The state of Kentucky is appealing a federal judge's decision that the state must recognize the marriages of same sex couples now residing in Kentucky, In a brief filed with the U.S. Supreme Court, the lawyer for Democratic governor Steve Beshear has written
Kentucky’s marriage laws treat homosexuals and heterosexuals the same and are facially neutral. Men and women, whether heterosexual or homosexual, are free to marry persons of the opposite sex under Kentucky law, and men and women, whether heterosexual or homosexual, cannot marry persons of the same sex under Kentucky law.
Digby has characterized this as "the fatuous argument of the week." If fatuous is "foolish or inane," the esteemed blogger is, respectively, right and wrong.
The state's argument is not inane, for laws frequently have a differential impact upon individuals or groups. However, it is foolish because it is likely to fail. A law prohibiting same-sex marriage inhibits substantially (though not eliminating) the ability of a gay individual to marry. Even though a heterosexual also is precluded from marrying someone of the same sex as he or she (as Kentucky is arguing) this imposition is legally intolerable because marriage is a fundamental right under the U.S. Constitution.
Don't take it from me- it wasn't my decision, nor would it necessarily have been. But the US Supreme Court has ruled on at least fourteen (14) occasions (video below from American Foundation for Equal Rights, same-sex marriage activist) that marriage is a fundamental right, which suggests its restriction necessitates strict scrutiny. Additionally, many Roman Catholics, as their church teaches, believe marriage is a sacrament, as do many (especially evangelical) Protestants, though it is a biblically unsound position.
Digby would have been better- or at least more thoughtful- attacking (as is deserved) another argument Kentucky made. Talking Points Memo reported last May
After first arguing that Kentucky had "a basic and fundamental interest in ensuring the existence of the human race" through procreative opposite-sex marriages, the lawyers took things a step further.
"The Commonwealth, however, has an additional interest in promoting procreation -- supporting long-term economic stability through stable birth rates," they wrote.
They then cited research showing that stable birth rates are economically beneficial and international examples of countries encouraging procreation to combat declining birth rates. That was fit into their argument against same-sex marriage.
"Kentucky has an economic interest in procreation," they said. "Just as governments around the globe promote procreation and birth rates, so does Kentucky’s traditional marriage policy."
The state's lawyers then invoked the tax benefits that married couples are granted. Opposite-sex couples offset those costs through their improvement of the long-term economy, but same-sex couples don't.
"Though there is a cost to Kentucky by granting tax and other benefits to man-woman couples, a stable or growing birth rate offsets the cost," they wrote. "Only man-woman relationships can naturally procreate, and only those relationships, therefore, are afforded the state sponsored benefit."
So much for conservatives' love for the U.S. Constitution. When heard from last year, the state argued that a right to same-sex marriage doesn't exist because it's not profitable. It is debatable whether, especially in a world hurtling toward self-destruction by global warming engendered by emission of greenhouse gases, more is better. It is an argument, though, that is in the wheelhouse of American conservatives, who for decades have been blindly pro-natal (witness their opposition to abortion and even contraception).
Several cases from Kentucky now have been consolidated and the US Supreme Court will decide both whether the state must recognize same-sex marriages performed in other states and whether Kentucky may itself continue to prohibit such unions. If the state loses, the advocates for unconventional marriage will have ironically benefited from the conservative, debatable decisions that the institution itself is a fundamental right.