The private lawyers that Kentucky’s Democratic Gov. Steve Beshear has hired to defend the states unconstitutional ban on same-sex marriage have filed papers saying that the ban should be retained because only “man-woman” couples can naturally procreate — and the state has an interest in ensuring that they do.
Appealing a federal judge’s decision that the state’s ban violates the constitutional guarantee of equal protection under the law, Beshear’s hired counsel say Kentucky has a legitimate interest in encouraging procreation to support “long-term economic stability through stable birth rates.”
U.S. District Judge John G. Heyburn II in February struck down Kentucky’s law and constitutional amendment banning the recognition of same-sex marriages performed in other states, saying Kentucky had offered no rational basis for treating gay and lesbian couple’s differently.l.
In a 32-page appeal, attorney Leigh Gross Latherow says 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. She cited recent dips in the economies of Germany and Japan tied to declines in their birth rates.
The appeal doesn’t explain how allowing gays to marry would reduce the birth rate among heterosexual couples. It also doesn’t address gay couples who give birth through surrogates or other alternatives.
Heyburn had rejected the procreation argument, saying exclusion of same-sex couples on that ground “makes just as little sense as excluding post-menopausal (heterosexual) couples or infertile couples on procreation grounds.”
But the state’s appeal says that just because “man-woman couples who are infertile or incapable of naturally procreating are allowed to marry does not nullify the rational basis for a man-woman marriage classification.” The state says laws don’t have to be perfectly symmetrical to past muster under the equal-protection clause.
The state’s brief says “the power to define and regulate marriage is one uniquely within the realm of the state legislatures.”
It also says that Heyburn erroneously determined that Kentucky’s 1,222,125 voters who passed the constitutional amendment banning gay marriage “lacked a single rational basis for Kentucky’s adoption of the traditional man-woman marriage model.”
“The institution of the man-woman marriage is deeply rooted in the history and traditions of our country,” the appeal says. “A right to same-sex marriage is not.