Judge Rejects Kentucky’s Arguments Against Same-Sex Marriage With So Much Sass

The governor’s arguments in favor of the ban are “at best illogical and even bewildering,” the federal judge writes.

A supporter of same-sex marriage holds American and gay pride flags in San Francisco
National Journal
Sarah Mimms
July 1, 2014, 9:47 a.m.

A fed­er­al judge ruled Tues­day that Ken­tucky’s ban on same-sex mar­riage vi­ol­ates gay and les­bi­an couples’ equal-pro­tec­tion rights un­der the Four­teenth Amend­ment. U.S. Dis­trict Court Judge John G. Hey­burn II im­me­di­ately is­sued a stay — mean­ing that wed­ding bells in the Bluegrass State won’t be ringing while the state pur­sues an ap­peal — but he did take the op­por­tun­ity to snark about what he termed the state’s “be­wil­der­ing” at­tempts to up­hold the ban.

Demo­crat­ic Gov. Steve Be­s­hear and his at­tor­neys ar­gued — as oth­ers have in sim­il­ar cases across the coun­try — that giv­en the Su­preme Court’s re­fus­al to take up a gay-mar­riage case in 1972 and the fact that same-sex couples can­not pro­cre­ate “nat­ur­ally,” that Ken­tucky should be al­lowed to keep its ban on gay mar­riage. As in many oth­er cases across the coun­try, the court re­jec­ted those ar­gu­ments.

But this is where Be­s­hear and his law­yers get cre­at­ive or, as Hey­burn put it, “disin­genu­ous.” Mar­riage between het­ero­sexu­al couples, they ar­gued, con­trib­utes “to a stable birth rate which, in turn, en­sures the state’s long-term eco­nom­ic sta­bil­ity.”

Hey­burn, to put it mildly, didn’t buy­ing that ar­gu­ment:

Even as­sum­ing the state has a le­git­im­ate in­terest in pro­mot­ing pro­cre­ation, the Court fails to see, and De­fend­ant nev­er ex­plains, how the ex­clu­sion of same-sex couples from mar­riage has any ef­fect what­so­ever on pro­cre­ation among het­ero­sexu­al spouses. Ex­clud­ing same-sex couples from mar­riage does not change the num­ber of het­ero­sexu­al couples who choose to get mar­ried, the num­ber who choose to have chil­dren, or the num­ber of chil­dren they have.

… The state’s at­tempts to con­nect the ex­clu­sion of same-sex couples from mar­riage to its in­terest in eco­nom­ic sta­bil­ity and in “en­sur­ing hu­man­ity’s con­tin­ued ex­ist­ence” are at best il­lo­gic­al and even be­wil­der­ing.

Hey­burn went on to ar­gue that un­der that lo­gic, Ken­tucky could leg­ally deny mar­riage li­censes to couples who could not pro­cre­ate, or chose not to.

Cit­ing pri­or case law, Hey­burn con­cluded: “This Court bases its rul­ing primar­ily upon the ut­ter lack of lo­gic­al re­la­tion between the ex­clu­sion of same-sex couples from mar­riages and any con­ceiv­able le­git­im­ate state in­terest. Any re­la­tion­ship between Ken­tucky’s ban on same-sex mar­riage and its in­terest in pro­cre­ation and long-term eco­nom­ic sta­bil­ity ‘is so at­ten­u­ated as to render the dis­tinc­tion ar­bit­rary or ir­ra­tion­al.’”

Hey­burn wrote an earli­er opin­ion in Feb­ru­ary, alert­ing Ken­tucky that it would have to im­me­di­ately re­cog­nize same-sex mar­riages that were per­formed out-of-state. That rul­ing is be­ing ap­pealed as well. The Sixth Dis­trict Court of Ap­peals will hear or­al ar­gu­ments in the Ken­tucky case and cases in oth­er states be­gin­ning Aug. 6.

For more on the cur­rent state of the battle for same-sex mar­riage, check out our map of laws, court cases and le­gis­lat­ive fights across the coun­try.

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