Bourke v. Beshear - Think of the Children

In January, an organization called The Family Trust Foundation of Kentucky asked to file a "Brief of Amicus Curiae" ("friend of the court") in the case of Bourke v. Beshear, a challenge to the Kentucky and federal laws which allow the state to ignore legal same-sex marriages performed elsewhere. U.S. District Court Judge John Heyburn granted the Foundation's request and their brief was filed soon thereafter.

In their brief, essentially meant to supplement the state of Kentucky's brief defense of its own laws, the Foundation responds to the Plaintiff's argument that there exists no rational basis - no logical reason - for Kentucky to prohibit recognition of valid out-of-state marriages based on the sex of the couple's members. The Foundation argues that there is in fact a rational basis for such laws, consisting of tradition,  "responsible procreation and childrearing," and caution in the face of "watershed changes" to state definitions of marriage.

You can read their full brief here.

Generally, the parties to a lawsuit do not respond to amicus curiae briefs. The presiding judge or judges can weigh them as they see fit, within the context of the primary arguments made by the plaintiff and defendant. However, Judge Heyburn issued an order granting the Bourke Plaintiffs (whom I, along with several other attorneys, represent) the opportunity to respond to the Foundation's brief. The Bourke Plaintiffs filed a response to the Foundation on Monday, February 3. You can read it here.

Our response speaks for itself, and I won't rehash it all here. You can read it for yourself or see what others have written about it. What I will try to do here is put the Foundation's arguments into the context of the larger, national fight for marriage equality.

I generally refer to such arguments as the "Think of the Children" strategy. The general premise is this: marriage should be limited to one man and one woman because the government has an interest in responsible parenting, and one man and one woman, living together in stable monogamy, are best equipped (biologically and socially) to be responsible parents. Therefore, the logic goes, the government may refuse to allow same-sex couples from marrying because they, as couples, are biologically unable to reproduce and are less able to responsibly raise children.

This argument has been presented in nearly every legal fight over same-sex marriage in the United States since 2003, when the Massachusetts Supreme Court ruled its own state ban to be unconstitutional. That court, in the case of Goodridge v. Department of Public Health, more than a decade ago addressed the same argument that the Foundation presented this year in Kentucky, finding:

If procreation were a necessary component of civil marriage, our statutes would draw a tighter circle around the permissible bounds of nonmarital child bearing and the creation of families by noncoital means. The attempt to isolate procreation as "the source of a fundamental right to marry," overlooks the integrated way in which courts have examined the complex and overlapping realms of personal autonomy, marriage, family life, and child rearing. Our jurisprudence recognizes that, in these nuanced and fundamentally private areas of life, such a narrow focus is inappropriate.

440 Mass. 309, 333 (Mass. 2003). The Massachusetts court ruled that the state government ultimately failed to articulate any rational basis for the prohibition of same-sex marriage (but not for lack of trying). Same-sex marriage has since been legal there for more than a decade.

The proponents of California's doomed Proposition 8 made the same argument as the Foundation, in the line of cases that eventually became known as Hollingsworth v. Perry. At the federal Court of Appeals level (the step below the U.S. Supreme Court), the Ninth Circuit also found that the state's purported interest in responsible procreation formed no rational basis for the prohibition of same-sex marriage:

Even if California had an interest in preferring opposite-sex parents to same-sex parents — and the evidence plainly shows that California does not — Proposition 8 is not rationally related to that interest, because Proposition 8 does not affect who can or should become a parent under California law...

To the extent proponents seek to encourage a norm that sexual activity occur within marriage to ensure that reproduction occur within stable households, Proposition 8 discourages that norm because it requires some sexual activity and child-bearing and child-rearing to occur outside marriage.

Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 1000 (N.D. Cal. 2010). The U.S. Supreme Court had an opportunity to review the Ninth Circuit's findings but instead found the proponents of Proposition 8 lacked standing to challenge the initial trial court's ruling. Same-sex marriage is once again legal in California as a result.

Even more recently, a federal district court judge in Utah had the opportunity to address the Foundation's general argument once again. Judge Robert J. Shelby wrote:

[T]he State maintains that same-sex couples are distinct from opposite-sex couples because they are not able to naturally reproduce with each other. The State points to Supreme Court cases that have linked the importance of marriage to its relationship to procreation...

The court does not find the State's argument compelling because, however persuasive the ability to procreate might be in the context of a particular religious perspective, it is not a defining characteristic of conjugal relationships from a legal and constitutional point of view. The State's position demeans the dignity not just of same-sex couples, but of the many opposite-sex couples who are unable to reproduce or who choose not to have children. Under the State's reasoning, a post-menopausal woman or infertile man does not have a fundamental right to marry because she or he does not have the capacity to procreate. This proposition is irreconcilable with the right to liberty that the Constitution guarantees to all citizens.

Kitchen v. Herbert, 2013 U.S. Dist. LEXIS 179331 (D. Utah Dec. 20, 2013) (currently being appealed before the Tenth Circuit Court of Appeals). Judge Shelby found that Utah's prohibition of same-sex marriage similarly had no rational basis. While a state government may in fact have a legitimate interest in "responsible procreation," excluding same-sex couples from marriage is not a logical or rational method to achieve it.

The Foundation is nevertheless right about one thing: as long as our state governments have an interest in the security and stability of the people within their borders, they have a legitimate interest in promoting stable family structures. The health and well-being of children is critical to the strength and longevity of any human community. That position is certainly difficult to refute.

What is far less difficult to refute, however, is the argument that a reasonable, logical, and constitutional way for state governments to promote stable family structures is to totally exclude same-sex couples from the formal institution of marriage. Since 2003, no state or third party proponent of discriminatory marriage laws has been able to convince any court that it even has a rational, logical basis for such, let alone a significantly compelling reason that would somehow excuse an otherwise unconstitutional law.

It remains unclear whether the Foundation will be the first to succeed.

In the case of Bourke v. Beshear, all parties now anxiously await Judge Heyburn's ruling. The Plaintiffs are hopeful that he will follow the lead of judges in states all across the country (and in the U.S. Supreme Court) and rule against laws that discriminate against same-sex couples for no good reason. The Family Foundation no doubt hopes for the opposite result. And the Defendants, well, I'm not sure what the Defendants are hopeful for, but I'm certain they're just as anxious for a ruling as the rest of the interested parties.