Bourke v. Beshear appeal response: Governor ‘grasping at straws’


Co-plaintiff Gregory Bourke (center) surrounded by his legal team

Attorneys for the four same-sex couples challenging Kentucky’s marriage laws have filed a lengthy response to Gov. Steve Beshear’s appeal to Bourke v. Beshear, arguing the only goal of Kentucky law is to exclude same-sex couples from legal protection.

In May, Beshear’s lawyers responded to U.S. District Judge John Heyburn II’s February ruling striking down Kentucky’s ban, arguing only “man-woman” couples can naturally procreate — and the state has an interest in ensuring they do so.

Heyburn struck down Kentucky’s laws refusing to recognize legal marriages on constitutional grounds, stating they violate the Equal Protection Clause of the Fourth Amendment.

As many observers noted, Beshear never explained how recognizing legal same-sex marriages from other states would impact heterosexual reproduction in Kentucky.

Dan Canon, who represents the plaintiffs, told Insider Louisville that the state’s position is an attempt to make a novel argument, “but the Beshear camp has come up with something that’s frankly hard to understand at all.”

Here’s what legal team Canon, Joe Dunman, Laura Landenwich, Shannon Fauver and Dawn Elliott — attorneys with Clay Daniel Walton and Adams — have to say on that point in their appeal to the Sixth Circuit Court of Appeals:

Defendant now argues that  procreation and “stable birth rates” are a legitimate state interest, and that  excluding same-sex couples from the benefits of marriage rationally relates to that interest. However, the state’s alleged interest in the private, sexual decisions of its citizens cannot be a legitimate interest because it thrusts the state into the penumbra of privacy rights cast by the Constitution.

Furthermore, Defendant’s  rational basis argument is both illogical and belied by the fact that Kentucky’s  marriage laws are properly mute on the subject of procreation. They do not exclude the infertile or voluntarily childless.

Kentucky’s laws were  enacted to carry out an “arbitrary and invidious discrimination,” motivated by “a bare desire to harm a politically unpopular group,” the response states.

In their appeal, the attorneys note that in 1998, Kentucky and other states passed a series of statutes based on religious arguments limiting marriage to opposite-sex couples

Last February, Heyburn said those arguments were specious. In a 71-page appeal, Canon, Dunman and Landenwich contend Beshear’s latest argument that same-sex procreation and “stable birth rates” are a legitimate state interest is absurd.

In an interview, Canon called the Beshear position”simply the product of a state grasping at straws to come up with a rational basis for discriminatory laws.”

Canon said other states have based anti-same-sex marriage stances on tradition and heterosexual procreation, “and all those arguments have failed. In every court that ever considered the issue, those arguments failed.”

Canon added he doesn’t believe, as political pundits have speculated, the Beshear position is calculated to allow Kentucky to lose gracefully in appellate courts. He noted after Attorney General Jack Conway declined to pursue an appeal, the state hired outside counsel Leigh Gross Latherow, with VanAntwerp, Monge, Jones, Edwards & McCann, based in Ashland, Ky., rather than an attorney from an anti-gay rights advocacy group such as the Richmond, Va.-based conservative group, The Family Foundation.

“(Beshear) could have gone with the Family Foundation rather than the legitimate law firm with Supreme Court experience they did select,” he said.

Gov. Beshear’s office did not respond to calls for comment.

In the end, Beshear is trying to make Bourke v. Beshear an economic argument, Canon said, bestowing a special category of legal privilege on heterosexual couples as the only ones who can reproduce.