A federal appeals court is hearing an appeal by the state of Kentucky of a ruling that struck down that state’s law banning same-sex marriage. In a brief filed with the court, the state confirms that the only arguments that can be offered for such a ban are really, really bad.
Man-man and woman-woman couples are not similarly situated to man-woman couples in a significant material aspect. Only man-woman couples have the ability to naturally procreate. As set forth more fully below, procreation is reasonably related to the object of Kentucky’s traditional marriage statutes. This distinction between same-sex couples and man-woman couples is critical and provides a lawful basis to treat same-sex couples differently than man-woman couples with regard to the institution of marriage without offending the Equal Protection Clause.
But why is this such a “critical” distinction? They don’t bother to say. But if their arguments about the importance of marriage in protecting children are true — and I think they are — why does it matter whether one procreates naturally or artificially? Do children conceived by artificial insemination or surrogacy deserve less protection? Do their lives not matter as much? And of course, lots of gay people have and will continue to procreate naturally anyway.
Procreation is vital to continuation of the human race, and only man-woman couples can naturally procreate.
Again, so what? If procreation is vital to the continuation of the human race — duh — then why does it matter whether that procreation is natural or not?
In contrast, it cannot be said that gender has no bearing on the government’s interest with regard to marriage. Man-man and woman-woman couples cannot procreate. Traditional man-woman couples can. Procreation is a legitimate interest of the Commonwealth.
Procreation is “fundamental to the very existence and survival of the race” and, therefore is a legitimate state interest. Encouraging, promoting, and supporting the formation of relationships that have the natural ability to procreate furthers the Commonwealth’s basic and fundamental interest in ensuring the existence of the human race. This alone should be sufficient to satisfy any standard of review. The Commonwealth, however, has an additional interest in promoting procreation – supporting long-term economic stability through stable birth rates.
This is why they don’t provide that causal argument, because they know how unbelievably ridiculous it is and that it would provoke nothing but laughter. So they just allude to it, hint at it, without ever stating it outright. “Gay marriage is bad because straight marriage is good” is an utterly illogical claim but it is almost always made in such disputes because, as I’ve pointed out many times, what else do they have? They can’t come out and give the real reason for the law because the real reason is “EWWWWW. ICKY!” And that’s not a compelling legal argument at all.
The rational basis test requires that the law being challenged be “rationally related” to a state interest. But if the only argument you have for it is as blatantly irrational as this one, you’re basically admitting “we got nothing.”