Kentucky Gov. Steve Beshear’s argument that same-sex unions harm procreation is a “myopic” view of marriage, argues a response filed on behalf of Kentucky same-sex couples seeking recognition for their out-of-state marriages.
The plaintiffs filed a response Monday in the federal appeals court. In February, a federal district judge wrote that Kentucky’s ban violated the equal protection clause in the 14th amendment of the U.S. Constitution, and ordered Kentucky to recognize out-of-state same-sex marriages. Beshear hired a private firm to appeal on his behalf after Attorney General Jack Conway declined to take the case further.
In a May brief, Beshear argued that same-sex marriage does not violate the equal protection clause, and also argued that same-sex marriage harmed procreation and, therefore, Kentucky’s economic viability.
“You know, that got a lot of bad press, but that’s not necessarily a bad argument. I mean, it’s an interesting argument, and it’s something that we took seriously and tried to address as best we could,” said Joe Dunman, an attorney for the plaintiffs. “The decision to have children or to engage in any type of sexual activity is a privacy matter.”
The plaintiffs’ response filed Monday picks at the governor’s contentions (as such filings do), including the procreation argument:
“There is no rational relationship between a state interest in opposite-sex procreation and the exclusion of same-sex couples from marriage benefits. Defendant does not explain how denying same-sex couples entry into Kentucky’s marital scheme promotes opposite-sex procreation because he cannot.
“Prohibiting farmers from growing tomatoes in greenhouses does not increase the yield of farmers growing tomatoes in the field,” the response adds.
The plaintiffs’ response and the governor’s May filing are at the bottom of this story.
The governor’s attorneys did not return a telephone call and an e-mail message left Tuesday afternoon.
Oral arguments are planned for early August before the Sixth Circuit Court of Appeals, which covers Kentucky, Tennessee, Ohio and Michigan, Dunman said.
Same-sex marriage cases from those four states are pending in the Cincinnati-based appeals court. The panel is expected to hear arguments from each state on the same day, he added.
The appeals court may combine the cases. Dunman said he’d expect to have a decision possibly by September. No matter how the appeals court rules, the case is likely to be appealed to the U.S. Supreme Court.
Meanwhile, the matter of whether same-sex marriages can be performed in Kentucky is still pending in District Judge John Heyburn has yet to rule in that portion of the case, called Love v. Beshear. Dunman said Heyburn may wait to see how the appeals court sides on its cases—but Heyburn may also choose to issue an order sooner.
Read the plaintiffs’ response:
Read Beshear’s May filing: