By Bob Allen
Lawyers for Kentucky Gov. Steve Beshear filed a legal brief May 7 claiming the commonwealth has an economic interest in banning gay marriage because it takes a man and a woman to make a baby.
The governor asked the 6th U.S. Circuit Court of Appeals to overturn a February ruling by a lower court that Kentucky must recognize same-sex marriages performed in other states where such unions are legal.
U.S. District Judge John G. Heyburn II ruled Feb. 12 that denying same-sex couples the benefits and privileges the state attaches to marriage violates the U.S. Constitution’s guarantee of equal protection under the law.
The judge said no “rational basis” exists for either a law passed by the Legislature in 1998 defining marriage as between one man and one woman or an amendment to the state constitution supported by 74 percent of voters in 2004 that legal same-sex marriages performed in other states cannot be recognized in Kentucky.
Private lawyers hired by the governor after Democratic Attorney General Jack Conway said he would not appeal the order requiring Kentucky to recognize same-sex marriages performed in one of the 17 states that allow them, however, argued in the new brief that the commonwealth has a “legitimate interest of fostering natural procreation through a traditional marriage model.”
“Procreation is vital to continuation of the human race, and only man-woman couples can naturally procreate,” the lawyers argued. The ability to produce offspring, they said, provides “long-term economic stability through stable birth rates.”
“Same-sex couples are materially different from traditional man-woman couples,” the brief argued. “Only man-woman couples can naturally procreate. Fostering procreation serves a legitimate economic interest that is rationally related to the traditional man-woman marriage model. Thus, same-sex couples are not similarly situated to man-woman couples, and the distinction drawn by Kentucky’s statutes is rationally related to a legitimate interest of Kentucky.”
Beshear’s lawyers said the potential of childbearing is what differentiates modern laws banning gay marriage from miscegenation laws that prohibited interracial marriage in the past.
Lawyers said there is no “constitutional guarantee of a right to same-sex marriage” and that same-sex couples are seeking “recognition of a new right” rather than an existing one.
“The institution of the man-woman marriage is deeply rooted in the history and traditions of our country,” they argued. “A right to same-sex marriage is not.”
Noting a strong correlation between a society’s birth rates and economic stability, they said, “only recognizing traditional marriage is not only rational, but also consistent with sound economic policy.”
Albert Mohler, president of Southern Baptist Theological Seminary in Louisville, Ky., said the governor’s attorneys make “a very compelling argument” in linking procreation to the state’s long-term ability to sustain an economy.
Maurice “Bojangles” Blanchard, a gay-rights activist and ordained Baptist minister who filed a lawsuit Feb. 14 asking the state to issue him and his same-sex partner a marriage license, called the brief “one of the most ignorant, bigoted and backward actions the state of Kentucky has ever attempted.”
“As a person of faith, I find Beshear’s actions to be disgraceful, immoral, and discriminatory,” Blanchard, who leads a ministry to the LGBT community at Highland Baptist Church in Louisville, posted on Facebook.
Blanchard said the governor, a Democrat elected in 2007 and re-elected in 2011, “now resembles a racist George Wallace standing on the steps of the University of Alabama, attempting to block the equality of a people long oppressed.”
“At least Wallace repented and asked for forgiveness,” Blanchard said. “Beshear is ridiculous.”
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