By Bob Allen
A gay Baptist minister suing for the right to marry his partner in their home state of Kentucky said he was encouraged after attending yesterday’s hearing at a federal courthouse in Cincinnati challenging bans on same-sex marriage in four states.
“Our legal representation and that of the other same-sex couples did wonderful jobs defending the decisions of the previous federal judges who have ruled in our favor,” Maurice “Bojangles” Blanchard, an itinerant Baptist preacher and gay-rights activist, posted on Facebook following oral arguments before a three-judge panel of the 6th U.S. Circuit Court of Appeals. “Now we wait for a decision.”
Blanchard, a volunteer leader of an LGBT ministry at Highland Baptist Church in Louisville, Ky., and Dominique James, his partner of 10 years, are plaintiffs in one of six cases argued Aug. 6 that will determine the fate of laws banning same-sex marriage in Kentucky, Michigan, Ohio and Tennessee. Observers expect a ruling in the fall of 2015.
Blanchard and James filed their lawsuit, along with another same-sex couple seeking the right to marry, after U.S. Senior Judge John Heyburn ruled in February that Kentucky must recognize same-sex marriages performed in other states where gay marriage is legal, based on the Equal Protection Clause of the 14th Amendment.
“Kentucky law places a badge of inferiority on people and families, and it invades the sphere of individual rights protected by the Constitution,” argued attorney Laura Landenwich, representing six gay and lesbian couples in two Kentucky cases combined before the appellate court.
Representing the Commonwealth, attorney Leigh Gross Latherow argued that voters, and not the courts, should decide how marriage is defined.
“This court cannot resolve the polarizing social policy that’s to be made in the same-sex marriage debate,” Latherow said. “The court can and should decide the legal issue of who gets to resolve this debate.”
The outcome of the ruling could hinge on the legal requirement that laws have a “rational” basis for being applied.
Latherow said Kentucky’s interest in benefitting male/female couples who marry is procreation, needed not only for economic stability but for survival of the human race.
“Same-sex couples cannot procreate,” she argued. “They can perhaps do artificial insemination, and they can perhaps have a surrogate, but that’s not procreation of that couple.”
Martha Craig Daughtrey, the lone Democratic nominee on the three-judge panel, observed that the law does not require married couples to procreate, and that increasingly it is taking place with opposite-sex couples who are unmarried.
“There is a right not to procreate, your honor,” Latherow answered. “The question is in looking at a governmental benefit — which a marriage license is — and you’re looking under the rational basis test, is the group who gets the benefit — and here traditional man/woman couples get the benefit — does that benefit further the state interest?”
Blanchard and James argue in their case that the real reason behind Kentucky’s same-sex marriage ban is “animus,” a desire to deny rights to LGBT Americans in ways similar to laws that once banned interracial marriage.
By not allowing them to legally wed, they say the state denies them benefits such as lower income and estate taxes, leave from work under the Family and Medical Leave Act, family insurance coverage, the ability to adopt children as a couple, participation in legal and medical decisions on behalf of one’s partner, and, “perhaps most importantly, the intangible and emotional benefits of civil marriage.”
“The fundamental right to marry has not changed,” Landenwich argued on behalf of the gay and lesbian couples. “What has changed is our understanding of what it means to be gay and lesbian.”
“Now we must recognize that these individuals are entitled the equal protection under the law,” she said, “and they are also entitled to exercise their fundamental right” to marry.