By Sunnivie Brydum
Originally published on Advocate.com May 10 2014 9:00 AM ET
In a petition asking the Sixth Circuit Court of Appeals to uphold his state's constitutional ban on same-sex marriage, Kentucky Gov. Steve Beshear takes a peculiar new angle on the oft-used argument that marriage should be relegated to opposite-sex couples because they can procreate.
The 32-page brief, filed Monday by attorneys hired by the governor since the state's attorney general refused to appeal a February ruling that struck down Kentucky's voter-approved marriage ban, contends that the state has a legitimate interest in preserving "man-woman" marriage, because only that union can result in procreation. And procreation, the state argues, is essential to maintaining a stable birth rate; if that declined, the state would be placed in economic peril.
The Louisville Courier-Journal summarizes the state's reasoning by noting the seemingly incomplete argument advanced by attorney Leigh Gross Latherow.
In the appeal, the state's attorney argues that "Kentucky has an interest in maintaining birth rates, which, if allowed to fall, can induce economic crises because of the reduced demand for good and services, and the reduction of the work force," according to the Courier Journal. "She cited recent dips in the economies of Germany and Japan tied to declines in birth rates."
The paper went on to note, however, that "[t]he appeal doesn't explain how allowing gays to marry would reduce the birth rate among heterosexual couples."
What's more, the "procreation" argument has already been rejected in most federal courts where equality opponents have advanced it, and was directly addressed in the February ruling from a district judge that found Kentucky's existing marriage laws unconstitutional.
"Kentucky does not require proof of procreative ability to have an out-of-state marriage recognized," wrote U.S. District Judge John G. Heyburn in his February ruling, which this latest brief looks to appeal. "The exclusion of same-sex couples on procreation grounds makes just as little sense as excluding post-menopausal [heterosexual] couples or infertile couples on procreation grounds."
Heyburn's ruling declared that there was "no factual or rational reasons why Kentucky's laws are rationally related to any of [the stated] purposes," noting that the state recognizes some marriages performed by other states, but not those of same-sex couples. The language in that ruling was decisive, but Heyburn included a stay on the decision, delaying its implementation until the appeals process is complete.
Now that the state has filed its official appeal with the Sixth Circuit Court of Appeals in Cincinnati, the plaintiffs — four same-sex couples who have been together for between two and four decades each — have until June 9 to file a formal response.
But one of the attorneys representing the same-sex couples already issued a preliminary response to Louisville's Courier-Journal. She called the state's arguments that marriage is designed primarily to propagate the human race "offensive."
"For the first time, the governor claims that barring same-sex couples from the state's marital institution will encourage opposite-sex couples to procreate," Laura Landenwich told the Courier-Journal Friday. "On its face, this justification is not rational. You don't have to be a lawyer to see that."