Andrew Wolfson

The Courier-Journal;

One constitutional scholar calls it "absurd" and "desperate," while another says it is "irrational and preposterous."

That's how they and other critics are characterizing the legal defense Kentucky is offering in support of its ban on gay marriage — that the state has a valid interest in promoting traditionally marriage to maintain its birthrate and a vital economy.

A Los Angeles Times editorial columnist wrote that that Kentucky "reached a new low in poorly thought-out reasons for keeping gay and lesbian couples from marrying."

Some lawyers in Kentucky say the brief filed May 7 at the U.S. 6th Circuit Court of Appeals is so illogical that they theorized that Gov. Steve Beshear, who previously was friendly to gay rights, may be trying to lose the case while appearing to defend the ban. Beshear hired private lawyers to represent the state after Attorney General Jack Conway declined to appeal a ruling that struck down the state ban.

But defenders of traditional marriage say Beshear's brief, which seeks to reverse a federal judge's ruling throwing out the state's ban, has been misinterpreted and misunderstood.

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"It does not say recognizing same-sex marriages will lead to an economic crisis, only that the state has a legitimate interest in encouraging the traditional institution of marriage," said Mat Staver, dean of the Christian Evangelical Liberty University School of Law of Lynchburg, Va., and founder of the Orlando-based Liberty Counsel, which describes itself as a pro-family group.

UCLA law professor Eugene Volokh says Kentucky doesn't have to prove the birthrate would plummet if gays could wed. Instead, it must only show that there is a "rational basis" for its claim that traditional marriage law encourages opposite-sex couples to have more children and that allowing same-sex marriages would tend to produce fewer children.

"The standard is very low," said Volokh, whose libertarian-conservative blog is distributed by The Washington Post. "The only requirement is that rational people could conclude that the law would, to some extent, achieve its goals."

Kentucky's appeal

The state is appealing U.S. District Judge John G. Heyburn's Feb. 26 ruling that required Kentucky to recognize same-sex marriages legally performed elsewhere, saying the state's ban violates the constitutional guarantee of equal protection under the law.

Beshear has refused to comment on the case, including whether he shares the view expressed in the brief that that only "man-woman couples can naturally procreate" and the state has a legitimate interest in encouraging them to do so to support "long-term economic stability through stable birth rates."

Attorney Leigh Gross Latherow of Ashland, who prepared and signed the brief, declined to respond to requests for comment. Her firm referred questions to Beshear's office, which spokeswoman Kerri Richardson said had no comment.

Gay-rights activists and constitutional law professors, including the University of Louisville's Sam Marcossen, say the state's appeal makes no sense.

"Nothing in the Beshear brief explains how allowing same-sex marriage will change how many heterosexual couples get married and have babies, or how many babies they have," he said, calling the argument "irrational" and ""preposterous."

Evan Wolfson, founder and president of the New York-based Freedom to Marry, said: "The state doesn't show — because it can't — that denying gay people the freedom to marry does anything to promote anyone else's procreation.

"Gay and non-gay couples marry for a bunch of reasons not related to birthrates and procreation, including love, commitment and providing a strong family setting in which to build a life with a partner and, for many, raise kids," he said.

Multiple cases pending

Judges in Utah, Virginia, Oklahoma, Texas, Michigan and Idaho have invalidated those state's gay-marriage bans, while judges in Ohio and Tennessee, as in Kentucky, have thrown out laws barring recognition of same-sex marriages performed elsewhere.

Two federal appeals courts have heard arguments on those rulings, but no date has been set for hearing the Kentucky appeal.

The Supreme Court ruled last June that federal marriage benefits must be provided to same-sex couples, but so far it hasn't addressed whether they have a right to marry.

In their defense of same-sex marriage bans, many states have argued that procreation is essential to human survival and that traditional marriage encourages that indispensable act through lasting unions.

But legal scholars, including Ruthann Robson of the City University of New York, say Kentucky may be the first to tie government's interest in procreation to the birth rate and the economy.

"It's a rather unique twist," she said.

Kentucky advances other arguments in its appeal — including that marriage policy should be left to states.

But it says tax breaks and other marriage benefits should be made to "man-woman couples" alone because only they can naturally procreate, while gays and lesbians are seeking the same benefits "without furthering Kentucky's legitimate and vital economic interest."

"Kentucky's support of the only type of relationship that can naturally procreate ... is not only rational," the brief says, "but also consistent with sound economic policy."

Rational or absurd?

Martin Cothran, an analyst with the Family Foundation of Kentucky, which opposes same-sex marriage, says the state has no choice but to cite an economic argument because "liberal judges" have rejected others based on "traditional, morality and family values."

Robson, also a co-editor of the Con Law Prof Blog, and other professors say that Kentucky must do more than show that there is a rational basis for supporting traditional marriage; it must show that the ban on recognizing same-sex marriages is "rationally related" to its interest in fostering opposite-sex ones.

Schwinn said that argument is "absurd" and "desperate" and will be impossible to win.

"In a day and age when same-sex couples routinely rely on technology to procreate, it can hardly be said that procreation is a reason to exclude them from marriage," he said. "On the other side of the coin, when many married couples do not procreate, either by choice or biology, it can hardly be said that traditional marriage necessarily promotes procreation."

Kentucky's "justification not only makes no sense," he said, "it also underscores the government's real reason for disallowing same-sex marriage — bald and baseless discrimination."

Marcossen says he doubts that Beshear is trying to lose the case. The problem, he says, is that there is no valid constitutional defense for the state's gay marriage ban.

"But having his name attached to this brief," Marcossen said, "will be one of the worst marks against Gov. Beshear's legacy."

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

Standards of review

Kentucky must prove only that there is a "rational basis" for its law and constitutional amendment barring recognition of same-sex marriages. That is the lowest standard of review in a claim that alleges denial of the equal protection of the law.

The Supreme Court has said classifications based on race require what is known as strict scrutiny — the highest form of review — in which the government most show a compelling interest in treating similar groups differently. That status has not been extended to gays and lesbians.