Beshear's attorneys lay out state's defense for excluding same-sex couples from marriage

jcheves@herald-leader.comMay 22, 2014 

Attorneys for Gov. Steve Beshear argued this week that Kentucky has the legal authority to deny marriage certificates sought by same-sex couples because "there is no fundamental right to same-sex marriage."

In a motion filed Monday before U.S. District Judge John G. Heyburn II in Louisville, the state's lawyers also argued that Kentucky has an economic interest in promoting heterosexual marriages that produce children, and that the U.S. Supreme Court has allowed states to define marriage inside their borders.

The Beshear administration was arguing against summary judgment in Love vs. Beshear, in which same-sex Kentucky couples are suing for the right to obtain marriage certificates from county clerks. It made a similar argument earlier this month in Bourke vs. Beshear, now before the U.S. 6th Circuit Court of Appeals, in which plaintiffs asked Kentucky to recognize their same-sex marriages from other states or countries.

Heyburn ruled for the plaintiffs in Bourke, although he put his decision on hold pending the state's appeal. He is expected to rule on Love in coming months.

In their motion for summary judgment, filed last month, the plaintiffs argued that Kentucky's same-sex marriage ban violates the guarantee of equal protection under the laws that is promised by the U.S. Constitution's 14th Amendment. Marriage is a fundamental right for citizens, they wrote.

"The Supreme Court has long acknowledged limits to state sovereignty," wrote Daniel J. Canon, a lawyer for the plaintiffs. "The states do not, in fact, enjoy absolute sovereignty over issues of marriage and domestic relations. They cannot, for instance, limit marriage to couples of the same race."

However, the Beshear administration framed the issue as a states' rights issue.

Kentucky twice has limited marriage to "one man and one woman," once with a 1998 state law and again with a 2004 amendment to the state constitution, wrote attorney Leigh Gross Latherow, representing Beshear.

"Thus, while other states may have chosen to exercise their sovereign authority to redefine marriage to include same-sex couples to reflect the sentiments of those communities, Kentucky citizens have exercised their like right to maintain the state's traditional man-woman definition," the state's lawyers said.

Beshear awarded a $100,000 contract to the Ashland law firm of VanAntwerp, Monge, Jones, Edwards & McCann to represent him in same-sex marriage litigation after Attorney General Jack Conway quit the cases in March. Conway said the state's 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."

Also Thursday, the Kentucky Baptist Convention in Louisville issued a statement warning churches that they could be forced to officiate at same-sex weddings in the future or else forfeit their tax-exempt status. Hundreds of evangelical Christians were expected at Crestwood Baptist Church for a conference focusing on the same-sex marriage litigation.

"Just as a homosexual couple recently demanded a marriage license in Louisville and staged a sit-in when denied, a local church or church clergy may soon be the victim of a similar stunt and find themselves dragged into the courts," Paul Chitwood, executive director of the Kentucky Baptist Convention, said in the statement.

"We are only one court ruling or one presidential executive order away from removing the tax-exempt status of churches that refuse to conduct gay marriage, or ordering churches and ministers, like florists and photographers, to participate in gay weddings," Chitwood said.

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

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