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READ IT HERE: Kentucky same-sex couples file opening brief in Supreme Court marriage cases

LGBT Legal Cases Marriage equality Marriage Equality Trials

Same-sex couples in Tennessee who are challenging Kentucky’s ban on licensing same-sex marriages along with its ban on recognizing legally valid same-sex marriages performed in other states have filed their opening brief in the Supreme Court. The ACLU and the Stanford Law Clinic wrote the brief. The Kentucky case consists of two cases, Bourke v. Beshear and Love v. Beshear. Both challenge different aspects of the ban.

You can read the brief here:

14-574 Kentucky Plaintiffs' SCOTUS Brief by Equality Case Files

Thanks to Equality Case Files for these filings

19 Comments

  • 1. DrPatrick1  |  February 27, 2015 at 8:11 am

    KY couples, NO?

  • 2. davepCA  |  February 27, 2015 at 11:36 am

    Yeah looks like a typo in that first sentence…

  • 3. Wolf of Raging Fires  |  February 28, 2015 at 11:38 am

    Wow, this brief is very well-written. I didn't read it in its entirety (it's very long), but it's really well done and I applaud the author(s) of it for their efforts. If I wasn't already convinced, which obviously I am, haha, then I would be by this brief alone. Marvelous.

  • 4. DrBriCA  |  February 28, 2015 at 12:00 pm

    I like that they once again re-word the SCOTUS version of the questions and instead state that the "Fourteenth Amendment Requires a Close Examination of the Purported Justifications for Kentucky's Marriage Ban."

    The Amendment may not require licenses to be granted to same-sex couples, but it certainly requires a review of any due process or equal protection infringements!

  • 5. RnL2008  |  February 28, 2015 at 12:18 pm

    The anti-gay idiots will try ANYTHING to make their argument look legit, but unfortunately it's just more twisting of their position to make them sound intelligent……epic failure if ya ask me!!!

  • 6. 1grod  |  February 28, 2015 at 5:16 pm

    Rose and Bri – A must read: Rose: in the thread related to Michigan, you said that these and other briefs become indistinguishable blah, blah, blah . While troubled by your observation, I had to reluctantly agree until I read this opening brief. The difference that makes a real difference is how one marshals the argument and the clarity of the conclusions drawn. ACLU and Counsel of Record – Daniel Canon get an A: not only demolishing all of Judge Sutton's conclusions and the logic behind them but co-oped him and many of his observations to effectively advance their own. Should Judge Sutton read this brief with an open mind, he would be embarrassed by how easily it was done. Bri, I noted your observation that Counsel Canon reworded the Scotus version of the questions. What I might add is that it was deftly done… I would like to be a fly on the wall of a conference room with Judges Martha Daughtrey and Jeff Sutton present. Martha says to Jeff: "You old fool, how many times did I warn that your too cleaver-by-half opinion will be the ruin of you."

  • 7. RnL2008  |  February 28, 2015 at 6:19 pm

    Okay, I understand that, the plaintiff's arguments usually are well written, it's the defendants whose briefs are all the same, seems like if ya read one, you've read them all……..and for the person who opts to down-grade my comment……if ya don't agree then say so……personally, all the thumbs up or down means is just what one feels is a good response or a bad one and my comment above is strictly an opinion.

  • 8. A_Jayne  |  February 28, 2015 at 7:29 pm

    What I considered to be some key points in this brief: (The "Re:" notes in parentheses at the beginning of some lines are my own.) (Also, tho I didn't include it here, the brief includes the line "These are not the arguments of serious people." I laughed out loud at that.)

    (Re: Bowers:) There, this Court asked whether due process confers “a fundamental right upon homosexuals to engage in sodomy.”

    The proper constitutional inquiry was whether an adult – regardless of sexual orientation – has a fundamental right to form an intimate relationship with another consenting adult that includes private sexual conduct.

    When, as here, a disfavored class comes to court seeking to enjoy a fundamental right on equal terms with – and for exactly the same reasons as – other similarly situated persons, the Constitution demands more from the state than a simple reliance on tradition. Instead, it requires the state to explain why “extending] constitutional rights and protections to people once ignored or excluded” would actually subvert some legitimate state interest that cannot otherwise be furthered.

    [T]he State must demonstrate that the classification is reasonably adapted to the purposes for which the state desires to use it.

    States should not be able to impose such an exclusion without showing that it is at least reasonably adapted to further some substantial goal.

    (Re: quoting from Sutton's ruling) The court of appeals resisted heightened scrutiny and instead asserted that the marriage ban must be presumed constitutional and upheld “[s]o long as judges can conceive of some ‘plausible’ reason for the law,” no matter how “unfair, unjust, or unwise ” the law may be.

    Discrimination warranting close judicial scrutiny “rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.”

    (Re: the "procreation" argument:) It is all the more unjust and ineffectual to punish the child in order to influence not the child’s parents, but someone else’s parents. (Emphasis in the original.)

    The “procreation theory,” in short, is “so riddled with exceptions” and inconsistencies, Eisenstadt v. Baird, 405 U.S. 438, 449 (1972), that it cannot possibly sustain Kentucky’s marriage ban.

    (Re: calling on the possible legacy of the Roberts Court?) Any decision from this Court crediting a conception of marriage so divorced from reality would wilt in the glare of the public eye and mystify Americans for generations to come.

    But when a state brands a disfavored group of families as sub-optimal in the face of the overwhelming scientific consensus to the contrary, it is not engaging in rational speculation. It is simply enacting into law the sort of irrational prejudices that the Constitution forbids.

  • 9. 1grod  |  February 28, 2015 at 8:18 pm

    A_Jayne: I too like the framing of the 'procreation argument. – The notion that some children should receive fewer legal protections than others based on the circumstances of their conception is not only irrational; it is constitutionally repugnant. “Obviously, no child is responsible for his birth.”….. . Thus, “penalizing the. child is an ineffectual as well as an unjust way of deterring [his or her] parent.” …It's all the more unjust and ineffectual to punish the child in order to influence not the child’s parents, but someone else’s parents. P62 G

  • 10. Wolf of Raging Fires  |  February 28, 2015 at 8:20 pm

    I really liked that as well.

  • 11. VIRick  |  February 28, 2015 at 10:23 pm

    "These are not the arguments of serious people."

    The original state of Kentucky's defense, at the District Court level, hinged very heavily on their foolishly assinine pro-creation argument, an argument which provoked Judge Heyburn to issue his signature quote in summation of it:

    "These are not the arguments of serious people."

    Despite this put-down, the state has doggedly continued to defend itself with the same lame pro-creation argument, apparently having nothing else better to offer.

    Sutton then attempted to change the color of the lip gloss on the pig-in-the-poke for them, but in the final analysis, Judge Heyburn's quotable summary will prevail.

  • 12. Rick55845  |  March 1, 2015 at 4:17 am

    Does anyone have a link to a PDF version of this brief? I'd like to download it, but I'm not a scribd member.

  • 13. 1grod  |  March 1, 2015 at 7:42 am

    YEAH? Characterizing the Commonwealth’s amendment as a stop-gap designed to enable “further debate and voting" blinks reality…..: While is it possible in Kentucky to repeal a constitutional amendment, it is exceedingly rare. There has only been one instance in Kentucky history when an amendment to the state constitution (adopted in 1891) has been repealed.

  • 14. Wolf of Raging Fires  |  March 1, 2015 at 8:45 am

    You can actually download Scribd for free and get these briefs through it, also, for free

  • 15. Rick55845  |  March 1, 2015 at 11:00 am

    That is true, but you have to register an account to do that, and I'd prefer not to.

  • 16. VIRick  |  March 1, 2015 at 4:17 pm

    TEXAS: Five-Times Married GOP State Rep Files Complaint Against Wrong Judge

    From an op-ed in the Fort Worth "Star-Telegram:"

    "State Rep. Tony Tinderholt of Arlington is a soldier, not a lawyer. For proof, look no further than his scrawled complaint against a state district judge. Tinderholt, a retired Army major elected by Tea Party voters, didn’t like the judge letting two women get married after 30 years. Only one couple got married, right after a different judge in a Travis County probate court threw out Texas’ ban on same-sex marriage. Tinderholt wrote out a two-paragraph complaint to the State Commission on Judicial Conduct. Then his staff called reporters. But Tinderholt’s publicity ploy had problems: First, he complained about the wrong judge and case. Then, he applied the law the wrong way in his complaint. Had he managed to apply the law the right way to the right judge, he still would have come out wrong. Tinderholt, 44 and in his fifth marriage, said in a published statement that he wants a judicial system that “respects the laws” and separation of powers, as if judges shouldn’t declare the Texas Legislature’s laws unconstitutional without prior permission from the Legislature."

    Tinderholt's current wife (#5) is a former Dallas Cowboys cheerleader.

    It was Probate Judge Guy Herman who ruled the Texas ban to be unconstitutional and state District Judge David Wahlberg who ordered the Travis County Clerk to issue a license. Judge Herman did notify Texas Attorney-General Ken Paxton back in January. Paxton declined to get involved in the case.

  • 17. VIRick  |  March 1, 2015 at 4:30 pm

    “further debate and voting"

    Sutton has his head up his ass. The debate has been over for quite a while. Voters voting away other people's rights is an unconstitutional exercise in futility and has no place is current constitutional law.

  • 18. VIRick  |  March 1, 2015 at 7:15 pm

    Leave it to Joe.My.God. to find all the "good" stuff. Check out the Craigslist ads from the recent anti-gay CPAC conference:
    http://washingtondc.craigslist.org/search/ppp?que

    I particularly like the 28 year-old CPAC bottom hosting at Gaylord.

  • 19. RemC_Chicago  |  March 2, 2015 at 7:35 am

    Rick, send me an email and I'll attach the PDF for you: remc730@gmail.com

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