Kentucky’s Defense Of Its Ban On Same-Sex Marriage Is Absurd
Kentucky has offered the Supreme Court a defense of its ban on same-sex marriage that seems laughable.
With the arguments in the same-sex marriage cases before the Supreme Court set for less than a month from now, the briefs on behalf of the four states defending the law as well as outside parties filing amicus briefs in support of the state’s position have started to make their way into the Court. Each of these briefs make essentially the same arguments in defense of their laws that we’ve seen before, arguments that have only been accepted by one Federal Circuit Court of Appeals and two Federal Judges in Louisiana and Puetro Rico. The Louisville Courier-Journal, though, found one portion of the brief filed on behalf of the Commonwealth of Kentucky that makes perhaps the silliest argument in defense of those laws that has been advanced to date:
Kentucky Gov. Steve Beshear says the state’s ban on gay marriage should be upheld in part because it is not discriminatory in that both gay and straight people are barred from marrying people of the same gender.
In an argument labeled absurd by gay marriage advocates, Beshear’s lawyer says in a brief filed last week at the U.S. Supreme Court that “men and women, whether heterosexual or homosexual, cannot marry persons of the same sex” under Kentucky law, making the law non-discriminatory.
The argument mirrors that offered by the state of Virginia nearly 50 years ago when it defended laws barring interracial marriage there and in 15 other states, including Kentucky, by saying they weren’t discriminatory because whites were barred from marrying blacks just as blacks were barred from marrying whites.
The Supreme Court in 1967 rejected that argument in the historic case of Loving v. Virginia, in which Richard Loving, a white man, and Mildred Jeter, a black woman, were charged with a crime for marrying.
Dan Canon, a lawyer for the six gay couples challenging Kentucky’s gay marriage ban in a case to be argued at the Supreme Court on April 28, said Beshear’s argument is “especially absurd” as applied to same-sex marriage.
“Kentucky is in essence saying that our clients are precluded from marriage entirely, unless they change their sexual orientation (or simply marry someone to whom they are not attracted),” he said in an email.
“It’s akin to passing a law banning all Catholic churches within city limits, and then saying it’s not discriminatory because you can still go to a Baptist church,” he said.
Sam Marcosson, a professor of constitutional law at the University of Louisville’s Brandeis School of Law, said Beshear’s defense of “marriage inequality has really hit a new low.”
“I wonder what Governor Beshear and his lawyers would say if the shoe was on the other foot, and if the only option for marriage was of the same-sex variety,” said Marcosson, who is gay.
“Whatever his reasons, the governor has set Kentucky on a course of fighting to preserve invidious discrimination, and he has waged that fight in a deeply embarrassing way,” Marcosson said. “The taint to his legacy will be difficult for history to ignore.”
(…)
Defending their argument, Mathew Staver, founder of Liberty Counsel and dean of Liberty University School of Law, said that same-sex couples are not “similarly situated” by biology or history to opposite-sex couples and thus aren’t entitled to equal protection under the law as it has been defined in Supreme Court decisions.
Beshear has declined to discuss his personal view of gay marriage and said he is defending the state’s ban because he thinks the issue should be decided by the nation’s highest court.
Fifty-seven percent of registered voters in Kentucky oppose gay marriage, according to a Bluegrass Poll conducted March 3-8. Beshear is barred from seeking another term as governor, although his son, Andrew Beshear, is running for attorney general.
Gov. Beshear hired Latherow’s firm after Attorney General Jack Conway refused to defend what he said were discriminatory laws.
In a 42-page brief filed Friday, Latherow argues that Kentucky’s same-sex marriage ban does not violate the Constitution’s equal protection clause because it applies equally to men and women and gays and heterosexuals.
She also reiterates the argument she made in lower courts — that allowing only opposite-sex marriages promotes birth rates and supports “the formation of relationships that further the commonwealth’s fundamental interest in ensuring humanity’s continued existence.”
Here’s how Kentucky’s brief, which I’ve embedded below, puts the argument:
The Petitioners argue that the marriage laws of Kentucky discriminate facially on the basis of sex. Pet. Br. 38. This argument ignores the reality that Kentucky’s marriage laws apply equally to members of both genders and do not discriminate on that basis. The fact that, under Kentucky law, only men can marry women and vice versa demonstrates that the Commonwealth’s marriage laws are sex neutral and not discriminatory. See Baker v. State, 744 A.2d 864, 880 n. 13 (Vt. 1999)(“[T]here is no discrete class subject to differential treatment solely on the basis of sex; each sex is equally prohibited from precisely the same conduct.”); Conaway v. Deane, 932 A.2d 571 (2007) (deciding that a Maryland statute prohibiting same sex marriages did not draw an impermissible sex-based distinction because the statute did not separate men and women into discrete classes for the purpose of granting to one class benefits at the expense of the other); Wolf v. Walker, 986 F. Supp. 2d 982, 1008 (W.D. Wis. 2014), aff’d sub nom. Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014), cert. denied, 135 S. Ct. 316 (2014)(“[A] sex discrimination theory is not viable, even if the government is making a sex-based classifi cation with respect to an individual, because the intent of the laws banning same-sex marriage is not to suppress females or males as a class.”).
Most courts to have considered this issue have rejected the Petitioners’ sex discrimination theory. Wolf, 986 F. Supp.2d at 1008 (citing Geiger v. Kitzhaber, 994 F.Supp. 2d 1128, 1140 (D. Or. 2014); Latta v. Otter, 19 F.Supp.3d 1054, 1074 (D. Idaho 2014); Bishop v. U.S. ex rel. Holder, 962 F.Supp. 2d 1252, 1286 (N.D. Okla. 2014); Sevcik v. Sandoval, 911 F.Supp.2d 996, 1005 (D. Nev. 2012), rev’d on other grounds, 771 F.3d 456 (9th Cir. 2014); Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 1098 (D. Haw. 2012), vacated and remanded as moot, 585 F. Appx. 413 (9th Cir. 2014); Griego v. Oliver, 316 P.3d 865, 880 (N.M. 2013); In re Marriage Cases, 183 P.3d 384, 438 (Cal. 2008), superseded by constitutional amendment as stated by Hollingsworth v. Perry, 133 S. Ct. 2652, 2656, 768 (2013); Hernandez v. Robles, 855 N.E.2d 1, 10 (N.Y. 2006); Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407, 509 (Conn. 2008)(Borden, J., dissenting); and Conaway v. Deane, 932 A.2d 571, 601-602 (Md. 2007)), cf. Baehr v. Lewin, 852 P.2d 44, 59-63 (Haw. 1993)(plurality); Latta v. Otter, 771 F.3d 456, 482 (9th Cir. 2014)(Berzon, J., concurring). Kentucky’s marriage laws simply do not discriminate based upon sex.
This, obviously a fundamentally absurd argument and while Kentucky was obligated to respond to the Petitioners argument one would have thought they could have come up with something more coherent than this. Arguing that the ban on same-sex marriage isn’t discriminatory because it discriminates against everyone completely misses the point of the argument against same-sex marriage, which is that the law is discriminatory because it bars a certain class of people from getting married without any real justification for that discrimination. While raising the specter of the Loving case can certainly be inflammatory given the racial memories that it hearkens back to, it’s entirely fair to say that Kentucky’s argument here isn’t all that dissimilar from the argument that the laws against interracial marriage weren’t discriminatory because they didn’t prevent African-Americans from marrying each other. Perhaps it is true to say that the law isn’t a per se case of discrimination based on gender since it applies to both genders equally, that response completely ignores the point that it arbitrarily discriminates on the basis of sexual orientation, which is really the most important part of the argument.
There is much more to the arguments that Kentucky and the other states are making here, of course. In addition to this point, the brief also spends a considerable amount of time arguing that the state has an interest in only allowing opposite sex couples to gain the legal benefits of marriage. For example, as previous states have argued Kentucky argues that promoting birth rates is a rational basis upon which it can justify the decision to only sanction opposite sex marriage. As several Federal Judges have noted when this argument has been raised in previous cases, though, this argument ignores both the fact that state marriage laws do not bar people who are obviously too old to have children and that these laws don’t bar marriage by people who either cannot physically have children or make the conscious choice never to have children. The argument also ignores the existence of adoption and in vitro fertilization, both of which make it possible for childless couples to have and raise children. Even under the relatively lax standards of the rational basis test, which essentially says that unequal treatment by the state can be justified if the state can show that there is a rational justification for it, the “encouraging higher birth rates” simply does not seem sufficient and it seems unlikely that the same Justices who struck down the Defense of Marriage Act will be convinced by it.
Here’s the whole brief, if you’re interested
Well Doug, I know the Republicans are silly. Many of us choose to vote for the alternative.
Tony,
Governor Steve Beshear of Kentucky is a Democrat.
As I’ve said on several occasions, these kind of absurd arguments are basically the white flag from the anti-SSM forces. They make such strained arguments because they’ve run out of good ones. We’ve had SSM in this country for years now and the world has stubbornly refused to end. The entire state of Massachusetts has not turned gay. People in Iowa are still, believe it or not, having babies. We have not been smote by a wrathful God. Yet. So in the absence of an apocalypse, they’re down to, “Well, straights can’t marry gay men either so what’s the big deal?”
(There’s also an evaporative cooling effect as moderates have shifted in favor of SSM, leaving the nutters manning the last trench on the field.)
@Hal_10000:
Indeed, they know they are going to lose and the arguments they’re making are a reflection of that fact.
This would be like arguing that forced conversion to Islam would not violate the first ammedment because it leaves muslims and christians equally free to choose what mosque they wish to worship at.
the stupid, it hurts.
It’s as goofy as saying one’s sexual orientation is a choice.
Do you think they read that famous quote from Anatole France about the law in its majestic equality forbids the rich as well as the poor from sleeping under bridges and thought “hey, they’re a good legal argument — let’s use that!”
@Doug Mataconis:
He’s a Democrat who can read the tea leaves on both aspects of this issue.
1) He knows that presenting a token defense will play well with the voters in Kentucky, and;
2) He’s well aware of what the ruling is likely to be, which is why he turned to some nobody lawfirm in backwater Kentucky to represent him in his matter.
This is like something out of a Monty Python skit.
@HarvardLaw92:
No, No, No, Doug needs to get his both sides do it talking point out there. That has become the go to point for “reasonable Republicans” all day. It started this morning with Joe Scarborough when Gov. Malloy called Gov. Pence a bigot, Joe’s response was well you have a law too.
Doug’s experienced enough with the law and politics to know whats going on, but he has toe the party line of both sides do it.
—–
See how quickly he logged back in to identify Gov. Beshear as a Democrat, I imagine he was salivating waiting for someone to ask him that question.
@Loviatar:
Happy to oblige. If anybody thinks anti-SSM is more of a Democratic position than a Republican one, I have a bridge to sell you just south of Florida.
@Tony W:
I didn’t say that, you’re the one who turned it into a partisan issue.
Since I don’t generally vote for Republicans, or Democrats, the point is really rather irrelevant to me.
Professor Marcosson is optimistic, Governor Beshear’s legacy will not be hurt at all.
@al-Ameda:
If only the people who wage this fight had any shame….
To be frank, IMO this brief was always intended for local consumption from the outset. Beshear is an attorney. He has to know this filing is ludicrous from a legal perspective.
KY received 7 applications seeking to represent the state in this matter, 3 law firms from Kentucky, some paralegal training firm, Liberty Counsel, Duncan PLLC and Bradley Arant.
KY very quickly rejected Liberty Counsel and Duncan as being, and I quote “grounded in a singular ideological viewpoint”. The paralegal firm’s application appears to have been regarded as a joke.
That left the three KY firms, none of which have a significant, if indeed any, constitutional practice and none of which have worked on SCOTUS filings / arguments before. The contract appears to have been awarded to the firm that contributed the most money to Beshear’s campaign.
I’m not sure how much else anyone needs to see to recognize that Beshear never intended for this defense to prevail. I’m honestly not even sure he intended for it to have any legal merit at all. It’ll certainly play well in any future campaign he might decide to wage though, which as I said above is what I suspect the motive was all along.
Sorry, add to the above [and Bradley Arant pretty quickly withdrew its application]
@HarvardLaw92: This. And now to engage in a little “both sides” banter, you’re all suckers.
“In the days of my youth, I was told what it means to be a man………and now Ive reached that age I’ve tried to do those things the best I can…”
Doug: “This, obviously a fundamentally absurd argument and while Kentucky was obligated to respond to the Petitioners argument one would have thought they could have come up with something more coherent than this. ”
I’ve never heard of any requirement for counsel to raise arguments which were rejected decades ago. And when they do, I take that as an admission that they have no real arguments.
It’s interesting that Bashear is still c ontinuing to defend SSM, whereas his Democratic attorney general, Conaway, refused to continue to defend it.
It’s clear to me that Conway has the right view on the issue.Beshear doesn’t say why he continues to defend Kentucky’s SSM ban, although he could argue that he is simply doing what the majority of his SSM hating constituents want him to do. At least he’s not doing what Indiana Governor Pence is doing and actively championing a law designed to foster discrimination against gays.
As to Doug’s view that the fight for SSM is ” nonpartisan”, it’s a way for him to salve his conscience when he refuses to vote for pro SSM Democratic candidates in Virginia elections, where the Republican candidates are rabidly anti gay.Presumably, he can tell his gay friends , “Hey even though I didn’t vote for pro gay candidates, at least I wrote pro gay blog posts.”
@Barry:
The argument was rejected years ago for an entirely different category. That does not mean that the argument must fail in the current case. For a man or woman to claim that they are not bound by the same rules as every other man or woman can be interpreted as asking for special treatment. Asking for special treatment is not asking for equality. For a court to rule that the definition of marriage must be expanded to include those who prefer to marry someone of the same sex is to give special treatment to them.
@HarvardLaw92:
That seems to be the consensus among the locals (Louisville). He’s taking the negative hit as cover for the other Democrats in the state. He wants the Supremes to overturn it. I’m only recently a Kentucky voter, but it fits.
@Another Mike:
No, Mike, establishing a legal construct which affords a wide variety of benefits and special treatments under the law that are only available via that legal construct, then saying that access to that construct is only available to a subset of all possible two party relationships without a compelling rationale for doing so, constitutes special treatment.
Saying “the law must treat all two party relationships as being equivalent unless the state has a really, really good reason for excluding some of them” isn’t special treatment.
It’s equal protection.
For a long time now, straight couples (including my wife and I) have enjoyed a degree of legal benefit which was unavailable to other similarly situated couples. We have enjoyed, if you will, special treatment. Now, other couples get to enjoy that too. Frankly, it doesn’t affect my marriage at all, and I’m not bothered by it.
I can’t help but wonder why you are …
Don’t laugh so hard. The Commonwealth of Virginia was forced to change their laws regarding shipping of wine when their existing law (“No. But a Virginia winery can ship to you.”) was found to be unconstitutional. Their solution was to pass a law that says “Any licensed Virginia importer can ship wine to a Virginia address.” (This despite having made the silly argument in defense of the original law that shipping exposed children to alcohol.)
An importer’s license is fairly expensive. All Virginia wineries have one, of course, because that’s how they make most of their sales. Out of state wineries tend to not have one, because VA accounts for only a small fraction of their sales. But no more discrimination against out of state shippers, no sirree…
@HarvardLaw92:
This was settled centuries ago. Now it is being litigated again in the court of public opinion. Society will pay a price for its foolishness. I am not claiming that gay marriage was the beginning of the foolishness nor will it be the end of it. If I didn’t have the grandchildren, I might not even care.
Pray tell what that price will be…tell us how your grandchildren will suffer because of this “foolishness”…
@Another Mike:
I suspect that if you ask your grandchildren how they feel about SSM, you won’t like what they have to tell you.
@HarvardLaw92:
Those that are old enough to discuss this are, I believe, in agreement with me. The others are too young to even understand the issue.
Generally, I think you may be right. This is what kids learn in school. Kids learn how their teachers want them to feel about this issue. Then there is the whole pop culture scene kids are immersed in these days. The creators of the things kids see and hear every day are proponents of gay culture and that is imbued in their creations. Nevertheless it is a destructive message.
This is the message they seldom hear. “Marriage has always existed to unite a man and a woman as husband and wife to be mother and father to any children that their union might produce. It’s based on the anthropological truth that men and women are distinct and complementary. It’s based on the biological fact that reproduction requires a male and female. It’s based on the sociological reality that children deserve a mother and a father and do best when raised by their biological parents.”
This is why the state has cared about marriage. Until recently the state did not care about the feelings of adults who as a same-sex couple are biologically incapable of procreating. And now the adult children of gay parents, loving gay parents, are starting to speak out and say it is wrong to deliberately deprive them of a parent just to satisfy the feelings of adults. It leaves a void in their lives that cannot ever be filled.
I am a hard case and will not be swayed even by the best sophistry. Hopefully Justice Kennedy will wise up and leave this issue to be hashed out in the states.
@Another Mike:
We do not condition access to marriage on procreation, so that argument goes right out the window.
The rest just seems to me to be either “I do not like change!” or “how dare THOSE people think they are the same as me”. Neither one merits a reply.
I will say this – if Kennedy, the author of Lawrence v. Texas and United States v. Windsor – was inclined to rule against SSM, SCOTUS would have granted certiorari on any of the many affirmative circuit court decisions it turned away. You really should start trying to find a way to deal with the fact that this ruling is pretty much a lock for nationwide SSM.
@Another Mike:
People like you keep saying this, but can never point to any specific thing that has been destroyed, or even damaged. When you can point to actual harm caused to actual people, someone might believe that it’s not just mindless hateful bigotry that motivates you.
More people are now happily married than would have been. Who has lost anything? If that somehow diminishes you or your marriage, the problem is not with gay people.
@HarvardLaw92:
I can deal with it on one level. The courts decided between Bowers and Lawrence that it would henceforth invent morality. After that point the rest just falls into place. So I accept the power of the courts as it exists today, but I do not accept that everything is unchangeable.
@Another Mike:
Not exactly. Reality is either better or worse than that, from your point of view. What the court did was either recognize that morality is less important than justice as a consideration in lawmaking, or decide that they understand morality better than your particular cult does. It doesn’t really matter which it was, from a practical point of view.
@DrDaveT:
A man marrying another man is not justice. It is an absurdity. It is my neighbor breeding her one bull with the other one instead of with her cows. She would be out of the cattle business in no time with nonsense like that.
In the short run the gay marriage people have the upper hand, but in the long run it collapses into its own absurdity. However, not before it destroy many lives.
@Another Mike:
How exactly are these lives destroyed and how long will it take for this “long term” destruction?
@Another Mike:
Courts do not concern themselves with morality beyond objective harm. It is no more the place of a court to enforce moral standards than it is appropriate for the law to be utilized for that purpose to begin with.
Morality is a subjective, individual concept, to be imposed by a person onto his/her life WITHIN THE CONFINES OF THAT LIFE.
Your problem here isn’t that courts involved themselves with morals. They were responding to inappropriate attempts by lawmakers to legislate morality.
You seem to want courts enforcing your ideal of morality onto everyone else. I don’t want courts enforcing my ideal of morality onto anyone – including you.
@Another Mike:
On another site, I followed a link to an article by a group of four or five adult children of gay parents. In every one of the cases, they were not kids raised by gay parents from birth. They were children of an M/F couple who divorced, in which one or both parents later ended up in a same sex relationship. And the struggles they describe occurring in their lives post-divorce are typical of what most children experience when their parents divorce, e.g, “I missed my dad because I hardly ever saw him, since now he lived in another state.” There was no indication in any of their stories that the problems would have been resolved had one or both parents gone on to re-marry someone of the opposite sex.
@HarvardLaw92:
Lawmakers do impose moral standards. Courts do enforce moral standards. Do you think that the striking down of a moral standard by a court is not the imposition of a different moral standard? Whenever the court decides what ought to be and what ought not to be, it is establishing a moral proposition. It makes itself the decider of what is to be moral. All laws are moral propositions, or are a corollary of a moral proposition.
Saying that morality is a subjective, individual concept is simply saying that there is only one law, and that law is that there should be no other laws.
@Another Mike: still waiting for clarification on how my 3 year old marriage (18 years together, btw) is going to rain down destruction.
@Another Mike:
The law concerns itself, and should only concern itself, with objective harm. Morality is a concept of subjective offense, and has no place within the law.
@Another Mike:
You do realize that this obsessive inability to distinguish marriage from procreation is your personal hangup (or perhaps that of your cult), right?
Do you also feel that it is immoral for (say) paraplegics to marry? No procreation happening there, either, regardless of what plumbing the spouse has…
Actually, the absurdity is that you are so worried about two people who love each other getting married…the fact that you cannot prove that your fear is warranted perfectly illustrates the absurdity…sir, if I may so humbly suggest: grow up and get a life…
@Another Mike:
Still waiting for you — or anyone else — to cite a single historical instance of a life being destroyed by someone else’s right to marry whom they choose. (As opposed to the many, many lives destroyed by your preferred approach toward homosexuals…)