse based on their Christian beliefs.

Kevin O’ Connor said sexuality is a choice and that he chooses to be heterosexual.

To its credit, ABC 57 tacked on a footnote at the end of the story saying the family would not refuse a gay couple that came inside the restaurant to eat.

That’s a distinction most who are outraged about the law don’t make — between refusing to serve persons because of who they are and refusing to service events.

Some Christians believe that catering a same-sex wedding amounts to approval of, and participation in, something they consider sinful based on what the Bible says about homosexual acts.

Discrimination against persons is unconscionable and should be illegal. However, if the First Amendment guarantee of free exercise of religion means anything, refusal to participate in events that violate one’s conscience should be lawful.

According to Pence, Indiana’s new law doesn’t give anyone a license to discriminate, and he wants the legislature to amend the law to make that clear.

Indiana’s law, which takes effect July1, is almost identical to those in 20 other states, including Kentucky, and the federal Religious Freedom Restoration Act signed by President Bill Clinton in 1993. It differs from the U.S. law by defining persons to include churches and corporations, and providing a defense in civil actions involving private parties.

Basically, Indiana’s states that “a governmental entity may not substantially burden a person’s exercise of religion” except in furthering “a compelling governmental interest,” and if it must impose a burden, it must use “the least restrictive means.”

Secularists are outraged over the refusal of a religious minority to accept their redefinition of the sacrament of marriage and are willing to discriminate against anyone who does not adopt their view.

One state legislator in Oklahoma offered a bill to brand Christian businesses that want to opt out of promoting same-sex relationships so that others might shun them and destroy their livelihood.

It seems the only acceptable bigotry today is against traditional Christians.

One reason is that most don’t know what traditional Christianity is. Many think the free exercise of religion means only that people are free to worship inside their churches or synagogues on their own time, but should keep their religious beliefs to themselves. They want to force Christians into the closet.

Rod Dreher, senior editor of The American Conservative, wrote that orthodox Christians should retreat to a redoubt they can defend.

“If by ‘Christianity’ we mean the philosophical and cultural framework setting the broad terms for engagement in American public life, Christianity is dead, and we Christians have killed it,” he wrote. “We have allowed our children to be catechized by the culture and have produced an anesthetizing religion suited for little more than being a chaplaincy to the liberal individualistic order.”

I strongly disagree. Being a Christian is personal, but not private. It is a 24/7 thing, not something reserved for an hour on Sunday mornings. And if you believe in Christ’s Great Commission, as I do, then it isn’t something one keeps to oneself.

I also believe in the Great Commandment, which is that we should love God foremost and love our neighbors no less than ourselves. There is no caveat exempting gay or agnostic neighbors.

I wouldn’t discriminate against anyone, but I wouldn’t tell others they must participate in things they don’t feel right about.

In a pluralistic society, religious liberty must not only be tolerated but respected.

Heritage of hate and the changing South

One of oddest mental images I have from my days as a weekly newspaper editor in Nicholasville is of a little black girl waving a Confederate battle flag from atop a parade float.

The Chamber of Commerce had prohibited displays of the rebel flag in the Jessamine Jamboree, and I had written a commentary supporting their decision.

The editorial had resulted in angry letters to the editor from the Sons of Confederate Veterans, who vowed to fly their flag in defiance of the order.

The Stars and Bars, they said, was a symbol of “heritage, not hate.” I argued that it belonged in a museum, not at an event intended to bring people together.

On the south end of Main Street, most African-American residents stood in stony silence while watching the display go by, and a few hurled epithets. On the north end, someone joked as I was taking pictures that I shouldn’t get too close to the float. I laughed, but a rangy figure who overheard leaned close and told me I’d be safer with the heritage group than surrounded by his friends.


Members of the National Socialists Movement and the White Knights of the Klu Klux Klan salute to start a rally Saturday April 21, 2012, at the Capitol in Frankfort, Ky. At least 70 law enforcement officers were present to control a crowd of 150 to 200 demonstrators when a group of neo-Nazis and Ku Klux Klan members rallied against illegal immigration on the steps of the Kentucky Capitol. (AP Photo/John Flavell)

“The past is never dead. It is not even past,” William Faulkner wrote.  That has been true of race relations in the South, but reactions last week to the racially motivated murders of nine parishioners at Emanuel African Methodist Episcopal Church in Charleston, S.C., were astounding.

Since Gov. Nikki Haley and other leaders called for the removal of the Confederate battle flag from the statehouse grounds in Charleston, a chorus of voices across the country has demanded the removal of the flag and other symbols of the Confederacy, including the statue of Jefferson Davis from the Kentucky Capitol.

Even more encouraging is that Walmart, eBay and other retailers have said they will no longer sell the flags.

Once again, we’re hearing from resisters that the flag represents “heritage, not hate.” That may be true for some, but there is also a heritage of hate associated with the flag that is seared into our national consciousness and with which we must reckon.

I have referred to the Stars and Bars as the Confederate battle flag because it is not the official flag of the Confederacy that flew over capitols during the Civil War. It is the flag of Gen. Robert E. Lee’s Army of Northern Virginia, which was revived 100 years after the Civil War as a symbol of white supremacy and defiance of civil rights. That is its legacy in the minds of many Americans.

Based on I know of Lee’s desire for reconciliation, if he were alive today, I think he would agree it’s time to retire it.


In Montgomery, Ala., the birthplace of the Confederate States of America, demonstrators Saturday protested a decision by Gov. Robert Bentley to remove the battle flag from a war memorial.

“Right now, this past week with everything that is going on, I feel very much like the Jews must have felt in the very beginning of the Nazi Germany takeover,” one protestor told the Associated Press. He added that “there is a concerted effort to wipe people like me out, to wipe out my heritage and to erase the truths of history.”

It’s outrageous that he would compare those who want to remove a stain from our past with Nazi Germany’s racist regime because America’s apartheid movement has included many who identify with that evil episode in the world’s history.

Here’s an example. Three years ago, when I worked for the AP in Frankfort, I covered a rally on the Capitol steps by neo-Nazis who were joined by a Ku Klux Klan group. The swastika and the Stars and Bars flew side by side.

About 200 counter-demonstrators heard white supremacists say they were not a hate group, but a civil rights group, yet the rhetoric was hateful.

While Nazis and Klansmen shouted, “God hates homosexuals,” Victoria King of Lawrenceburg held aloft a message of Christian love — a sign with words of a prayer attributed to St. Francis of Assisi: “Where there is darkness, let me sow light.”


The light of liberty cannot be forever hidden under a dark shroud.

Fifty years ago, the Rev. Martin Luther King Jr., led another rally on the steps of Alabama’s Capitol steps, not far from where another Montgomery memorial today celebrates a better legacy — that of the civil rights movement.

“The moral arc of the universe is long, but it bends toward justice,” King said.

It is well that we remember those words as we celebrate the birth of our republic this weekend. America has not always been the shining City on a Hill that our forebears envisioned, but it was and is the right vision, and we should expect nothing less.

Honestly, Abe Lincoln did not say that

Saturday, November 22, 2014

“The trouble with quotes on the Internet is that it’s difficult to discern whether or not they are genuine.” — Abraham Lincoln

This satirical “quotation” is one I recently posted on Facebook for laughs.

It’s a tribute to the sagacity of America’s greatest president that many of us want to give Lincoln credit for things he didn’t say when did say so much that is worth repeating.

I’m usually careful about verifying the authenticity of anything I read on the Internet, but a couple of weeks ago, I wasn’t careful enough.

In my Nov. 9 column, I wrote about what it means to be a “Lincoln Republican.” I included this quote attributed to Lincoln about the dangers to democracy caused by the stratification of wealth:

“I see in the near future a crisis approaching that unnerves me and causes me to tremble for the safety of my country. … corporations have been enthroned, and an era of corruption in high places will follow, and the money power of the country will endeavor to prolong its reign by working upon the prejudices of the people until all wealth is aggregated in a few hands and the Republic is destroyed.”

I attempted to verify its authenticity and learned it was included in a letter to a Col. William F. Elkins on Nov. 21, 1864.

It reflected Heather Cox Richardson’s description of Lincoln’s views in her history of the Republican Party, “To Make Men Free.” She describes the Kentucky of Lincoln’s youth as a place where the slaveholding aristocracy made it hard for men like his father to get ahead because the wealthy owned the best land and controlled the government and its laws.

In 1816, the Lincolns moved north of the Ohio River, where the Northwest Ordinance of 1787 had established a land of opportunity by prohibiting slavery and primogeniture, the tradition of a landowner bequeathing all of his property to the eldest son to keep large estates intact. The Republican Party was later founded there on such egalitarian ideals.

The quote also mirrored Lincoln’s speech of Dec. 1, 1861, in which he weighed the importance of labor and capital: “Labor is prior to and independent of capital,” Lincoln said. “Capital is only the fruit of labor, and could never have existed if labor had not first existed. Labor is the superior of capital, and deserves much the higher consideration.”

It turns out, however, that the wealth quote was a fabrication, though an old one.

Tom Hall, a history enthusiast, raised the red flag. In an email the day after my Sunday column, he said the quote seemed “a little too prescient, as if old Abe could see 30 or so years into the future to the day of the big railroads, Standard Oil and the Carnegie steel mills. In other words, this smells like the ‘quote’ is an Internet fraud, and you fell for it.”

Did I ever.

This is what, a website that researches information on the Internet to determine its veracity, said about the supposed letter of 1864: “These words did not originate with Abraham Lincoln … they appear in none of his collected writings or speeches, and they did not surface until more than 20 years after his death (and were immediately denounced as a ‘bold, unflushing forgery’ by John Nicolay, Lincoln’s private secretary). This spurious Lincoln warning gained currency during the 1896 presidential election season (when economic policy, particularly the USA’s adherence to the gold standard, was the major campaign issue), and ever since then it has been cited and quoted by innumerable journalists, clergymen, congressmen, and compilers of encyclopedias.

So I’m not the first journalist who fell for it. But that doesn’t make it less inexcusable.

I owe you an apology for being so easily taken in, and will be more diligent next time.

First freedom trumps other rights

Saturday, July 5, 2014 at 11:55 am

The United States Supreme Court’s ruling last week in Burwell vs. Hobby Lobby isn’t about whether women have a right to birth control. They do.

It also isn’t about whether employers may discriminate against workers who don’t share their religious beliefs. They may not.

What it’s about is simple, really. By a majority of one, the justices said family businesses don’t have to pay for contraceptives for employees if it violates their moral convictions.

Justice Samuel Alito, writing for the majority, made it clear the decision has nothing to do with other obligations employers have under the Patient Protection and Affordable Care Act, and it does not allow companies to deny coverage for other procedures such as blood transfusions or vaccinations. He also said that if the government wants to provide free contraceptives, there are other ways to do so.

Hobby Lobby Stores Inc., owned by David and Barbara Green of Oklahoma City and their family, and Conestoga Wood Specialties Corp. of East Earl, Pa., owned by a Mennonite family, had no objection to 16 of the 20 contraceptives covered under the federal mandate. But they balked at paying for two drugs they say are drugs that induce abortions, Ella and Plan B, as well as two intrauterine devices that prevent fertilized eggs from attaching themselves to the uterus. Proponents of these “emergency contraceptives” say they work by delaying ovulation or making it harder for the sperm to reach the egg.

It doesn’t matter which side is correct because the court’s ruling applies to all methods of birth control. It would protect “closely held” Catholic corporations from paying for birth control pills, for instance.

Despite the ruling’s narrow scope and the court’s laudable attempt to balance employees’ interests with the rights of business owners, the outcry from feminists and pro-choice activists was shrill. House Minority Leader Nancy Pelosi called the decision “outrageous” and a “dangerous precedent.” One of my Facebook friends said women need “protection from religious fanatics.” I suppose her definition of a religious fanatic is anyone who puts faith first.

Barbara Green underscored what religious freedom means to evangelical Christians in her response to the ruling. “Today the nation’s highest court has reaffirmed the vital importance of religious liberty as one of our country’s highest principles,” she said, calling the decision “a victory, not just for our family business, but for all who seek to live out their faith.”

That’s an important distinction. When I asked Sen. Mitch McConnell about the ruling last week, he said liberals believe the First Amendment guarantees Americans the freedom to worship; conservatives believe it means the right to “practice their faith.”

Conservatives have the better understanding of the Bible.

Being a real Christian means your life is no longer your own, you have surrendered it to Christ, who guides everything you do. You know he is Lord of all, and in the fullness of time, he will bring everything under his authority. Jesus told his followers faith isn’t something they may keep to themselves if they want any part of his kingdom.

“Our religious convictions aren’t reduced to mere opinions we hide in our hearts and in our hymns. Our religious convictions inform the way we live,” said Russell Moore, president of the Southern Baptist Ethics and Religious Liberty Commission. But this isn’t only a Protestant understanding. Pope Francis said, “No one can demand that religion should be relegated to the inner sanctum of personal life, without influence on societal and national life.”

It is this freedom to practice one’s faith that is protected by the Religious Freedom Restoration Act of 1993, upon which the justices based their decision. It bars government from unduly burdening an individual’s free exercise of religion unless it has a compelling interest; and if it must intervene, it must do so in the least restrictive and intrusive way.

The court did not have to decide the case on constitutional grounds, but the Constitution informs the statute. Secularists think freedom of religion must take a back seat to every other right, real or imagined, but there is a reason the founders of our republic made the First Amendment, and specifically the freedom of religion, first — it is because it is first in importance.

Prayer doesn’t have to be private

Saturday, May 10, 2014

Forty years later, I can still hear Tom Williams’ deep cadences as he opened the Irvine City Council meetings with prayer.

Everywhere I’ve worked as a reporter, with the notable exception of Nelson County, I’ve heard ministers and local officials open public meetings with entreaties to the Almighty, usually ending with, “in Jesus’ name, amen.”

I can’t recall ever hearing a complaint about the practice in local government, but I know Democratic Sen. Kathy Stein of Lexington, who is Jewish, has objected to opening legislative sessions with invocations.

When I covered the legislature for the AP in 2012, Catholic Archbishop Joseph Kurtz of Louisville once gave an invocation. And Baptist preacher Hershael York prayed in Hebrew. Although I never heard a rabbi pray in the Capitol, the most beautiful meditation I heard at Republican Sen. Jimmy Higdon’s prayer breakfast that year was given by a rabbi. I led with it.

It is common practice, not only in Kentucky, but also around the country, for government bodies to open their sessions with invocations. Last week, the Supreme Court of the United States ruled 5-4 that prayers before public meetings do not violate First Amendment requirements regarding separation of church and state.

Justice Anthony Kennedy, writing for the majority, stated: “Willing participation in civic affairs can be consistent” with brief acknowledgement of “belief in a higher power.” In Greece, N.Y., the prayers of the town board serve a ceremonial purpose and thus “are not an unconstitutional establishment of religion,” he concluded.

The opinion also makes it clear that prayers do not need to be nonsectarian to be constitutional.

I think the justices got it right, and I’m pleased they ruled the way they did.

Prayers before public meetings differ from prayers in public schools, where attendance is mandatory and children are told what to do by their elders. Still, governments should practice diversity in choosing the prayer leaders, and the prayers should be broad enough that they don’t denigrate anyone else’s religion.

Jews, Christians and Muslims all worship the same God, and asking for his guidance shouldn’t offend anyone.

As a society, we’ve gone so far in trying to avoid violating the establishment-of-religion clause that we ignore the more basic constitutional and God-given rights of free speech and freedom of faith.

Many mayors and county judges choose to open meetings with prayer because they acknowledge the biblical truth expressed by St. Paul in his letter to the church of Rome: “Let everyone be subject to the governing authorities, for there is no authority except that which God has established.”

One can choose not to believe that everything is under God’s authority (or even that there is a God), but that doesn’t make it less true. Secularists say, “What’s true for you may not be true for me,” but they’re wrong. Truth is truth. It is absolute and eternal.

We should respect the rights of others to have differing beliefs, but we shouldn’t require Christians to keep their beliefs to themselves. That’s something Christ explicitly told his followers they should never do.

Christian faith isn’t personal and private. It’s communal. One cannot be a Christian on one’s own, and true believers don’t separate their spiritual values from their daily lives.

That doesn’t mean a disciple should be a “Bible thumper.” The fruits of the Spirit include kindness, gentleness, patience and self-control. If any Christian beats you about the head with a Bible, figuratively or literally, he isn’t a mature Christian.

But wearing a cross, using the G-word in casual conversation (in a way that isn’t blasphemous), offering to pray for a friend or coworker who’s going through some difficulty, or bowing one’s head during an invocation isn’t forcing one’s faith on anyone else. It’s a voluntary exercise of the most fundamental freedom on which our republic was founded.


The majority isn’t always right

Saturday, February 1, 2014

State Sen. Jimmy Higdon got a surprise recently when he got the first results back from a survey he had published in The Kentucky Standard and other newspapers in his 14th District, which includes Nelson, Marion, Spencer and Casey counties and a little part of Jefferson.

The Lebanon Republican talked with me about the survey when I met him at Tom Pig’s one Saturday last month, a few days after the start of the 2014 legislative session.

The survey showed that more than two-thirds said they were against a statewide smoking ban in Kentucky, and a similar majority favored making medicinal marijuana legal in the state. It also showed that nearly seven in 10 respondents thought some felony records should be expunged, or made to disappear.

Higdon admitted his poll wasn’t “scientific.” That is, it wasn’t a random sampling of a large enough number to have a low margin of error.

He found it interesting that it was contrary to other polling on the issue.

In October and November 2013, the Foundation for a Healthy Kentucky surveyed 1,551 adults in a study with a margin of error of plus or minus 2.3 percent. It showed that 65 percent — including 38 percent of smokers — want smoking banned in public places.

The results provide support for House Bill 173, sponsored by Rep. Susan Westrom, a Lexington Democrat, and Rep. Julie Raque Adams, a Louisville Republican.

Recently, the issue was discussed on “Kentucky Tonight” with Bill Goodman. The guests were Dr. Shawn Jones and Ashli Watts (the wife of Nelson County Judge-Executive Dean Watts’ nephew) of the Smoke-Free Kentucky Coalition, Jim Waters of the Bluegrass Institute for Public Policy Solutions and Ken Moellman, spokesman for Northern Kentucky Choice.

Jones emphasized that secondhand smoke is a health hazard that should be regulated like any other occupational safety threat. Watts said a smoking ban is good for business. The Kentucky Chamber of Commerce overwhelmingly supports it. Waters and Moellman made the argument that a public smoking ban suppresses individual liberty.

But does it? Smokers have a right to smoke. They don’t have a right to smoke around people who are where they have a right to be and don’t want to be around it. And smokers don’t have a right to endanger the health of their coworkers.

Moellman said people who don’t want to be exposed to tobacco smoke can choose

businesses that don’t allow it. But in some small towns, people don’t have many options for eating out or for employment.

Whether or not the majority favors it, a public smoking ban is right.

On the other two issues Higdon mentioned, I’m cautious. I don’t have a problem with doctors prescribing marijuana to counter the side effects of chemotherapy or help AIDS patients, but I’m afraid that allowing it for any ailment will lead to abuse, as it has in California and other places. As for expunging felony records, I would want to know if a felon lived across the road from my elderly parents or my young niece. I think a better approach would be to seal, rather than remove, only Class D felony records that don’t involve violence or sex crimes, and only when the felon has served his time and the victim has no objection.

It’s important for legislators to consider public opinion, but they should keep in mind that the majority isn’t always right, and the people elected them to be well-informed deciders, not delegates.

Edmund Burke memorably expressed this when he told a group of British electors in 1774 that a representative owes his constituents “not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.”

They also must keep in mind, though, that Burke was not re-elected to Parliament.


Ruling doesn’t infringe on religious liberty

Saturday, February 15, 2014

Within hours of the decision by U.S. District Judge John G. Heyburn II that Kentucky law barring recognition of same-sex marriages is unconstitutional, the politicians started piling on.

It must be an election year.

Four couples, including Jim Meade and Luke Barlowe of Bardstown, sued the state, claiming that a 1998 statute and a 2004 state constitutional amendment invalidating same-sex marriages performed legally in other states violates the due process and equal protection clauses of the 14th Amendment.

Heyburn ruled in favor of the plaintiffs Wednesday, saying laws that “treat gay and lesbian couples differently in a way that demeans them” deny them equal protection under the Constitution.

The reactions were swift.

“Today’s ruling is an important step forward in the march toward recognition of all marriages under the law and full equality in our commonwealth,” said liberal Democratic Congressman John Yarmuth of Louisville.

Martin Cothran of the conservative Family Foundation denounced the decision.

“Kentucky marriage policy will now be dictated from places like Boston and San Francisco,” Cothran said. “This decision puts Kentucky voters on notice that if their reasons for defining marriage as between a man and a woman don’t correspond with the political ideology of liberal judges, their votes don’t count.”

Cothran said this despite the fact that Heyburn is a Louisville Republican who was appointed to the federal bench 22 years ago by President George H.W. Bush on the recommendation of a Louisville Republican, Sen. Mitch McConnell.

Remarks by McConnell and the candidates who want to deny him re-election to a sixth term and the chance to become Senate majority leader were more mystifying.

Calling himself a “traditionalist,” McConnell said he would “fight to make sure that Kentuckians define marriage as they see fit, and never have a definition forced on us by interests outside of our state.”

Matt Bevin, McConnell’s challenger for the Republican nomination, blamed the senator for promoting Heyburn, who once worked for McConnell, and accused the judge of “judicial activism.”

The Madison Project, a tea party fundraising group that’s backing Bevin, issued a press release saying that “a McConnell crony forces gay marriage in Kentucky.”

Most baffling was an ambiguous statement by Charly Norton, an aide to Kentucky Secretary of State Alison Lundergan Grimes, the presumptive Democratic nominee in the Senate race.

She told The Courier-Journal: “Alison has been married for seven years and has stated publicly that she wouldn’t want to deny other couples the opportunity to make that same commitment. She’s also made clear that while the Supreme Court has ruled that state sovereignty applies, churches should not be forced to recognize anything inconsistent with their teachings.”

But nothing in the judge’s decision would require that churches or other religious institutions recognize or perform same-sex marriages. That would be an unconstitutional infringement of religious freedom, he emphasized.

Heyburn wrote at length about the religious ramifications of his decision. Because recognition of same-sex marriage “clashes with many accepted norms in Kentucky — both in society and faith,” he said, he felt a “special obligation to answer some of those concerns.”

This is how he answered them:

“Our religious beliefs and societal traditions are vital to the fabric of society. Though each faith, minister and individual can define marriage for themselves, at issue here are laws that act outside that protected sphere. Once the government defines marriage and attaches benefits to that definition, it must do so constitutionally. It cannot impose a traditional or faith-based limitation upon a public right without a sufficient justification for it. Assigning a religious or traditional rationale for a law does not make it constitutional when that law discriminates against a class of people without other reasons.

“The beauty of our Constitution is that it accommodates our individual faith’s definition of marriage while preventing the government from unlawfully treating us differently. This is hardly surprising since it was written by people who came to America to find both freedom of religion and freedom from it.”

I’m a conservative traditionalist, and, as a Christian, I don’t think governments should force churches to perform same-sex marriages or individuals to approve of anything that violates their conscience. But Heyburn’s ruling doesn’t do any of those things. It simply states that under the Constitution, governments cannot deny persons legal rights that it affords others. It honors religious freedom as well as other civil rights and affirms the constitutional principles of due process and equal protection, and it doesn’t go beyond the question the court was asked to address.

In my layman’s opinion, Heyburn got it right.

Leading with the head and the heart

Uneasy lies the head that wears a crown.

Those words, spoken by the king in William Shakespeare’s “Henry IV,” are true of any leader, whose slightest miscalculation could cost him greatly.

Another of the Bard’s kings, Henry VI, said, “My crown is in my heart, not on my head …”

It takes a good head and a good heart, however, to be a good leader.

I’ve been covering a federal court case involving same-sex couples who are suing Kentucky to require its recognition of marriages performed legally in 17 other states.

Two of the plaintiffs, Jim Meade and Luke Barlowe, were married in Iowa in 2009, but it remains uncertain whether their marriage is valid in Kentucky. In 2004, 75 percent of the commonwealth’s voters approved a constitutional amendment defining marriage as a covenant between “one man and one woman” — which is how it’s been defined in Western civilization for 2,000 years.

In a decision that could radically change that definition, U.S. Distict Judge John G. Heyburn II of Louisville on Feb. 27 issued a final order subsequent to his ruling that Kentucky laws that prohibit recognition of legal same-sex marriages violate the Equal Protection Clause of the U.S. Constitution’s 14th Amendment and are therefore “void and unenforceable.”

The next day, Heyburn granted a stay of his order until March 20 to give the state time to decide whether or not to appeal.

The state’s decision, which came Tuesday morning, surprised many.

Kentucky Attorney General Jack Conway first said he would not fight the judge’s decision. In a teary statement, he said he had prayed about his decision and sought the counsel of his wife, Elizabeth, and others. He said he came to the “inescapable conclusion” that if he appealed the decision, he would be defending discrimination. “That I will not do,” he said.

Soon after Conway announced his decision, Gov. Steve Beshear declared his. Even if the attorney general would not appeal the ruling, he said, he would go forward, using independent counsel.

Beshear said “the opportunity for legal chaos is real” because other courts might reach other decisions.

The governor said he understood it is an emotional issue for people on both sides, but he believes it is one that ultimately should be decided by the Supreme Court of the United States to settle it once and for all.

When I heard about Conway’s decision, I thought it was gutsy. This is a man who wants to be governor, and he may be the Democratic frontrunner for 2015. Although taking a liberal position on same-sex marriage might help him with the party’s activists, it would ruin any hope he had of winning the general election. Kentucky is a state where even most Democrats are conservatives, and in recent polling, a slight majority of Kentuckians still oppose gay marriage, usually for religious reasons. They believe the Bible’s teaching on homosexuality is unambiguous.

Unlike Conway, Beshear has no political concerns other than his legacy. He’s more or less said he’s done with running for office — not because he’s long in the tooth, but because he’s had a remarkable career, as a state legislator, attorney general, lieutenant governor and two-term governor with national stature, after having lost a race for that office 20 years before he was elected to it.

Retiring to his Clark County horse farm to live out the rest of his days with Jane Beshear as a country gentleman and elder statesman has got to be more attractive than getting into the quagmire that Washington has become in this young century.

The day of the governor’s judgment, I spoke with Barlowe, who felt betrayed by Beshear’s stand. He and his partner have waited a long time for the recognition they feel they deserve — 45 years. As he told Conway, they’ve been together longer than he’s been living.

But for many Kentuckians, changes in the law and politics regarding same-sex marriage are occurring at breakneck speed. It was only a few years ago that it was considered boldly liberal for a candidate or office holder to say she could accept states allowing same-sex civil unions, but that the federal government should stay out of it — and moreover, that marriage should always be between “a man and a woman.”

It was Bill Clinton, after all, not George W. Bush, who signed the Defense of Marriage Act.

While I appreciate Conway’s heartfelt conviction, I believe Beshear has shown sound judgment in defending the lawsuit on behalf of the people of Kentucky, whatever the outcome.

I don’t think the governor lacks heart. I think he just understands the hardheaded reality of the issue and the consequences of it better than the attorney general does.

Kentucky Senator Gatewood Galbraith?

Gatewood Galbraith said that he would see me in hell, but I don’t hold a grudge.

If he’s right, I’ll be in good company. He said the same thing about David Hawpe, former editor of The Courier-Journal and Tim Kelly, former editor and publisher of the Lexington Herald-Leader.


The cover photo for Gatewood Galbraith's 2004 autobiography, "The Last Free Man in America."

Galbraith, who garnered 9 percent of the vote as an independent candidate for governor in the Nov. 8 election, gave the three of us “hell” because we didn’t consider him a serious candidate in past elections.

During his 2003 race for attorney general, I wrote an editorial or column for The Jessamine Journal asking: Do we really want someone as the state’s top prosecutor who is a criminal defense attorney best known for advocating the legalization of marijuana?

Several months later, in his autobiography, “The Last Free Man in America Meets the Synthetic Revolution,” Galbraith struck back, saying most newspaper editors lack intelligence, have never held “real jobs,” can’t relate to real people, “lack courage” to question their “masters’ agenda,” favor the “status quo,” refuse to do anything that might “upset their apple cart,” and get “more ignorant” the longer they hold their jobs.

I don’t think that’s fair. I don’t know of any group of professionals who enjoy upsetting apple carts more than newspaper editors do, or who are more likely to risk going against their paymaster’s agenda.

Cannabis stupida

As for not appreciating the benefits of cannabis, that’s nonsense. Nearly every newspaperman I know who came of age in the time of Hunter S. Thompson conducted herbal experiments, and many would “wake and bake” before their coffee was brewed.

In my case, it never cured my asthma or alleviated anxiety, and it didn’t make me a better writer or interviewer. It just made me dumb and giddy. I gave it up long ago and don’t recommend it to aspiring journalists — or anyone else.

Nor do I think it should be made legal for recreational use, although the latest poll shows I’m in the minority. I know it helps cancer patients with the nausea and other effects of chemotherapy, and for such purposes, it should be available with a doctor’s prescription. But not for treating boredom and other common ailments.

Enough about that.


Right and righteous

Gatewood may be wrong about marijuana, and his fondness for machine guns makes me uncomfortable. But he’s right about a lot of other things.


2011 independent gubernatorial candidate Galbraith, left, with Republican nominee David Williams, president of the Kentucky Senate, at a KET debate.

What’s important for me as an evangelical Christian is that he’s pro-life and favors increased funding for faith-based initiatives. He’s also a Catholic and a former altar boy, which are two marks in his favor.

He’s also generally conservative in the old-fashioned sense, and not a neocon or a free-market flat-earther.

While he praises marijuana, he has been outspoken about the scourge of prescription drug abuse and would require a prescription for pseudoephedrine, which is used to make meth.

He advocates charter schools for children, greater accountability for teachers, pension reform for state workers and tax reform for all.


The environmental costs of mountaintop removal mining far outweigh the benefits, but Galbraith was the only candidate willing to admit that in the last election.

As an environmentalist, I appreciate the fact that he was the only candidate for governor in the last election who had the cajones to stand up to the coal barons and state unequivocally that mountaintop removal mining is an ecological catastrophe and should be outlawed.

And as someone who believes we all have a moral obligation to care for the disadvantaged, I respect him for wanting a 30 percent cap on loans made by payday lenders who prey on the poor.

Finally, as an independent, Galbraith was able to state the truth that most of the problems in government are caused by partisan gridlock and politicians being in the pockets of special interests.

I considered voting for Galbraith this time but didn’t, mainly because of his lack of experience. With their knowledge of state government, both Gov. Steve Beshear and Senate President David Williams were more qualified than Galbraith to manage and lead.

That doesn’t mean, however, that there shouldn’t be a role for him to play in state government if he wants it.

The question is, does he?




Galbraith is wrong about recreational marijuana, but he's right about other things.

Galbraith’s inclination to seek higher offices that he’s unlikely to win reminds me of a story I read this week about the conservative icon William F. Buckley Jr.

When Buckley, the journalist, ran for mayor of New York in 1965, he was asked if he really wanted to be mayor.

I have never considered it,” he playfully answered.

How many votes did he expect to get, a reporter asked.

Conservatively speaking, one.”

And what would he do if he were actually elected?

Demand a recount,” he replied.

He lost, of course, and took enough votes away from the conservative Democrat in the race that he elected the candidate he least wanted as mayor, the liberal Republican John Lindsay.

That’s usually the risk of running for higher office as an independent or third party candidate. For example, we can thank or blame Ross Perot for electing Bill Clinton and Ralph Nader for electing George W. Bush.

In a contest where the stakes aren’t so high, however, having a maverick third candidate can change the status quo — or, as Gatewood would say, upset the apple cart.

For Gatewood Galbraith, winning a seat in the state legislature would provide an opportunity for his voice to be loudly heard beyond the campaign.

And we could be sure that a “Senator Galbraith” would say some things that need saying and that people would pay attention.


June 2017
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