Bourke v. Beshear - Sixth Circuit Briefs Filed

The Kentucky same-sex marriage recognition case, Bourke v. Beshear, is currently before the U.S. Court of Appeals for the Sixth Circuit. Both parties have now filed their principal briefs, laying out all their arguments about why the district court below either got it wrong or got it right when it ruled Kentucky's ban on recognizing valid marriages from other states violates the U.S. Constitution.

Defendant Steve Beshear, as the losing party below, filed his brief first. In it, he made the following arguments:

  • The state of Kentucky has the ultimate authority to define its own marriage laws free of outside intervention.
  • The 1972 case of Baker v. Nelson is binding precedent, meaning federal courts have no jurisdiction over state marriage law challenges.
  • Same-sex couples are not similarly situated to opposite-sex couples, so their exclusion from marriage is not an equal protection violation.
  • Homosexuality and gender orientation are not protected classifications so a low standard of judicial scrutiny is appropriate.
  • There is a fundamental right to opposite-sex marriage, but not same-sex marriage, so a low standard of scrutiny is appropriate.
  • Kentucky has an interest in procreation and stable birth rates, and excluding same-sex couples from marriage recognition furthers that interest.
  • It is not the state's burden to disprove that same-sex couples can be good parents.
  • The state can make inexact distinctions between people to further its legitimate goals.

Beshear's brief was not received well by the local or national press. Specifically criticized was the argument that excluding same-sex marriages from recognition promotes procreation among opposite-sex couples.

Yesterday, with a brief principally written by me (full disclosure), and with invaluable and extensive contributions from my colleagues Dan Canon and Laura Landenwich, the Bourke plaintiffs responded to Beshear's arguments. The brief contests each of the above points, particularly the heightened scrutiny and procreation arguments.

You can read the full brief here.

Next in the appellate process: Beshear gets a chance to reply to our arguments, and then oral arguments will be held in Cincinnati at the Sixth Circuit courthouse during the first or second week of August.