Domesticating judges
Does a state law giving special protection to women who are abused also apply to homosexuals? Some judges say it does.
From Kentucky Citizen Digest, May, 1997

A dispute between judges over the purpose of a domestic-abuse law has led to a larger debate over who should be covered by the law and who should decide the question in the first place.

After stories ran in the Lexington Herald-Leader about a judge who refused to apply the law to homosexuals who were living together, state Sen. Tim Philpot of Lexington introduced a pre-filed bill that would restrict the special protections under the law to women and children.

The action prompted immediate criticism from the Herald-Leader and other pro-homosexual rights interests who think that the law should automatically apply to homosexuals.

“We went to a lot of trouble to investigate the issue of violence against women,” said Philpot, “And after we established conclusively that there was a problem with domestic violence against women, we decided to go above and beyond the protections that already existed in the law concerning assault and battery in order to protect women. That was the intent of the law.”

Philpot said that if there is a similar problem among homosexuals who live together, then it would also be dealt with. “If there is a problem of violence among homosexuals who live together, then we need to deal with the problem and pass a law if we have to. But I think it is a mistake to take a law designed to cover families and heterosexual couples and apply it to other cases when we have never even looked in to the problem”

Chief Fayette District Court Judge Kevin Horne is one of the judges who has refused to apply the law to homosexuals. Other judges have taken to routinely applying to gays.

The key issue in the debate has to do with the meaning of the term “domestic.” Some judges are assuming that this includes homosexual couples, a group that was never included in the discussions leading up to the law.

Philpot also said that for judges to go beyond the original law’s intent would be to place them in a position of making state policy as opposed to interpreting the law.

Some might ask what would prevent a judge from simply assuming that marriage covered homosexual couples as well? This would, of course, completely bypass popularly elected lawmakers.

Philpot is now chairman of the Senate Judiciary Committee as a result of a takeover in the state Senate by a coalition of Republicans and mostly conservative Democrats. As Judiciary chairman, he has the authority to determine what hearings can be held by the committee.

He is expected to have hearings on this and other issues related to gays this summer.
 

Key Family Foundation Contacts: Kent Ostrander, Executive Director Martin Cothran, Senior Associate Policy Analyst