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READ IT HERE: Opening brief in Kentucky marriage equality case in Sixth Circuit

LGBT Legal Cases Marriage equality Marriage Equality Trials

Kentucky state sealGovernor Steve Beshear has filed his brief in Bourke v. Beshear, the Sixth Circuit Court of Appeals case challenging Kentucky’s refusal to recognize same-sex marriages performed outside of the state. The district court struck down the ban on recognition, and after Attorney General Jack Conway announced that he wouldn’t defend the ban, Governor Beshear hired outside counsel to represent the state.

The brief is the first in the Kentucky case, although every state within the Sixth Circuit now has a marriage case pending in the appeals court.

You can read the brief here, via Kathleen Perrin and Equality Case Files:

14-5291 #21 by Equality Case Files

For more information on Love v. Beshear (formerly Bourke v. Beshear) from The Civil Rights Litigation Clearinghouse, click here.


  • 1. KarlS  |  May 8, 2014 at 8:33 am

    Yawn…same old shit.

  • 2. TKinSC  |  May 8, 2014 at 6:00 pm

    If it ain't broke….

  • 3. TKinSC  |  May 8, 2014 at 8:15 pm

    With the exception of me. I'm pretty broke often.

  • 4. TKinSC  |  May 8, 2014 at 8:35 am

    Anything groundbreaking in the State's arguments? I saw a headline that it was a lot of affirmative action justification. I don't want to read it. Can someone please post their take on it?

    Ask and ye shall receive. Thanks for the new post. Was getting worried. As davep said it doesn't usually go this long without a post.

  • 5. TKinSC  |  May 8, 2014 at 10:48 am

    This was meant for a Michigan post. Sorry for any misunderstanding.

  • 6. Lymis  |  May 9, 2014 at 7:18 am

    It reads as a clear and definite refutation of all attempts to ban opposite sex marriage, because both the state and its citizens have reasons for opposite sex couples to marry.

    Since nobody is actually trying to ban opposite sex marriage, it's pretty pointless.

    They flatly assert that same-sex marriage isn't real marriage so as to declare that the 14th Amendment cannot apply since while actual marriage is a fundamental right, same-sex marriage, since it is obviously something else entirely, can't be a fundamental right.

    And they bring up all the reasons gay couples shouldn't be allowed to marry (can't procreate, etc) while completely ignoring that for every state reason, there are straight couples who meet that same criterion, but are free to marry.

    This will only fly if the appeals court has already decided ahead of time to rule against us. Otherwise, they're looking at another epic smackdown.

  • 7. TKinSC  |  May 10, 2014 at 10:25 am

    Thanks for the recap Lymis. Thumb up for you.

  • 8. Taylor  |  May 8, 2014 at 9:18 am

    Didn't read much of it, but did anyone find the writing surprisingly simple/elementary? It just struck me as if they were just "going through the motions" without any real belief behind what they were saying.

  • 9. TKinSC  |  May 8, 2014 at 6:27 pm

    It takes more passion to perform a difficult task. In an easy task such as explaining why not recognizing same-sex "marriage" is constitutional, all one needs to do is go through the standard motions.

  • 10. TKinSC  |  May 8, 2014 at 8:00 pm

    This is me in closet-case mode again. Please ignore me when I'm like this. I go back and forth like a revolving door. I hope to be fully out eventually.

  • 11. TKinSC  |  May 8, 2014 at 8:18 pm

    This is me in selective denial disregarding how 10 judges have ruled for marriage equality because, you know, they're all wrong and I'm all right. Just like I thought the anti-equality side would win in Windsor. Gosh, I'm so mixed up and conflicted.

  • 12. Deeelaaach  |  May 9, 2014 at 12:18 am

    The cynic in me says this is an act. The part of me that sees that same internalized homophobia that I still find at times in previously unknown places identifies with what you are saying. The problem with saying that you are a closet case and you are broken all the time (only to me, I can't speak for anyone else) smacks of being disingenuous, even if it is true. That's on me, not you.

    One of your posts struck me as a little unusual. It is this, in the Alaska story: "Guest: I'm a closet-case. What would help me with that?" It's not the part about being the closet case. It's the request. There's a part of me that wants to dearly to believe that it's not an act. It's the part of me that wants to believe that instead of being only a troll who isn't asking that question only for the sake of asking, you are instead one of the millions whose mind is changing about ME. As I think you've said, old habits die hard. I think it would be okay to say that many of us on this site have dealt with varying levels of internalized homophobia. Personally I can recall yelling at a gay couple holding hands, along with all the other teens on the bus on my field trip. This was when I was a teen being raised in a religious family in California's "south" (the Central Valley to some). Now the shoe is on the other foot. Karma is a bi***. And I offer my apologies to that couple, wherever you are.

    What would help you with that? I can't answer that. But perhaps staying on this site and posting and asking questions could help you with that. Neither do I want you to "buzz off." I do want you to learn what we, and perhaps you, have to contribute, if that is truly what you want to do or need to do. "What would help [you] with that?" If I answered that with specifics, I'd be answering the question not of what would help you with that but what would help me with helping you or something along those lines.

    I think if your question is genuine, I can try to answer generally but even that would involve me in some way. But if your question is genuine, I do want to try to answer with *something.* For example, I note that repeating that you are a closet case shuts down discussion. That's my experience of it anyway. See the problem? In answering the question I can't always remove myself entirely. I can truly only answer about how I react to your posts. Once again, that's on me, not you. So perhaps I can suggest the following: Ask questions – I can't emphazize that one enough. Tell us your beliefs and where you got them from in your own experience. Ask us what we believe and why. Have that open mind everyone talks about. Try to think critically about what you have been taught and what your opponents think. Example: some say there is no right to marriage equality in the Constitution. Find the words "traditional marriage," heterosexual marriage, biblical marriage etc in the Constitution. The argument is so laughable it falls on its face with a simple text search. And yes, my mother really told me ME was unconstitutional but stopped with that simple challenge. Then she came up with other excuses.

    All of the above would help *me* in your situation. Only you know what would help you, so sorry, I really can't answer that part of your question. But note that on this site, we're all answering that same question – what will help us? And when you come across someone – perhaps even me – that doesn't understand where you're coming from because they're answering that question for themselves and not you, you still need to do what works for you. But if I may suggest, cliched as it is – if you really do want to learn, as they say: Stick around. You just might learn something.

  • 13. Pat  |  May 9, 2014 at 1:50 am

    Actually, it seems rather clear (or so I assumed) that there is another person who has fun posting as "TKinSC" all the message about "I'm a closet case / I'm stupid /etc." after all the messages from the real TKinSC.
    And these further messages are, frankly, even more annoying than the original bigoted posts.

  • 14. Michael Grabow  |  May 9, 2014 at 6:50 am

    That is definitely what I assumed was going on with those posts.

  • 15. TKinSC  |  May 10, 2014 at 10:40 am

    Thank you Deeelaaach. Very thoughtful response. I held off reading it until I had some time this weekend. I see what you're saying. I think you're empathizing quite well with where I'm coming from. Please don't be concerned that you're putting yourself too much into it. I can tell the difference.

    Thumb up for you.

  • 16. Lymis  |  May 9, 2014 at 7:25 am

    Not only that, but even though I'm NOT a lawyer, I've read enough of these briefs and rulings to notice when someone is playing fast and loose with legal terminology.

    They did the "we'll pretend we don't understand the legal meaning of the term 'rational'" thing that we see so often. Legally, it's about the legitimate connection of two ideas – a rational relationship between them. It's become so trendy among the anti-gay forces to pretend that it's saying that opposing it is "irrational", but it's still jarring to see that in a legal brief.

    It's rational to eat pizza, and it's rational to drive safely. There is no rational connection between the ideas, especially not to the extent of saying that a pizza dinner increases traffic safety. Most of these arguments are similar. There is no rational connection between the idea of supporting straight people in responsibly rearing any children they have and banning gay couples from marriage – and yet the constant assertion that those who don't support same-sex marriage are being told that opposite sex marriage is "irrational."

    It's one thing to try to float legal bullshit past the public. It's another thing to insult the intelligence and professional competence of Circuit Court judges.

  • 17. Retired_Lawyer  |  May 8, 2014 at 9:19 am

    Beshear's brief is competent work as far as it goes. There are three serious flaws. First, counsel makes no clear distinction between marriages that already exist and couples seeking a right to marry. All of his arguments deal with the latter. None is specifically directed at the actual, already-married plaintiffs, and their children. Second, his only justification for escaping an equal protection requirement is the assertion that "only man-woman couples can naturally procreate." That leaves him wide open to attacks that the argument is irrelevant,
    and untrue (step-children, adopted children, fertile lesbians, et al.). Third, like many of the State parties, he claims a "rational basis" for unequal treatment, but resists any attempt at all to determine if there is truth to the claim. He doesn't have to persuade or prove. Everyone else is somehow not allowed to dissuade or disprove by any method at all . The State parties go too far here, it seems to me. Every plebiscite would be immune from Constitutional standards under the rubric they would create. Finally, in this particular brief, the long concluding passage about birth rates simply baffles. It sounds like an argument against contraception. I look forward to the response of the plaintiffs.

  • 18. TKinSC  |  May 8, 2014 at 6:45 pm

    "First, counsel makes no clear distinction between marriages that already exist and couples seeking a right to marry. All of his arguments deal with the latter."

    No distinction need be made. For the same reasons that Kentucky doesn't grant marriage licenses to same-sex couples, Kentucky has no interest in recognizing out-of-state "marriages" of same-sex couples. To put it more bluntly, as far as Kentucky is concerned, same-sex marriages *don't* exist.

    "Second, his only justification for escaping an equal protection requirement is the assertion that 'only man-woman couples can naturally procreate.' That leaves him wide open to attacks that the argument is irrelevant, and untrue (step-children, adopted children, fertile lesbians, et al.)."

    Far from irrelevant, the procreative potential of opposite-sex couples is the very reason the state has an interest in marrying them. Indeed, it is the reason marriage exists in the first place. Same-sex couples cannot procreate (and it goes without saying that adoption is not procreation, and "fertile lesbians" may as well be infertile when trying to conceive with their partner).

    "Third, like many of the State parties, he claims a 'rational basis' for unequal treatment, but resists any attempt at all to determine if there is truth to the claim."

    If you were a lawyer, you should know that it is not the state's responsibility to prove a rational basis. It is the plaintiffs' responsibility to prove that no *conceivable* rational basis exists. This burden is not impossible to meet (see Romer v. Evans, which involved explicitly targeting homosexuals for unequal treatment) but it is very, very difficult.

    "Finally, in this particular brief, the long concluding passage about birth rates simply baffles."

    I'm not sure why it was included either. Perhaps it was an effort to show a possible negative consequence of not having a traditional definition of marriage. If so, I'm not sure why Japan and Germany were mentioned, since they do have such a definition. Perhaps it was to show that even in those countries that do have such a definition, if not enough opposite-sex couples take advantage of it, it could be detrimental. In any case, it does not hurt the state's case to bring it up, since it doesn't bear the burden of proof to begin with.

  • 19. TKinSC  |  May 8, 2014 at 8:19 pm

    Me babbling and trying to impress with my words but not realizing this is the wrong crowd to impress. Because I'm one in 314 million. What site should I post on?

  • 20. FedUpInMi  |  May 9, 2014 at 4:08 am

    One of Indiana's arguments against marriage equality (and it's marriage, not "marriage") is that the state doesn't prohibit gays and lesbians from marrying; they're free to marry members of the opposite sex.
    With bs logic like that,one must accept the premise that same sex couples can, indeed, procreate.
    As long as they do it with members of the opposite sex.

  • 21. Sagesse  |  May 10, 2014 at 4:30 am

    It will be such a relief when this debate is over and the anti-equality rhetorical games can be retired. Their arguments are based on false equivalence….

    marriage = family
    procreation = parenting

    Marriage is a fundamental right… that is somehow invalidated the day a person decides to marry someone of the same sex.

    Every LGBT person is a potentially acceptable parent in the eyes of the procreation-crazed, and can marry someone of the opposite sex and raise children, no questions asked. Somehow, however, marrying a person of the same sex calls their parenting skills into question.

  • 22. Lymis  |  May 9, 2014 at 7:34 am

    "Far from irrelevant, the procreative potential of opposite-sex couples is the very reason the state has an interest in marrying them. Indeed, it is the reason marriage exists in the first place."


    No state even asks a couple to state that they know of no reason they cannot procreate, much less actually requires medical proof of mutual fertility. It's irrational to clam that the state's primary interest in licensing something is based on something they don't even ASK about, much less enforce.

    Mutually infertile couples marry all the time. A couple in my family was a man who'd had a vasectomy marrying a woman who'd had a hysterectomy. No procreation there. Post-menopasual women may marry.

    Further, couples are also allowed to remain childless or to adopt children without having their marriages annulled. If the only reason the state has for marrying someone is their ability to procreate together, the state would affirmatively act to annul all marriages that don't involve procreation, or, more sensibly, to wait until a child is born to grant the rights and privileges that are associated with marriage.

    The state issues learner's permits to people who wish to learn to drive – and the are allowed access to some, but not all, of the rights given to licensed drivers, after having proven that there is no impediment to them being able to be fully licensed at some point in the future.

    If procreation were the only reason for civil marriage, the same would follow logically. There would be a civil betrothal license requiring both parties to state that they know of no reason they cannot procreate and that they fully intend to do so. Civil marriage would be allowed once it was proven they had actually met the requirement for marriage – having a child together.

    The fact that this idea is seen as absurd, intrusive, irrelevant, and even sacrilegious all points to the fact that no, NOBODY actually sees marriage as "only about" procreation.

  • 23. SeattleRobin  |  May 9, 2014 at 9:31 pm

    The idea that if the states truly believe marriage is about procreation they'd have a two step process, with only the actual procrators receiving full benefits, is the best response I've ever seen to that argument. Maybe some of these equality lawyers should start using it in briefs. It quickly and succinctly illustrates the inherent flaw in that position.

  • 24. SeattleRobin  |  May 9, 2014 at 10:16 pm

    I didn't find the section of birth rates that baffling. It read to me as a means to shore up exactly why procreation is important to state policy, and actually the economic impact of a falling birth rate is a good argument in that sense.

    But where that argument fails in regards to marriage is that if encouraging people to procreate is an important government goal, then the answer is to encourage as many people to marry as possible. Since the birth rate is not tied to "naturally procreating married couples", but to how many babies are born, it doesn't matter if same sex couples are using other methods to have children.

    I don't have any data to back me up on this, but I believe it to be true that a same-sex couple is more likely to decide to have children when the state fully supports them in the process via adoption laws and the family protections automatically conferred through marriage. If the state genuinely wants more babies, then encouraging everyone to marry would be the rational state policy to accomplish that goal.

  • 25. nightshayde  |  May 8, 2014 at 9:33 am

    Blah blah blah. Are they EVER going to figure out that the "responsible procreation" stuff is 100% irrelevant to granting or denying marriage rights to anyone? EVER?

  • 26. sae  |  May 8, 2014 at 9:39 am

    But their only other argument is … oh wait, there isn't one – unless you count 'ick' as an argument.

  • 27. TKinSC  |  May 8, 2014 at 6:47 pm

    Perhaps you'd like to explain that to the Minnesota and United States Supreme Courts (see: Baker v. Nelson).

  • 28. Rob  |  May 8, 2014 at 7:46 pm

    Sadly for you, you're grasping at straws in citing Baker.

  • 29. TKinSC  |  May 8, 2014 at 8:02 pm

    What do you expect Rob? I'm in closet-case mode again, and I apologize for it.

  • 30. Lymis  |  May 9, 2014 at 7:39 am

    The Baker ruling was issued at a time when it was seen as constitutionally permissible to criminalize sodomy. It followed logically that it was absurd to claim a basic and fundamental right to recognition of a relationship that could reasonably be expected to include routine criminal behavior.

    The underlying premises to that ruling have changed so dramatically that it's completely absurd to claim they are related. It's also flat out untrue to claim that the Supreme Court ruled on Baker. They turned the case down. They did not rule on it. That had precedential meaning up until the nature of the underlying circumstances changed.

    Baker no longer applies. I'll agree it's WAY past time for SCOTUS to affirmatively say so, but lower courts don't have to wait on that.

  • 31. Zack12  |  May 8, 2014 at 10:25 am

    The governor defending this is a Democrat.
    He could be a bigot but a more likely reason he's defending the ban is because his son is running for AG of Kentucky and he doesn't want any obstacles in his son's way.
    Either way I could care less. I worry about the LGBT families in Kentucky being harmed a heck of a lot more then some spoiled brat's political aspirations.

  • 32. DaveM  |  May 8, 2014 at 10:42 am

    Zack, not sure I agree on your reasoning. Gov. Steve Beshear is a conservative Democrat, and he may honestly believe (wrongly) that equality is bad.

    That said, KY is due for a shuffle. Steve Beshear is term-limited; the current AG (who refused to appeal to 6CA – Beshear hired outside counsel to represent KY), Democrat Jack Conway, is also term-limited and is running for Governor in 2015. Andy Beshear (Steve's son) is, as you mentioned, running for AG. Steve Beshear will likely take on Rand Paul in 2016.

    Beshear is very popular right now thanks to Obamacare… er, I mean KYnect. KY is red in federal elections, but still considerably blue in state.

  • 33. StraightDave  |  May 8, 2014 at 10:44 am

    The Gov might just believe that everyone/thing/state is entitled to a defense, as a matter of principle. He took responsible steps to do that, but may not have looked far and wide with a blank check, either.

    On the other hand, the really good attorneys don't seem interested in taking the blood money anymore. If they're really good, they don't need the money, and it might just end up denting their career.

  • 34. Eric  |  May 8, 2014 at 11:09 am

    The partners at the firm representing the state are billing at under $200/hr. Wilson Sonsini charges me more than that for a paralegal.

  • 35. sfbob  |  May 8, 2014 at 1:25 pm

    Another of those instances where the table of contents gives away all of the important talking points. Any brief which states a) Baker vs Nelson is still controlling precedent and b) take your pick of any of the other thoroughly debunked claims is not worth reading further.

  • 36. StraightDave  |  May 8, 2014 at 4:42 pm

    Is there any other kind these days?

  • 37. Rose  |  May 8, 2014 at 4:58 pm

    Here's the SOLE problem with the State's brief……the plaintiff's DON'T have a Same-Sex marriage license issued from another State, they simply have a State issued Marriage license from another State that they want recognized as being valid and legal just like ANY other couple who has married some place else and moved to Kentucky!!!

    As long as the words "GAY" or "SAME-SEX" preference come before the word marriage…..these idiots will keep making BOGUS claims like we are seeking a NEW right instead of the FUNDAMENTAL right to marry and have that legal marriage recognize in ALL 50 States the way an opposite-sex married couple's marriage is recognized in ALL 50 States…….to me how CAN one legal marriage be recognized in a State like Kentucky, but NOT another legal marriage SOLELY because the couple is the same gender?

  • 38. TKinSC  |  May 8, 2014 at 5:56 pm

    For the same reason a State like Kentucky CAN grant a marriage licence to one couple, but NOT to another SOLELY because the couple is the same gender.

    It's really not complicated: same-sex "marriage" is ILLEGAL in Kentucky (and 32 other states), and this law cannot be gotten around by going out of state for a false marriage license.

    Seriously, there are 17 states that go along with the perverse farce of same-sex "marriage". Is it so hard to stay there and stop trying to corrupt the states that choose to remain decent?

  • 39. Fr. Bill  |  May 8, 2014 at 7:12 pm

    Not worth responding to.

  • 40. Nyx  |  May 8, 2014 at 8:00 pm

    Yes Fr. Bill I agree with you concerning this post. But, I welcome TK and all his arguments. Whether it is TK or "Someone_Throwing_Shoes" or from the early days of this site "the Georges" who reappeared in various spellings. I welcome them all because they force us to sharpen our arguments. For us, and I feel more importantly to those who follow this site silently in the background… Singing to the choir feels good… but the battle is not done.

  • 41. [email protected]  |  May 8, 2014 at 9:09 pm

    Valid arguments would help us sharpen OUR arguments, but the constant ad nauseum regurgitation of NOM talking pointss. All they do is make up repeat all the reasons being presented are bogus., and/or bigot talking points, etc. does NOT sharpen any of OUR talking point

  • 42. davep  |  May 8, 2014 at 11:07 pm

    Our arguments are more than sharp enough already. Ass hats like TKinSC aren't doing anyone here any favors. Ban this idiot for stinking up a decent forum with pointless obnoxious trolling.

  • 43. TKinSC  |  May 8, 2014 at 11:39 pm

    I agree.

  • 44. JayJonson  |  May 9, 2014 at 8:34 am

    I agree with davep. This has become ridiculous. Most of us are seriously interested in these legal questions. To have a troll interrupting our conversations is not helpful. Please ban a–holes who do not contribute to the forum.

  • 45. allen  |  May 8, 2014 at 7:55 pm

    "Is it so hard to stay there and stop trying to corrupt the states that choose to remain decent?"


  • 46. TKinSC  |  May 8, 2014 at 8:07 pm

    You see my close-case and full on KOOK on display here.

    The truth is you're welcome in all 50 states. I can't believe i said something so stupid about "decent". If I could understand how dumb some of the stuff I type is before I click "Submit Comment", we'd all be better off.

  • 47. Deeelaaach  |  May 9, 2014 at 12:25 am

    If you learn something from it, then maybe that "dumb … stuff" is not in vain. If you truly want to learn something, stick around, even if you just lurk. Though note I'm not telling you to lurk. Post if you want, even if it is dumb. See line 1.

  • 48. Deeelaaach  |  May 9, 2014 at 12:30 am

    PS, please note that I am struggling with my cynicism and taking you at face value. My tendency is to go with the former rather than the latter in situations like this.

  • 49. Rose  |  May 8, 2014 at 11:00 pm

    First off…….having a wedding ceremony that involves 2 individuals of the same-sex is NOT illegal ANYWHERE in the Untied States, it's simply NOT recognized!!!

    Secondly…….No, the State of Kentucky nor ANY State for that matter can issue a marriage license to one couple(opposite-sex) and NOT issue a marriage license to another couple(Same-Sex) WITHOUT having a compelling interest and so far NOT one State that is being challenged has provided that compelling reason or interest!!!

    Thirdly……..if Marriage is truly a FUNDAMENTAL right, then it CAN NOT be based solely on the specific gender make-up of the couple!!!

    And last for now, but certainly NOT the end of this fight……..IF the State of Kentucky or ANY state can recognize the legal marriages of opposite-sex couples performed in another state, then there is NO reason to deny recognition of the legal marriages for Same-Sex Couples performed in other States as well!!!

  • 50. TKinSC  |  May 8, 2014 at 11:42 pm

    Rose- you're right. Please ignore me when I say stupid stuff like the Kentucky rant above. Thanks

  • 51. Mike in Baltimore  |  May 9, 2014 at 12:35 am

    You know, TKinSC, if you didn't say 'stupid stuff' (like repeating NOM and bigot talking points), then trying to 'cover' your 'stupid stuff' by saying you are a closet case, we wouldn't have to ignore you.

    Of course, that would cut down at least 75% of your posts, directly cutting into your income.

  • 52. Lymis  |  May 9, 2014 at 7:46 am

    Not completely true. There's an active case in North Carolina where clergy are fighting a law that applies criminal penalties to anyone performing a wedding ceremony that would not result in a legal marriage.

    I recall similar issues with criminal charges against a New York county clerk who was performing marriages before they were made legal.

    One of the unique aspects of the case in Wisconsin is that there is a law on the books that criminalizes going out of state to contract a marriage that would not be recognized in the state – everyone Wisconsin resident who goes to another state to marry is breaking the law.

    Your statement is true in most cases, but decidedly not true in all cases. There are, indeed, circumstances where criminal penalties apply to performing same-sex weddings.

  • 53. Lymis  |  May 9, 2014 at 7:47 am

    That should be "every same sex couple which includes a Wisconsin resident who goes to another state to marry is breaking the law."

  • 54. Rose  |  May 9, 2014 at 7:52 am

    I stated that having a wedding ceremony is NOT illegal……….and that is true, HOWEVER in some backward States, Clergy can be charged, though NONE have been so far, just threatened with legal action.

    I'm pretty certain that IF a State did file criminal charges against a Clergy for just performing a wedding ceremony, it would NOT go well for that State!!!

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