3:13-cv-00750 #87

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION

TIMOTHY LOVE, et al. )
Intervening Plaintiffs )
v. ) CASE No. 3:13-CV-750 (JGH)
) Electronically filed
STEVE BESHEAR, et al. )
Intervening Defendants )

RESPONSE OF
INTERVENING DEFENDANT STEVEN L. BESHEAR, IN HIS OFFICIAL CAPACITY
AS GOVERNOR OF KENTUCKY
TO
INTERVENING PLAINTIFFS MOTION FOR SUMMARY JUDGMENT

* * * *
Comes Intervening Defendant Steven L. Beshear, in his official capacity as Governor of
Kentucky (Governor Beshear), by counsel, in response to the Intervening Plaintiffs Motion for
Summary Judgment [Doc. No. 77] and states that the motion should be denied and the Intervening
Complaint dismissed with prejudice. In further support of his response, Governor Beshear states
as follows.
Kentucky has never permitted the issuance of a marriage license to a man seeking to marry
another man or to a woman seeking to marry another woman. Like 33 other states, Kentucky only
issues state-sponsored marriage licenses to man-woman couples. When the Kentucky legislature
amended Kentuckys marriage statutes in 1998 to codify the existing law in Kentucky limiting the
marriage benefit to man-woman couples and when 1,222,125 citizens of Kentucky voted in 2004
to amend the Kentucky Constitution confirming who would be afforded the state-sponsored
benefit, Kentucky was exercising its sovereign authority to define marriage in accordance with the
Case 3:13-cv-00750-JGH Document 87 Filed 05/19/14 Page 1 of 20 PageID #: 1223

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standards of its communities. The codification of what has always been the law in Kentucky was
not unconstitutional.
FACTUAL BACKGROUND
The motion for summary judgment presents pure questions of law the facial
constitutionality of Kentuckys laws limiting marriage to man-woman couples. Thus, the only
relevant facts for purposes of the motion which Intervening Defendant presumes to be true - are
that Intervening Plaintiffs are gay and lesbian couples who seek to compel Kentucky to offer them
and other gay/lesbian couples the state-sponsored benefit of a marriage license. Relying upon U.S.
v. Windsor, 133 S.Ct. 2675 (2013), Intervening Plaintiffs contend that Kentuckys man-woman
criteria violates the United States Constitution.
DISCUSSION
I. Kentuckys Traditional Marriage Statutes Do Not Violate the Equal Protection or
Due Process Clauses of the United States Constitution.

Intervening Plaintiffs challenge Kentuckys marriage statutes under the Equal Protection
and Due Process Clauses of the Fourteenth Amendment. The fundamental rights analysis is the
same under both provisions in the context of this case. See McGuire v. Ameritech Services, Inc.,
253 F.Supp.2d 988, 999, n. 9 (S.D. Ohio 2003)(explaining that claims regarding the interference
with fundamental rights are at times analyzed under the Due Process Clause and sometimes
under the Equal Protection Clause, and at times under other Constitutional provisions such as the
Privileges and Immunities Clause, but recognizing that in truth, whether invoked under the Equal
Protection Clause, the Due Process Clause, the Privileges or (sic) Immunities Clause, or a more
explicit provision of the Constitution, the fundamental rights analysis is the same.).

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Intervening Plaintiffs claims are barred by the precedent set forth in Baker v. Nelson, 409
U.S. 810 (1972). Even if Baker were not determinative of the issues before this Court, Intervening
Plaintiffs Equal Protection and Due Process claims fail.
A. Baker v. Nelson is Controlling and Remains Binding Precedent.
The Court need look no further than Baker v.Nelson, 409 U.S. 810 (1972), to resolve the
issue of whether states may constitutionally restrict the state-sponsored benefit of a marriage
license to man-woman couples. The Supreme Court declined the opportunity in Windsor to
declare that states were required to recognize same-sex marriages, confirming that the matter is
properly left to the sovereign authority of the states. The only definitive statement from the
Supreme Court regarding the constitutionality of same-sex-marriage prohibitions came in Baker v.
Nelson, 409 U.S. 810 (1972), when the Supreme Court dismissed for want of a substantial federal
question the Minnesota Supreme Courts determination that the Equal Protection Clause of the
United States Constitution does not guarantee the right to same-sex marriage. Windsor did not
disturb the Baker holding. Baker remains binding precedent.
In Baker, two men applied for and were denied the issuance of a marriage license in
Minnesota. The basis of the denial was a Minnesota statute that indicated marriage was to be only
between a man and a woman. The men argued they were denied a marriage license based solely
on their sex and that the statute was unconstitutional. Baker v. Nelson, 191 N.W.2d 185, 186
(Minn. 1971).
Like Kentucky, Minnesota did not recognize same-sex marriages. The Baker plaintiffs,
like Intervening Plaintiffs here, alleged that the states denial of a same-sex marriage license
deprived them of their liberty to marry and their property without due process of law under the

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Fourteenth Amendment and violated their rights under the Equal Protection Clause of the
Fourteenth Amendment. Id. at 186.
The Minnesota Supreme Court rejected these constitutional challenges. In reaching its
decision, the Minnesota Supreme Court quoted Skinner v. State of Okl. ex rel. Williamson, 316
U.S. 535, 541 (1942):
Marriage and procreation are fundamental to the very existence and survival of the
race. The historic institution manifestly is more deeply founded than the asserted
contemporary concept of marriage and societal interests for which petitioners
contend. The due process clause of the Fourteenth Amendment is not a charter for
restructuring it by judicial legislation.

Baker, 191 N.W. at 186 (internal citations omitted). Following this, the Minnesota Supreme Court
held: The equal protection clause of the Fourteenth Amendment, like the due process clause, is
not offended by the states classification of persons authorized to marry. There is no irrational or
invidious discrimination. Id. at 187.
The Baker plaintiffs appealed to the United States Supreme Court and presented three
questions in the Jurisdictional Statement: (1) whether Minnesotas refusal to sanctify appellants
[same-sex] marriage deprives appellants of their liberty to marry and of their property without due
process of law under the Fourteenth Amendment; (2) whether Minnesotas refusal, pursuant to
Minnesota marriage statutes, to sanctify appellants [same-sex] marriage because both are of the
male sex violates their rights under the equal protection clause of the Fourteenth Amendment; and
(3) whether Minnesotas refusal to sanctify appellants [same-sex] marriage deprives appellants
of their right to privacy under the Ninth and the Fourteenth Amendments. Baker, Jurisdictional
Statement, No. 71-1027, at 3 (Feb. 11, 1971). In response, the Supreme Court then issued an order
of dismiss[al] for want of a substantial federal question. Baker v. Nelson, 409 U.S. at 810.

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The Supreme Courts summary dismissal of the appeal operated to affirm the Minnesota
Supreme Courts decision and creates binding precedent upon all lower courts until the Supreme
Court directs otherwise or except when doctrinal developments indicate otherwise. Hicks v.
Miranda, 422 U.S. 332, 344-45 (1972). A summary dismissal without doubt reject[s] the specific
challenges presented in the statement of jurisdiction, and prevent[s] lower courts from coming to
opposite conclusions [1] on the precise issues presented and [2] necessarily decided by those
actions. Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam). Baker has not been
overruled either expressly or by implication. Baker is binding on this Court and dispositive of
Intervening Plaintiffs Equal Protection claims. See also Rodriguez de Quijas v. Shearson/Am.
Express, Inc., 490 U.S. 477, 484 (1989) (If a precedent of this Court has direct application in a
case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals
should follow the case which directly controls, leaving to this Court the prerogative of overruling
its own decisions.).
Based upon Bakers controlling precedent, Intervening Plaintiffs motion for summary
judgment should be denied.
B. Rational Basis is the Appropriate Standard of Review.
This Court has already analyzed the issue of whether a gay/lesbian challenge to Kentuckys
marriage statutes should be made using the rational basis test or strict scrutiny test, and rejected the
same arguments now made by the Intervening Plaintiffs for application of a strict scrutiny test. In
the Bourke v. Beshear segment of this case, this Court correctly recognized that neither the
Supreme Court nor the Sixth Circuit has stated that the fundamental right to marry includes a
fundamental right to marry someone of the same sex. (Doc. No. 47, Page ID # 23). Accordingly,
whether the question involves Kentuckys policy on recognition of same sex marriages validly

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performed in other states or its policy limiting marriages performed in Kentucky to those involving
heterosexual couples, the analysis is the same, and the rational basis standard of review applies.
1. Gays/Lesbians are Not a Suspect Class.
Intervening Plaintiffs argue that a strict scrutiny analysis should be applied because they
are homosexuals. [Doc. No. 77-1, Page ID # 1080]. They argue that the Sixth Circuit has so far
only relied upon the reasoning of Bowers v. Hardwick, 478 U.S. 186 (1986), which was overturned
by Lawrence v. Texas, 539 U.S. 558 (2003), and therefore the issue should be revisited.
Intervening Plaintiffs suggest that the Sixth Circuit would apply strict scrutiny if offered the
opportunity to consider the issue in light of Lawrence.
But Intervening Plaintiffs ignore two published cases from the Sixth Circuit issued after
Lawrence in which the Sixth Circuit held that homosexuality is not a suspect class in this circuit.
Scarbrough v. Morgan Co. Bd. of Educ., 470 F.3d 250, 261 (6
th
Cir. 2006), and Davis v. Prison
Health Services, 679 F.3d 433, 441 (6
th
Cir. 2012) (holding that homosexuals constitute an
identifiable group, but sexual orientation has not been recognized as a suspect class or quasi-
suspect classification.). The Sixth Circuits position on this issue post-Lawrence could not be
clearer. Intervening Plaintiffs have offered no legal basis that would authorize this Court to apply
a strict scrutiny test based upon their classification as gays/lesbians. This Court is bound to apply
the clear precedent on this issue, just as any panel of the Sixth Circuit would be. See Darrah v.
City of Oak Park, 255 F.3d 301, 309 (6
th
Cir. 2001) (a panel of this Court cannot overrule the
decision of another panel. The prior decision remains controlling authority unless an inconsistent
decision of the United States Supreme Court required modification of the decision or this Court
sitting en banc overrules the prior decision.) (citation omitted). The Supreme Court in U.S. v.
Windsor, 133 S.Ct. 2675 (2013), did not specify that gays/lesbians are a suspect class entitled to

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strict scrutiny and neither has the Sixth Circuit Court of Appeals. Hence, Intervening Plaintiffs
argument that a heightened standard of review applies based upon their classification as
homosexuals should be rejected.
2. There is No Fundamental Right to Same-Sex Marriage.
Intervening Plaintiffs assert alternatively that a heightened standard of review should be
applied because they seek access to a fundamental right. This argument for application of strict
scrutiny also should be rejected. Intervening Plaintiffs seek a new right the right to a state-
sponsored gay/lesbian marriage.
The institution of the traditional man-woman marriage is deeply rooted in the history and
traditions of our country. Gay/lesbian marriages are not. The Windsor Courts historical
description of societys views on traditional marriage and same-sex marriage precludes any
argument that Intervening Plaintiffs are seeking access to a fundamental right:
It seems fair to conclude that, until recent years, many citizens had not even
considered the possibility that two persons of the same sex might aspire to occupy
the same status and dignity as that of a man and woman in lawful marriage. For
marriage between a man and a woman no doubt had been thought of by most
people as essential to the very definition of that term and to its role and function
throughout the history of the civilization. . . . The limitation of lawful marriage to
heterosexual couples, which for centuries had been deemed both necessary and
fundamental, came to be seen in New York and certain other States as an unjust
exclusion.

Windsor, 133 S.Ct. at 2689. See also id. at 2715 (2013) (Alito, J., dissenting)(It is beyond
dispute that the right to same-sex marriage is not deeply rooted in this Nation's history and
traditionNor is the right to same-sex marriage deeply rooted in the traditions of other nations.
No country allowed same-sex couples to marry until the Netherlands did so in 2000.)
The Supreme Courts description of this nations view of traditional man-woman marriage
as necessary and fundamental is consistent with other Supreme Court descriptions of this right,

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such as in Skinner v. State of Okl. ex rel. Williamson, 316 U.S. 535, 541 (1942) (finding that
marriage and procreation are fundamental to the very existence and survival of the race);
Maynard v. Hill, 125 U.S. 190, 211 (1888) (characterizing marriage as the foundation of the
family and of society, without which there would be neither civilization nor progress); and
Lawrence v. Texas, 539 U.S. 558, 585 (2003) (OConnor concurring) (stating that a state could
have a legitimate state interest . . . [in] preserving the traditional institution of marriage
providing a basis to distinguish between homosexuals and heterosexuals).
Intervening Plaintiffs do not allege violation of this fundamental, deeply-rooted right.
Instead, they seek recognition of a new right, a new institution, one never recognized by the
Supreme Court as a fundamental right and until relatively recently never associated with the
institution of marriage.
It is well-established that courts should not readily create new fundamental rights. See
Does v. Munoz, 507 F.3d 961, 964 (6
th
Cir. 2007) ([I]dentifying a new fundamental right subject
to the protections of substantive due process is often an uphill battle as the list of fundamental
rights is short.)(internal citations omitted)

and San Antonio School District v. Rodriquez, 411
U.S. 1, 33 (1973) (It is not the province of this Court to create substantive constitutional rights in
the name of guaranteeing equal protection of the laws.). Further, to qualify such rights must be
deeply rooted in this Nations history and tradition, or implicit in the concept of ordered
liberty, such that neither liberty nor justice would exist if they were sacrificed. Does, 507 F.3d
at 964 (citing Moore v. City of East Cleveland, 431 U.S. 494, 503 (1997) and Washington v.
Glucksberg, 521 U.S. 702, 721 (1997)).
The fundamental right being asserted must be articulated with a careful description. Id.
at 720-21. Here, Intervening Plaintiffs are not asserting a right to a traditional man-woman

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marriage; rather, they are seeking access to a different institution a same-sex marriage. Thus,
Intervening Plaintiffs newly asserted right is not one steeped in the tradition and history of this
Nation. It is a new right a new concept - and recognized by only 17 of the States in the
United States. As such, Intervening Plaintiffs deprivation of their claimed right is not subject
to a heightened scrutiny.
C. Kentuckys Restriction of the Right to Receive the State-Sponsored Benefit is
Rationally Related to a Legitimate State Interest.

1. The Rational Basis Threshold is Minimal.

The Supreme Court has articulated the considerable deference to be given to the state under
a rational-basis review:
[The] rational-basis review in equal protection analysis is not a license for courts
to judge the wisdom, fairness or logic or legislative choices. Nor does it authorize
the judiciary [to] sit as a superlegislature to judge the wisdom or desirability of
legislative policy determinations made in areas that neither affect fundamental
rights nor proceed along suspect lines. For these reasons, a classification neither
involving fundamental rights nor proceeding along suspect lines is accorded a
strong presumption of validity. Such classification cannot run afoul of the Equal
Protection Clause if there is a rational relationship between the disparity of
treatment and some legitimate governmental purpose. Further, a legislature that
creates these categories need not actually articulate at any time the purpose or
rationale supporting its classification. Instead, a classification must be upheld
against equal protection challenge if there is any reasonably conceivable state of
facts that could provide a rational basis for the classification.

Heller v. Doe, 509 U.S. 312, 319-20 (1993) (emphasis added) (internal citations omitted). In
performing a rational basis analysis, courts are obligated to look to any conceivable basis for
the challenged law, and their analysis is not limited to those articulated, established, recorded, or
those that may have even occurred to the defendant. See FCC v. Beach Communications, Inc.,
508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993); see also Railroad Retirement Board
v. Fritz, 449 U.S. 166, 101 S.Ct. 453, 66 L.Ed.2d 368 (1980). See also Maxwells Pic-Pac, Inc.,

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739 F.3d 936, 940 (6
th
Cir. 2014) (rejecting the equal protection challenge based upon a finding of
reasonably conceived facts to support the challenged legislation).
2. Kentuckys Interest is Rationally Related to the Statutory
Classification.

It is axiomatic that that procreation is vital to continuation of the human race and that only
man-woman couples can naturally procreate. See Skinner v. State of Okl. ex rel. Williamson, 316
U.S. 535, 541 (1942) (Marriage and procreation are fundamental to the very existence and
survival of the race.) and Maynard v. Hill, 125 U.S. 190, 211 (1888)(characterizing marriage as
the foundation of the family and of society, without which there would be neither civilization nor
progress). Encouraging, promoting, and supporting the formation of relationships that have the
natural ability to procreate furthers the Commonwealths fundamental interest in ensuring
humanitys continued existence.
The continued expansion of the population through stable birth rate growth fosters long-
term economic stability, unquestionably a valid state interest. One need look no further than
economic journals and news sources to see the correlation between a societys birth rates and its
long-term ability to support a strong economy. See, e.g., How Declining Birth Rates Hurt Global
Economies, National Public Radio (Oct. 3, 2011) (transcript reprinted at www.npr.org /2011
/10/02/131000410/how-declining-birth-rates-hurt-global_economies) (copy attached at Exhibit 1).
On August 13, 2013, The New York Times reported that [t]here is perhaps nowhere better than
the German countryside to see the dawning impact of Europes plunge in fertility rates over the
decades, a problem that has frightening implications for the economy and the psyche of the
Continent. Suzanne Daley and Nicholas, Germany Fights Population Drop, N.Y. Times, August
13, 2013, http://www.nytimes.com/2013/09.14/world/europe/germany-fights-population-
drop.html. (Copy attached at Exhibit 2). The economic crisis created from declining birth rates

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results from a reduced demand for goods and services and an aging work force, which results in
fewer available laborers and members of the work force to support social programs.
Japan has adopted a policy of encouraging marriage to improve its declining birth rates.
The Japanese government provides financial aid to matchmaking programs in the hopes of
encouraging marriage, which the government believes is crucial to improving birth rate statistics.
According to reports, Japan Prime Minister Shinzo Abes administration assigned 3 billion yen
($32.5 million) for birthrate-boosting programs in this fiscal years extra budget, which included
consultations and marriage information for singles. Keiko Ujikane, Japan Plays Cupid to Bid
Boost in Birthrate, The Sydney Morning Herald, March 28, 2014,
www.smh.com.au/action/printArticle?id=30026715. (Copy attached at Exhibit 3).
France has undertaken measures to improve its declining birth rates as well. The
government has adopted a policy of encouraging couples to have children by covering child-care
costs to toddlers up to 3 years old and free child-care centers from age 3 to kindergarten and by
providing child allowances, extended maternity care laws (including a year-long leave for the
birth of a third child with a monthly stipend from the government and increased allowance for the
third child), increased tax deductions, and discounts on transportation and cultural events. Molly
Moore, As Europe Grows Grayer, France Devices a Baby Boom, The Washington Post, October
18, 2006. http://washingtonpost.com/wp-dyn/content/article/2006/10/17/AR2006101701652.html.
(Copy attached at Exhibit 4).
Kentucky has an economic interest in fostering a steady population growth to support
economic activity. Promotion of stable birth rates does not equate with an argument that
Kentucky cannot afford to recognize gay marriage or that Kentuckys economy would suffer by
recognition of gay marriage. Just as governmental policies around the globe promote population

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growth, so does Kentuckys traditional marriage policy. 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. Only man-woman relationships can naturally procreate and thereby further Kentuckys
legitimate economic interest, and only those relationships, therefore, are afforded the state-
sponsored benefit. Kentuckys recognition of only traditional man-woman couples through the
state-sponsored marriage benefit is not only rational, but also consistent with sound economic
policy.
3. Imperfect Line Drawing Does not Render a Statutory Classification
Unconstitutional.

In Bourke, the Court questioned whether Kentuckys marriage laws were rationally related
to a legitimate interest since Kentucky does not require marriage license applicants to demonstrate
the ability to procreate. (Kentucky does not require proof of procreative ability to have an out-of-
state marriage recognized. The exclusion of same-sex couples on procreation grounds makes just
as little sense as excluding post-menopausal couples or infertile couples on procreation grounds.)
[Memorandum Opinion, RE 47, Page ID #739]. This same line drawing argument was rejected
in Baker:
Petitioners note that the state does not impose upon heterosexual married couples a
condition that they have a proved capacity or declared willingness to procreate,
posing a rhetorical demand that this court must read such condition into the statute
if same-sex marriages are to be prohibited. Even assuming that such a condition
would be neither unrealistic nor offensive under the Griswold rationale, the
classification is no more than theoretically imperfect. We are reminded, however,
that abstract symmetry is not demanded by the Fourteenth Amendment.

Baker, 191 N.W.2d at 187. Further, the Supreme Court has repeatedly stated that the state is not
required to draw perfect lines in its classifications. [C]ourts are compelled under rational-basis
review to accept a legislatures generalizations even when there is an imperfect fit between the
means and end. A classification does not fail rational basis review because it is not made with

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mathematical nicety or because in practice it results in some inequality. Heller, 509 U.S. at
321 (internal citations omitted). Therefore, that infertile man-woman couples are allowed to
marry does not nullify the rational basis for a man-woman marriage classification. See also
Dandridge v. Williams, 397 U.S. 471, 486-87 (1970)([T]he Equal Protection Clause does not
require that a State must choose between attacking every aspect of a problem or not attacking the
problem at all. It is enough that the States action be rationally based and free from invidious
discrimination.)(internal citations omitted).
Intervening Plaintiffs also contend they are entitled to the state-sponsored benefit because
doing so would not harm or diminish the states interest in procreation. This no-harm premise
is not grounded in any legal authority and misses the mark altogether. Adoption of this no-harm
standard would make short work of Equal Protection and Due Process claims.
The same no-harm theory could be argued by many plaintiffs who make Equal Protection
or Due Process challenges when denied a government benefit. For example, in Mathews v.
Catro, 429 U.S. 181 (1976), the plaintiff challenged Congress award of wifes insurance
benefits under the Social Security Act. Under the challenged statute, the plaintiff, a divorced
woman, would not receive the same government benefits that a married woman would receive
based upon her status as divorced even though she otherwise qualified for the benefit. If the no-
harm rule were the standard in determining the Due Process Claim, then the plaintiff would have
prevailed. That was not the standard, however, and she did not prevail. Instead, the Supreme
Court examined whether Congress interest was served by awarding the married woman benefits,
i.e., whether there was a rational basis for the statutory classification, not whether Congress
interest would be thwarted by giving equal benefits to the plaintiff. See id. at 436 (holding that
the constitutional question is not whether a statutory provision precisely filters out those, and

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only those, who are in the factual position which generated the congressional concern reflected
in the statute)(internal citations omitted). The Intervening Plaintiffs no-harm theory is not the
standard adopted by the Supreme Court and should not be applied in this case.
4. Loving v. Virginia is Not Applicable to a Same-Sex Marriage Analysis.
Making an analogy between race and gender as prohibited classifications in reliance upon
Loving v. Virginia, 388 U.S. 1 (1967), is misplaced. Virginias miscegenation laws at issue in
Loving prohibited marriages between couples of mixed races. The Supreme Court correctly
concluded that race had no bearing upon any legitimate interest of the government with regard to
marriage and that the laws violated the Fourteenth Amendment. In contrast, it cannot be said
that gender has no bearing on the governments interest with regard to marriage. See Jones v.
Hallahan, 501 S.W.2d 588, 589 (Ky. 1973) (rejecting constitutional challenge of lesbian couple
denied a Kentucky marriage license). Gender clearly has a bearing on the issue of marriage,
particularly with regard to natural procreation. Therefore, the Loving case cannot be used as a
basis to strike Kentuckys man-woman marriage laws.
1

II. Kentuckys Marriage Statutes Do Not Violate the Establishment Clause.
Kentuckys restrictive definition of marriage to man-woman couples is not new. Same-
sex couples have never been permitted to marry under Kentucky law. Thus, the amendments to
Kentuckys marriage statutes in 1998 and Senate Bill 245 in 2004 proposing a state
constitutional amendment did not create or propose new law in Kentucky. Rather, the legislation
served to confirm what had always been in practice and what the Kentucky Supreme Court had
already declared the law to be. Thus, Intervening Plaintiffs contention that Kentuckys

1
Notably, Loving v. Virginia, 388 U.S. 1 (1967), was decided only five years before the
Supreme Court dismissed Baker v. Nelson, 409 U.S. 810 (1972), for want of a substantial federal
question.

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The Kentucky Supreme Courts decision in Jones v. Hallahan, 501 S.W.2d 588 (Ky.
1973), provides helpful insight with regard to Kentuckys historical restriction of gay/lesbian
couples from obtaining the benefits of a marriage license. In Jones, a lesbian couple applied
with the Jefferson County Court Clerk for a marriage license. At the time, Kentuckys marriage
statutes did not specifically prohibit the clerk from issuing a marriage license to same-sex
couples, but the clerk refused to do so. The woman-woman couple brought suit in Jefferson
Circuit Court challenging the constitutionality of the states refusal to grant them the same state-
sponsored benefit of marriage that was being afforded to man-woman couples.
The Kentucky Supreme Court rejected all constitutional challenges raised by the women.
In doing so the Kentucky Supreme Court affirmed that Kentucky has never permitted the issuance
of licenses to same-sex couples and that the woman-woman union was not a marriage. Id. at
590. Applying what was then a well-established and fundamental tenet of the understanding of
marriage, the Kentucky Supreme Court held that the woman-woman couple was prohibited from
marrying by their own incapability of entering into a marriage as that term is defined. Id. The
Court held that [a] license to enter into a status or a relationship which the parties are incapable of
achieving is a nullity. . . . In substance, the relationship proposed by the appellants does not
authorize the issuance of a marriage license because what they propose is not a marriage Id. at
589-90.
In 1998, twenty-five years after Jones, the Kentucky legislature amended several Kentucky
statutes consistent with well-established Kentucky law. That is, the legislature confirmed that
Kentuckys state-sponsored benefit of marriage was only available to man-woman couples.
2
None

2
KRS 402.020 was amended to state that marriage was prohibited between members of the
same sex. KRS 402.040 was amended to state the marriage between members of the same sex is

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of the amendments restricting the issuance of marriage licenses in Kentucky to the traditional man-
woman model changed, modified or altered the existing law in Kentucky. Rather, it codified what
the Kentucky Supreme Court had long before declared Kentuckys law to be.
When Senate Bill 245 was introduced in 2004 proposing an amendment to the Kentucky
Constitution to define marriage as between a man and a woman this was already the existing law
in Kentucky. It had always been the law. When the amendment was presented to the voters of
Kentucky, 74% of those voting (1,222,125) confirmed that they wanted this to remain the law of
Kentucky. That the continuation of the existing law also may be consistent with Judeo-Christian
beliefs, including the beliefs of two senators who proposed the constitutional amendment, does not
invalidate the law as violative of the Establishment Clause, U.S. Const., amend. I. See Harris v.
McRae, 488 U.S. 297, 319-20 (1980) (That Judeo-Christian religions oppose stealing does not
mean that a State or the Federal Government may not, consistent with the Establishment Clause,
enact laws prohibiting larceny). The definition proposed in the Constitutional Amendment was
already the law of the Commonwealth as determined by the Kentucky Supreme Court in Jones
and by the legislature with amendment of the marriage statutes in 1998.
Even if the Court were to determine that the words of the respective legislators in
proposing the Constitutional amendment were evidence of some sort of animus,
3
it would not be
determinative as to whether or not the law serves a legitimate governmental purpose. Ill intent,
even if proven, does not end the review. Although such biases may often accompany irrational
(and therefore unconstitutional) discrimination, their presence alone does not a constitutional

against public policy, and KRS 402.045 was enacted to prohibit the recognition of marriage
licenses issued by other jurisdictions to same-sex couples.

3
This Court, in referencing the words of Sens. McGaha, Trapp, and Worley in the Bourke decision,
did not find that they evidenced an obvious animus against same-sex couples, merely that it was
debatable. [Doc. No. 47, p. 735-36].

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violation make. Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 367, 121 S. Ct.
955, 964, 148 L. Ed. 2d 866 (2001); see also City of Los Angeles v. Cnty. of Kern, 462 F. Supp. 2d
1105, 1111 (C.D. Cal. 2006).
III. Kentuckys Marriage Statutes Do Not Violate the Intervening Plaintiffs First
Amendment Right to Association.

Intervening Plaintiffs argue that the right to enter into a same-sex marriage is an intimate
association protected under the First Amendment as set forth by the Supreme Court in Roberts v.
United States Jaycees, 468 U.S. 609 (1984). [Doc. No. 77-1, p. 1093-5]. However, Intervening
Plaintiffs have cited no controlling authority that would expand the definition of intimate
association to include same-sex marriage. The Sixth Circuit Court of Appeals has recognized that
marriage, as it was recognized in the common law, is afforded constitutional protection; however,
that constitutional protection has not been extended to include forms of marriage outside of the
common law tradition. Vaughn v. Lawrenceburg Power System., 269 F.3d 703, 711 (6th Cir.
2001) (internal citations omitted). Intervening Plaintiffs have not demonstrated that same-sex
marriage was a form of marriage in the common law tradition. Kentucky law reflects the opposite.
See Jones v. Hallahan, 501 S.W.2d 588 (Ky. 1973)(holding that same-sex marriage was not
considered to be a marriage under Kentucky law). Therefore, the right to intimate association as
defined in Roberts would not extend to persons wishing to enter into same-sex marriage.
Intervening Plaintiffs reliance upon Roberts and its progeny is misplaced.
However, even if the Court were to find that the asked for privilege to enter into same-sex
marriage was a protected intimate association, such rights are not absolute. See Board of
Comm'rs, Wabaunsee Cty. v. Umbehr, 518 U.S. 668, 675 (1996) (While protecting First
Amendment freedoms, we have, however, acknowledged that the First Amendment does not create
property or tenure rights, and does not guarantee absolute freedom of speech.). The proper

{LGL0256-1 }18

standard of review of a constitutional challenge under the First Amendment would be the same as
under the Due Process Clause of the Fourteenth Amendment. Cross v. Baltimore City Police
Department, 213 Md. App. 294, 309, 73 A.3d 1186, 1194 (2013)(citing Wolford v. Angelone, 38
F.Supp.2d 452 (W.D.Va.1999)); and Parks v. City of Warner Robins, 43 F.3d 609, 615 (11th
Cir.1995). As this Court has previously decided, the proper standard of review is the rational basis
test. [Doc. No. 47, p. 731-732]. As demonstrated above, Kentuckys statutory and constitutional
restriction of marriage to between one man and one woman is rationally related to a legitimate
governmental interest and therefore does not violate the Intervening Plaintiffs right to freely
associate.
IV. Windsor does not compel striking Kentuckys Marriage Statutes under the
Supremacy Clause.

Intervening Plaintiffs argument that Windsor compels the Court to strike Kentuckys
prohibition on same-sex marriage is erroneous. Windsor expressly states that the opinion and its
holdings are confined to those lawful marriages referring to same-sex marriages that a state has
recognized. Windsor, 133 S.Ct. at 2696. The Supreme Court found that Section 3 of the federal
Defense of Marriage Act was grounded in a discriminatory purpose: governmental interference
with the equal dignity of same-sex marriages conferred by the States in the exercise of their
sovereign power. Id. at 2681.
Windsor stands for the proposition that the states not the federal government - have the
sovereign power to decide and determine whether the state will or will not recognize same-sex
marriages. Windsor stands for the proposition that the federal government will not interfere with
the sovereign decision of a State to grant the benefits of marriage to same-sex couples. The
corollary argued by the Intervening Plaintiffs does not flow from this holding. That is, it does not
follow from that holding that States have lost their sovereign authority to continue to define

{LGL0256-1 }19

marriages in accordance with a definition that reflect[s] both the communitys considered
perspective on the historical roots of the institution of marriage and the communitys continued
preference for that definition. See id. at 2681 (New Yorks [same-sex marriage statutes] were a
proper exercise of its sovereign authority [and] reflect both the communitys considered
perspective of the historical roots of the institution of marriage and its evolving understanding of
the meaning of equality.) . The clear role of the States in defining marriage criteria remains with
the States.
Thus, while other States may have chosen to exercise their sovereign authority to re-define
marriage to include same-sex couples to reflect the sentiments of those communities, Kentucky
citizens have exercised their like right to maintain the states traditional man-woman definition.
Nothing in the Windsor changes Kentuckys sovereign authority to maintain its traditional
marriage definition, which in 2004 was the overwhelming preference of the 1,222,125 members of
Kentuckys community who voted on the issue.
CONCLUSION

The decision of the overwhelming majority of the citizens of Kentucky who voted to keep
Kentuckys traditional definition of marriage was made in accordance with the sovereign authority
of the citizens of this state to do. The codification of the traditional definition did not reflect a
change in Kentucky law, but confirmed what has always been in Kentucky. Nothing in the
legislatures and voters decisions is inconsistent with the Constitution, and the legislation is
rationally related to a legitimate interest of Kentucky.
Windsor affirms that if the citizens of Kentucky decide to change the definition to include
same-sex couples, then the federal government cannot undermine that authority and refuse to
recognize the marriage. To apply Windsor in a manner that compels the citizens of Kentucky to

{LGL0256-1 }20

adopt same-sex marriage reaches far beyond the express limitations of Windsor. That decision
remains with the citizens of Kentucky, not the federal judiciary.
WHEREFORE, Intervening Plaintiffs Motion for Summary Judgment should be denied
and the Intervening Complaint dismissed with prejudice.

Respectfully submitted,
VanAntwerp, Monge, Jones,
Edwards, & McCann, LLP

/s/ Leigh Gross Latherow
Leigh Gross Latherow
William H. Jones, Jr.
Gregory L. Monge

1544 Winchester Avenue, 5th Floor
P.O. Box 1111
Ashland, KY 41105-1111
(606) 329-2929; Fax (606) 329-0490
wjones@vmje.com
gmonge@vmje.com
llatherow@vmje.com

COUNSEL FOR DEFENDANT,
STEVEN L. BESHEAR, in his official capacity as
Governor of Kentucky

CERTIFICATE OF SERVICE

It is hereby certified that on May 19, 2014, the foregoing was filed with the clerk of the
Court using the CM/ECF system, which will send a notice of electronic filing to all parties of
record.

/s/ Leigh Gross Latherow
Leigh Gross Latherow

Case 3:13-cv-00750-JGH Document 87-1 Filed 05/19/14 Page 1 of 3 PageID #: 1243

{LGL0261-1 }1

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION

GREGORY BOURKE, et al. )
Plaintiffs )
and )
)
TIMOTHY LOVE, et al. ) CASE No. 3:13-CV-750 (JGH)
Intervening Plaintiffs )
v. )
) Electronically filed
STEVE BESHEAR, et al. )
Defendants )

ORDER

This matter is before the Court upon motion of Intervening Plaintiffs for Summary
Judgment [Doc. No. 77], and Response of Intervening Defendant Steve Beshear, in his official
capacity as Governor of Kentucky [Doc. No. 087]. The Court having considered the arguments
and the record finds that the Motion should be Denied. Accordingly,
IT IS HEREBY ORDERED that the Intervening Plaintiffs Motion for Summary
Judgment is DENIED and the Intervening Complaint is DISMISSED WITH PREJUDICE.

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