Kentucky’s Bad Arguments on Marriage Equality

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.

You notice what’s missing in this argument? How about even a hypothetical causal argument for why allowing gay people to marry will have any effect whatsoever on procreation or “stable birth rates”? What exactly do they think is going to happen here? That once we allow gay people to get married, straight people are going to suddenly stop getting married or stop having children? That’s the only possible way this argument would make any sense at all, but what intelligent human being could ever make such a moronic statement with a straight face?

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.”

POPULAR AT PATHEOS Nonreligious
What Are Your Thoughts?leave a comment
  • colnago80

    In addition, neither the State of Kentucky or any other state prohibits opposite sex marriage of women post menopausal or couples where the man is infertile. If their procreation argument was anything but horsepucky, the government would also be prohibiting those marriages too.

  • http://artk.typepad.com ArtK

    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.

    Some days, I think that you’re giving them far too much credit. It wouldn’t surprise me one bit if they were working from a truly held belief that if SSM is allowed, then heterosexuals will stop getting married and having children. It’s so obvious to them that they don’t put it in their pleadings. Of course everyone understands that’s the truth, amirite?

  • Al Dente

    a truly held belief that if SSM is allowed, then heterosexuals will stop getting married and having children.

    The Commonwealth of Kentucky* does seem to think that allowing same-sex marriage will mean that heterosexual couples will stop having babies. There’s a logical fallacy in there somewhere, possibly an argumentum ad dumbshitum.

    *Kentucky, like Pennsylvania, Virginia, and Massachusetts, isn’t a mere state, it’s a commonwealth.

  • donkensler

    Rational basis analysis is absurdly easy for a law to pass muster under, and these laws can’t even get over that hurdle. You know you’re fighting a losing battle when your best arguments are so bad the courts all essentially laugh you out of the courtroom.

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    To be fair, gay marriage is pretty bad. My kid got gay marriage from a raccoon. Luckily we caught it early enough that the gay marriage shots worked, but it was really touch and go for a while there.

  • http://atheist-faq.com Jasper of Maine

    Since Maine started allowing gay marriage, procreation rates have plummeted to zero. May be related to the zombie apocalypse that ensued shortly after.

  • corwyn

    So if stable birth rate is the important factor, does the government propose to limit, or require, straight marriages, should that rate become unstable?

  • anat

    From reading the responses of some conservative Christians who appear to be True Believers the argument is supposed to be something along the following line:

    1) Sexual orientation is totally a choice, people can switch at any given time.

    2) Sex with men is orders of magnitude more awesome than sex with women (although Totally Wrong, God Said So!!!).

    3) The only reason any men these days choose to be or remain heterosexual is that with a woman they can get married and be assured constancy (and whatever homekeeping activities the woman in question has to offer.)

    4) If marrying a man becomes an option lots of men would choose to become gay because they will be able to get all they want from a wife from a husband, plus More Awesomer Sex.

    Not that the posters I base this ‘reasoning’ on ever wrote it all down in these terms, but that was the most coherent summary of their various attempts at making an argument that I could come up with.

  • StevoR : Free West Papua, free Tibet, let the Chagossians return!

    Kentucky’s Bad Arguments on Marriage Equality

    Do the homophobes have any other sort of arguments than bad?

  • marcus

    Modusoperandi @ 5

    I am pretty sure it ‘s incurable, kind of like the chicken pox and shingles thing. Sure, you think everything is hunky dory then; Bam! You’re sitting down for Thanksgiving dinner and your kid shows up at the door with their college “room-mate”. So, you should probably not let your son go to college. It’s a hotbed of deviant behavior anyway. And libruls! No wait… those are the same.

  • garnetstar

    I read that some anti-equality bigots are whining that Kentucky’s arguments are so illogical that they’re actually trying to lose the case, while pretending to defend the law.

    Um, aren’t those the same arguments that all the anti-equality states are making? Yeah, I thought so. When the bigots themselves realize that their only arguments are ridiculous, the end is nigh.

  • http://www.facebook.com/profile.php?id=1360322113 aaronbaker

    And there’s this reductio ad absurdum: if procreation is such an important state interest with regard to marriage, shouldn’t Kentucky be able to restrict or even ban marriage for people who are sterile, or women who,ve passed their childbearing years?

  • Alverant

    Motor vehicles provide critical services like police, fire protection, ambulances, etc therefore to allow motor vehicles to be used for things like driving to the store goes against the purpose of a motor vehicle and should be banned.

    Same logic, different object.

  • dingojack

    Does that mean that if KY’s population booms, the state legislature could decide one family; one baby? Being regulating procreation is a legitimate state’s interest and all.

    😉 Dingo

  • steve84

    People fucked and procreated for hundreds of thousands of years before there was marriage. And if marriage were abolished tomorrow, they’d still fuck and procreate.

  • tiredofusernamerules

    Those of us in Kentucky have various theories about the guv’s idiotic appellate brief. 1) He’s giving political cover to his son, Andrew Beshear, who is running for AG; 2) He’s giving political cover to Dems in the Kentucky House, who are in danger of being replaced by Reps as the majority party. There are some who have posited that he actually wants the case to lose (most of my friends and I do not subscribe to this theory). Additionally, the private law firm charged with doing the appeal is said to represent coal interests, and this may be a way to pay them back for past support.

    I have yet to hear a single person, lawyer, law professor, or otherwise, who thinks it’s anything but a ridiculous argument, unless you count Martin Cothran of the Family Foundation of Kentucky, who generally is considered to be a sanctimonious prick.

  • http://www.ranum.com Marcus Ranum

    I have a vesectomy. I guess I shouldn’t try to get married in Kentucky?

  • iknklast

    Personally, I think the state has overdone its job of encouraging procreation. In the present state of overpopulation, it is probably in the best interests of the state to encourage a slowing of procreation. (Cue the people citing the economy; I would like to point out that the economy is man-created and can be remade. The ecological system? Not.)

  • caseloweraz

    Procreation is vital to continuation of the human race, and only man-woman couples can naturally procreate.

    I like the way the brief keeps repeating this truism and the following clause, somehow believing that, with the implicit conclusion that same-sex marriage lowers birth rates, it forms a valid syllogism. How many times until reinforcement by repetition occurs?

    THIS JUST IN: Kentucky prohibition of same-sex marriages struck down — human extinction likely.

    Lexington, Ky. — Officials for the State of Kentucky affirmed here today that their appeal of the federal court ruling that struck down the state’s ban on same-sex marriages had been denied.

    Experts consulted by this newspaper predicted the imminent extinction of humanity. Dr. Noan C. Kwittur of Liberty University explained that a stable birthrate cannot be sustained when same-sex marriages are permitted, because the birthrate inevitably plunges.

    Our reporter was not able to ask how soon this plunge in birthrate would occur and why it would necessarily plunge rather than rise, because Dr. Kwittur received a cell phone call from his wife at just that moment reminding him that it was that time of the month and he should stop by the pharmacy on his way home to pick up her pills. Dr. Kwitter left hurriedly.

  • Nepenthe

    neither the State of Kentucky or any other state prohibits opposite sex marriage of women post menopausal or couples where the man is infertile.

    6 US states actually permit certain different-sex couples to get married only if the couple is infertile.

  • Olav

    Kentucky:

    Only man-woman couples have the ability to naturally procreate.

    I know at least one married lesbian couple who procreated naturally. The assistance of the brother of one of them was involved. But I suppose a solution like that something would be almost unfathomable to the lawyers in Kentucky.

  • ambassadorfromverdammt

    – A birthrate of zero is stable.

    – What is the out-of-wedlock birthrate in KY?

    – Modus Operandi – gay marriage is fatal. Every time a state/province/country/whatever gets gay marriage, a little bit of bigotry dies.

  • imthegenieicandoanything

    “Procreation is “fundamental to the very existence and survival of the race” and, therefore is a legitimate state interest. ”

    Having the gumption – or was it despairing idiocy? – to write, much less offer, such an argument might have boggled my mind 20 years ago.

    Now? I just shrug, without even a grim laugh. All conservatives can just fuck off – they aren’t recognizable human in their speech anymore.

  • robnyny

    “Kentucky, like Pennsylvania, Virginia, and Massachusetts, isn’t a mere state, it’s a commonwealth.”

    As is Puerto Rico.

  • royandale

    In Kentucky, as in so many other states, SSM will only happen in spite of state laws, because none of them are going to pass a law that allows it. So, it remains for the courts to establish through these lawsuits (and their attendant amusing defenses like Kentucky’s) that prohibiting SSM is not equal treatment and is therefore unconstitutional. But the appeals will have to be followed through until exhausted.

    Of note here, btw, is that Kentucky’s attorney general refused to sign on to a defense of the law. The governor saw that he had to appeal in order to protect his party’s prospects in elections this year, so he hired a private firm to handle the appeal. He’s spending a lot of money he shouldn’t be spending in the attempt, but other than that we can all pretty much see how this will end up. Then we can all quit paying so damn much attention to the issue and get on with really important work, like speculating on where the Malaysian airliner went, or something.

  • Forbidden Snowflake

    Nepenthe:

    6 US states actually permit certain different-sex couples to get married only if the couple is infertile.

    Unless consenting adult incest is what you’re alluding to, I’m legit confused.

    Regarding the OP:

    Even if we accept the focus on procreation as reasonable, this doesn’t justify the focus on natural procreation. If the law doesn’t see the bond between parent and adopted child differently than the bond between parent and biological child, it shouldn’t value legal procreation via adoption any less than biological procreation.

  • colnago80

    Re Forbidden Snowflake @ #26

    It is my information that these laws are targeted at people who are severely retarded (e.g. IQ <75) on the theory that intelligence is, at least in part, inheritable and that low IQ people have bad genes which will presumably lead to descendants with the same bad genes.

  • jameshanley

    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 fact if procreation is such a critical interest, then we should promote more methods of doing it. On the off chance that natural procreation isn’t suffucient to meet our future population needs, we should encourage artificial means of procreation, and should support everyone willing to take on the task of raising those kids. If you restrict procreation to a single means, and a limited group, you’re implicitly admitting thay it’s not critically important.

  • http://artk.typepad.com ArtK

    And now, we give you the Pocahontas Defense

  • http://www.jafafahots.com Jafafa Hots

    Yeah, that’s the real problem.

    We’re not making enough new people.

    We should be on the endangered species list.

  • Nepenthe

    @colnago and Forbidden Snowflake

    The laws are those involving consenting adult incest.