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Kentucky the Latest Anti-Marriage Law to Fall

Judge John G. Heyburn II, a federal district court judge appointed by the first President Bush, struck down Kentucky’s ban on same-sex marriage on 14th Amendment equal protection grounds. He minced few words in rejecting the absurd arguments offered in defense of the law:

The Court will begin with Defendant’s only asserted justification for Kentucky’s laws prohibiting same-sex marriage: “encouraging, promoting, and supporting the formation of relationships that have the natural ability to procreate.” Perhaps recognizing that procreation-based arguments have not succeeded in this Court, nor any other court post-Windsor, Defendant adds a disingenuous twist to the argument: traditional marriages contribute to a stable birth rate which, in turn, ensures the state’s long-term economic stability.

These arguments are not those of serious people. Though it seems almost unnecessary to explain, here are the reasons why. Even assuming the state has a legitimate interest in promoting procreation, the Court fails to see, and Defendant never explains, how the exclusion of same-sex couples from marriage has any effect whatsoever on procreation among heterosexual spouses. Excluding same-sex couples from marriage does not change the number of heterosexual couples who choose to get married, the number who choose to have children, or the number of children they have. The Court finds no rational relation between the exclusion of same-sex couples from marriage and the Commonwealth’s asserted interest in promoting naturally procreative marriages.

The state’s attempts to connect the exclusion of same-sex couples from marriage to its interest in economic stability and in “ensuring humanity’s continued existence” are at best illogical and even bewildering. These arguments fail for the precise reasons that Defendant’s procreation argument fails.

Numerous courts have repeatedly debunked all other reasons for enacting such laws. The Court can think of no other conceivable legitimate reason for Kentucky’s laws excluding same-sex couples from marriage.

He’s right, of course. The idea that letting gay people get married will have any effect at all on straight people marrying is utterly nonsensical. Indeed, if it were true it would say far more about straight people than it would about gay people, wouldn’t it?

Comments

  1. anubisprime says

    The Court can think of no other conceivable legitimate reason for XXXXX’s laws excluding same-sex couples from marriage.

    Enter state name of your choice!

  2. eric says

    It’s a kick-ass statement. But I wonder how long we’ll have to wait before the anti-gay crowd comes up with a plaintiff who claims that the legalization of gay marriage affected him psychologically and gave him impotence,thus reducing the numbers of babies he would’ve had if it had not been made legal. (IOW, the “gay marriage made my winkie shrink” argument.)

  3. eric says

    Err…yeah guys can’t have babies. Bad phrasing. But I think you get my drift.

  4. says

    What this judge fails to appreciate is that each state only has 1000 marriage licenses to give out each month. Every time a homogay gets “married” that takes one away from the good, righteous straight people to get married! Thanks, Obama!

  5. John Pieret says

    yeah guys can’t have babies. Bad phrasing.

    No, the male is equally responsible for the birth of the baby, both biologically and socially, and it is (IMNSHO) correct to say that fathers have babies.

  6. gshelley says

    I wonder if there is any chance that someone in one of the states yet to fall will come out of their cloud of denial and realize they can’t make the claim “marriage is to encourage procreation if the laws on their state show absolutely no connection between marriage and procreation (or even a reverse one like Utah has). Once they have done that, could they try to amend their own states laws to exclude people over 55 from getting married, or so that some of the benefits of marriage only come into effect once the couple has children?
    I doubt it, as I think it would be extremely unpopular and I don’t think the anti SSM people really believe this argument, but it might be possible they are anti-gay enough that they would be willing to accept some other people as collateral damage.

  7. anubisprime says

    Fair point eric…but would any court worth its name proceed with such a subjective claim…?

    Not 100% sure if impotence due to claimed psychological damage would fly…even if teh ghey were the reason stated for that claimants ‘winkie shrinkage’

    Otherwise it kindda leaves the doors open for all sorts of vacuous claims…what about an Atheist claiming that the cross being an image of a torture implement causes psychological damage rendering procreation impossible?

    It would indeed be a very steep and slippery slope…but kindda fun looking at the possible ramifications.

  8. Chiroptera says

    Perhaps recognizing that procreation-based arguments have not succeeded in this Court, nor any other court post-Windsor….

    Or even pre-Windsor, if I understand the issue correctly.

    -

    eric, #3: Err…yeah guys can’t have babies.

    It seems that according to fundamentalists, the whole purpose of marriage is so that a man can legally acquire a uterus so he can have babies.

  9. says

    They never say it out loud, but I always get the feeling that their unstated fear is that if we remove all the stigmas associated with homosexuality, it will somehow open the floodgates and millions of men curently living heterosexual lives will abandon their wives and shack up with another dude, thereby reducing the amount of procreation they would otherwise have engaged in. It comes back to this weird idea they have that there’s something so powerfully attractive about the cock that we heterosexual dudes need constant admonishments to stay away from it.

  10. eric says

    @7:

    Fair point eric…but would any court worth its name proceed with such a subjective claim…?

    For that conservative plaintiff, I’m sure there will also be a conservative psychiatrist willing to testify that his/her client has suffered real, actual, psychological harm. That the stress of thinking about legalized SSM has caused his/her client PSTD, yada, yada, yada… and that his impotence is real in a medical sense.

    Now, I didn’t say I think the court will buy that argument. IMO its laughable. I just said I think we’ll see conservatives making it. ;)

  11. Trebuchet says

    These arguments are not those of serious people.

    I can think of at least four black-robed tyrants who will probably find those arguments perfectly compelling before very long.

  12. says

    d.c.wilson “It comes back to this weird idea they have that there’s something so powerfully attractive about the cock that we heterosexual dudes need constant admonishments to stay away from it.”
    Look, if its pull is powerful enough that women will put up with all our bullshit, surely it must have the same effect on men. Think of how powerful the lure of ladyparts is to men, but the other way around. It’s like an outie-vagina, but all manly and it barbeques and opens stuck jars and shoos spiders out the the bathtub.

  13. says

    “Not 100% sure if impotence due to claimed psychological damage would fly…even if teh ghey were the reason stated for that claimants ‘winkie shrinkage’”

    Well, it that’s the case, they can clear the courtroom, slap a penile cuff on the plaintiff and show him some hot “girl-on-girl:” action and see how long it takes for his potency to return.

  14. Al Dente says

    These arguments are not those of serious people.

    Judicial snark at its finest.

  15. says

    @ Al Dente

    Great snark and I suspect the judiciary will get even more snarky as the anti-SSM crowd keep trying to polish and sell the same turd over and over again.

    Other than the judges who are as stupid as Roy Moore themselves, most judges have little patience with stupid people — they see enough of them in their courtrooms every day.

  16. Nihilismus says

    Without actually bothering to look it up, I seem to recall that the dissenting opinion of the 3-judge federal appeals court panel that heard the Proposition 8 case came up with a reason along these lines that wasn’t directly mentioned by the lawyers on the Prop 8 side. The argument goes something like this:

    1. The state has an interest in promoting procreation (social security, economic, etc.)
    2. Children raised by two parents lead to better outcomes, for themselves and society.
    3. Marriage encourages this two-parent model and increases the odds that the two people will stick together.
    3. There exist some bigots and ignoramuses that will decide not to bother with marriage, because it doesn’t mean anything any more because even gay people can get married.
    4. Said bigots and ignoramuses will still have sex and procreate, and maybe even live with their partners for a while.
    5. But without the added legal burden of getting a divorce, these straight couples will split up at the first sign of trouble, which might take the form of an unintended pregnancy, leading to children being raised by only one parent, leading to worse outcomes.
    6. The state, though it can’t discriminate for discrimination’s sake, can take the facts as they exist and craft means rationally related to the legitimate purpose of promoting procreation, which here can take the form of appeasing the bigots and ignoramuses and encouraging them to marry by preventing gay people from marrying.

    Though there are numerous problems with this argument, here are two that stand out to me:

    1. It only applies to rational basis scrutiny. When using that form of scrutiny, judges won’t check to see if the numbers add up (e.g., even if some bigoted couples split up and their children are subsequently raised only by one parent, there might be more children raised in two-parent households over all if gay people are allowed to marry). If the scrutiny should be higher, which even Windsor seems to suggest without directly saying, then this method of promoting procreation is not narrowly-tailored to that purpose at all, and judges will actually look at the numbers to see.
    2. This is a slippery slope argument. It basically says that if a state’s legitimate interest can be burdened, even slightly, by the irrational actions of bigots demanding something, then the state can appease the bigots by passing discriminatory laws — because it’s not the state being bigoted . . . the state is just making a rational choice given the existence of other irrational actors.

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