Lawyers for Gov. Steve Beshear defended Kentucky's ban on same-sex marriage Wednesday before the 6th Circuit U.S. Court of Appeals, arguing that a federal district judge in Louisville erred this year by striking down the law.
Kentucky joined the other states in the 6th Circuit — Michigan, Ohio and Tennessee — in asking a three-judge panel to overturn the unanimous decisions of lower courts and let the states continue to define marriage as exclusively between heterosexuals.
Kentucky has two issues before the appeals court: whether it must recognize valid same-sex marriages from outside the state and whether it must issue its own marriage licenses to gay and lesbian couples.
Nearly 75 percent of Kentucky voters approved an amendment to the state Constitution in 2004 to define marriage as a relationship between one man and one woman, attorney Leigh Gross Latherow, who is representing Beshear, told the court. Voters, not judges, should decide the issue, she said. "This court cannot resolve the polarizing debate surrounding same-sex marriage," Latherow said. "This court can decide who gets to have this debate."
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Laura Landenwich, representing eight same-sex couples suing the state of Kentucky, said elections should not decide who gets civil rights. Marriage is a fundamental right, providing not only legal and financial benefits but dignity in the community, Landenwich said.
"The purpose of the courts is to step in and protect the rights of minorities from the majority in our otherwise democratic society," Landenwich said. Pointing behind her to a courtroom packed with same-sex couples, some holding babies, she added, "These individuals are entitled to the equal protection of the law and they are entitled to exercise their fundamental rights."
The appeals court is expected to rule swiftly, possibly soon enough for the cases to proceed this year to the U.S. Supreme Court, which begins its term in October. Federal appellate courts in Denver and Richmond, Va., recently upheld lower courts' decisions against several other states' same-sex marriage bans, reflecting a wave of such rulings during the past year.
U.S. District Judge John G. Heyburn II of Louisville handed down two decisions this year stating that Kentucky's marriage ban unfairly and unreasonably discriminated against gays and lesbians and their children, and was unconstitutional. He put his decisions on hold pending appeal.
Attorney General Jack Conway, who defended the ban until Heyburn ruled, quit the case in February, saying Kentucky was unlikely to prevail. Beshear hired a private law firm to appeal, saying he wanted a higher court to "bring finality and certainty to this matter."
Of the three appeals judges to hear Kentucky's arguments Wednesday, one — Senior Judge Martha Craig Daughtrey, appointed by Democratic President Bill Clinton — was openly hostile to the states' arguments for the marriage bans. Federal courts had to order some states to provide civil rights to blacks, including the right to marry whites, and to stop the criminal prosecution of gays and lesbians for their private sexual behavior, Daughtrey said.
When an attorney for the state of Ohio recommended "a cautious approach," letting more conservative states extend marriage rights only as a majority of their citizens become comfortable with it, Daughtrey cut him off. She told him that American women fought at the local level for the right to vote for nearly a century before the 19th Amendment was ratified in 1920.
"My point is, you want to do this state by state, legislature by legislature, municipal government by municipal government, so far as I know, and it doesn't always work," Daughtrey said.
Daughtrey also challenged Latherow when the lawyer said Kentucky had a legitimate interest in defining marriage as between heterosexuals because only they can make babies.
"The state's interest is in procreation," Latherow said. "And we believe that couples who are married procreate."
But Kentucky allows heterosexuals to marry even if they're unable or unwilling to have children, Daughtrey said, and it does not prevent unmarried heterosexuals from having children. How would Kentucky's birthrate be harmed if gays and lesbians married? she asked.
"The law doesn't have to be drawn with mathematical certainties," Latherow replied.
The other two judges, both appointed by Republican President George W. Bush, sounded more cautious in their comments and questions.
Judge Deborah Cook asked attorneys for the states if it was a problem for federal courts to overturn the will of voters as decided by state laws and constitutional amendments. They told her it was.
Judge Jeffrey Sutton, a former clerk for conservative U.S. Supreme Court Justice Antonin Scalia, said recent actions by about half of the states and many federal courts suggested same-sex marriage soon would be recognized across the country. Last year, the Supreme Court sharply criticized a federal same-sex marriage ban, the Defense of Marriage Act, calling it "humiliating" to gays, lesbians and their families.
"It does seem fair to say the Supreme Court's trajectory favors the plaintiffs," the same-sex couples, Sutton said. "It just does."
However, Sutton asked attorneys for the same-sex couples if it wouldn't be more beneficial for the states to agree on their own terms to recognize same-sex marriage, through elections and the legislative process, rather than being ordered to by judges.
"Changing hearts and minds works much more efficiently through democracy," Sutton told Al Gerhardstein, an attorney for the Ohio couples.
"I understand that, judge," Gerhardstein said. "But I represent couples whose children deserve to have two (legally recognized) parents. And they deserve that today."