Andrew Wolfson

The Courier-Journal;

Gov. Steve Beshear's lawyers say Kentucky's ban on gay marriage 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 on recognizing gay marriages 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 couples differently.

MORE | Read the legal brief defending gay-marriage ban.

Attorney General Jack Conway, whose office had been defending the ban, declined to appeal Heyburn's ruling, saying at the time that he thought the ban wasunconstitutional. Beshear's office then hired an Ashland law firm to handle the appeal, which was filed Monday at the U.S. 6th Circuit Court of Appeals in Cincinnati.

In the 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 birth rates.

The appeal doesn't explain how allowing gays to marry would reduce the birth rate among heterosexual couples.

Laura Landenwich, one of the plaintiff's lawyers, said the state's view "that marriage is designed to perpetuate the species is offensive."

"Most Kentuckians — on both sides of the issue — view marriage as a social partnership, a spiritual bond, a commitment to navigate life together," Landenwich said. "Children are often a part of that shared journey, but the relationship extends beyond that."

She also said the state must offer a justification that is "rationally related" to its interest to justify discriminating against some of its residents.

"For the first time, the governor claims that barring same-sex couples from the state's marital institution will encourage opposite-sex couples to procreate. On its face, this justification is not rational. You don't have to be a lawyer to see that."

The appeal also doesn't address gay couples who give birth through surrogates or other alternatives.

Latherow's firm referred questions to Beshear's spokeswoman, Kerri Richardson, who said the governor's office would have no comment.

In his ruling, Heyburn rejected the idea that procreation is a legitimate reason for gay-marriage bans, saying exclusion of same-sex couples on those grounds "makes just as little sense as excluding post-menopausal (heterosexual) couples or infertile couples."

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," and 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."

The plaintiffs have until June 9 to file a response to the appeal.

Heyburn had ruled in favor of four gay and lesbian couples who were married in states that permit same-sex marriage, then denied the benefits of marriage in Kentucky.

Heyburn's Feb. 12 opinion — which he stayed pending the outcome of the appeal — came on the heels of similar rulings by nine other state and federal court judges.

Other plaintiffs in his court have asked him to allow gay marriages to be performed in Kentucky, and the lawyers handling the Kentucky case on March 4 filed a similar suit in federal court in Southern Indiana to force that state to allow same sex marriages in that state.

Since Heyburn's ruling, federal judges in Tennessee and Texas have struck down gay-marriage bans.

Reporter Andrew Wolfson can be reached at (502) 582-7189.