Ky. can restrict same-sex marriages because they don't produce children, Beshear's attorneys argue

jcheves@herald-leader.comMay 9, 2014 

Gov. Steve Beshear

Kentucky has a legitimate interest in restricting marriage to heterosexual couples because only they can produce children, and the state needs population growth to thrive economically, attorneys for Gov. Steve Beshear argued this week.

Private attorneys hired by the state filed written arguments Tuesday at the 6th U.S. Circuit Court of Appeals in Cincinnati. Beshear wants the court to overturn a Feb. 12 order by U.S. District Judge John G. Heyburn II of Louisville that would require Kentucky to recognize same-sex marriages from other states and countries that allow them.

Heyburn sided with four same-sex couples who sued the state last year. He ruled that the 14th Amendment to the U.S. Constitution guarantees equal protection under the law from state to state, so Kentucky cannot deny people their fundamental rights, including the right to marriage. In doing so, Heyburn struck down portions of a 1998 state law and a 2004 state constitutional amendment that limited marriage in Kentucky to "one man and one woman."

But Beshear's attorneys argued this week that gay and lesbian couples are not the same as other couples, and Kentucky should not be forced to pretend otherwise.

"Same-sex couples are materially different from traditional man-woman couples," attorney Leigh Gross Latherow wrote.

"Only man-woman couples can naturally procreate," Latherow wrote. "Fostering procreation serves a legitimate economic interest that is rationally related to the traditional man-woman marriage model. Thus, same-sex couples are not similarly situated to man-woman couples, and the distinction drawn by Kentucky's statutes is rationally related to a legitimate interest of Kentucky."

Also, Latherow argued, same-sex couples are asking to be given a newly created "special right" not available to other Americans.

"They want to redefine the right (of marriage) and create a new right — a new institution, one never recognized by the Supreme Court, as a fundamental right and, until relatively recently, never associated with the institution of marriage," she wrote. "It is well-established that courts should not readily create new fundamental rights."

Attorneys for the plaintiffs in the case said Beshear's logic is "ridiculous." Many heterosexual marriages don't produce children, they said, and allowing gays and lesbians to marry will not discourage heterosexual Kentuckians from having babies in or out of wedlock.

"This is not a rational basis for state interest in who can marry," said attorney Laura Landenwich, who represents the same-sex couples. "You don't, when you apply for a marriage license, have to check a box stating that you will procreate. Marriage is about a lot of things — love, sharing, responsibility. Children can be a big part of that, but they aren't present in every marriage."

Beshear awarded a $100,000 contract to the Ashland law firm of VanAntwerp, Monge, Jones, Edwards & McCann to represent him in the appeal after Attorney General Jack Conway quit the case in March, saying the same-sex marriage ban is discriminatory and Kentucky is doomed to lose after wasting its money in court.

At the time, Beshear said an appeal was necessary to avoid the possibility of "legal chaos."

"The people of this country need to know what the rules will be going forward," he said. "Kentucky should be a part of this process."

A spokeswoman for Beshear declined to comment Friday on the latest court filing.

Also this week, several out-of-state parties filed friend-of-the-court briefs in the lawsuit supporting Beshear in the case, styled Bourke vs. Beshear: the North Carolina Values Coalition; the Liberty, Life, and Law Foundation; and David A. Robinson, an employment lawyer in Connecticut.

In a separate case, Love vs. Beshear, which is still in front of Heyburn in Louisville, same-sex Kentucky couples are asking for the right to be issued marriage certificates by county clerks inside the state. That case is pending, with a decision expected in coming months.

John Cheves: (859) 231-3266. Twitter: @BGPolitics. Blog: Bluegrasspolitics.bloginky.com.

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