In February, a federal judge ruled that Kentucky must recognize same-sex couples’ marriages from other states, a decision that was stayed pending appeal. Gov. Steve Beshear (D), who hired outside counsel because of Attorney General Jack Conway’s (D) unwillingness to defend the state’s ban, has filed his first brief in the appeal, presenting a novel economic argument against recognizing same-sex marriage.
Beshear’s argument to the Sixth Circuit echoes claims made by many other states defending marriage bans. Notably, because same-sex couples cannot “naturally procreate,” they are “not similarly situated to man-woman couples” and thus do not deserve the same benefits of marriage. Same-sex marriage, the brief argues, is a “new right,” so the state’s ban does not violate same-sex couples’ equal protection when it comes to marriage. But Beshear applies these assumptions in a new way: because same-sex couples do not contribute to the birth rate, it’s not economically beneficial for Kentucky to recognize their marriages.
“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,” the brief argues. “Only man-woman relationships can naturally procreate, and only those relationships, therefore, are afforded the state sponsored benefit.”
The brief acknowledges that same-sex couples “may capably raise children in a loving environment or engage in loving relationships,” but claims that marriage is only important to promoting the birth rate. This seems to ignore the economic benefit when same-sex couples adopt and foster children who might otherwise be dependents of the state. The Williams Institute estimates that there are over 1,300 same-sex couples already raising their own children in Kentucky. The state has, on average, about7,000 children in foster care each year, whose care costs about $50 million annually. Moreover, it disregards the fact that same-sex couples do contribute to the birth rate with the use of artificial insemination, surrogates, and other methods.
Beshear also neglects to address the double standard of allowing infertile and post-menopausal different-sex couples to marry. Though he asserts that “the state is not required to draw perfect lines in its classifications,” he does not actually explain why the supposed economic burden of these non-procreating different-sex couples is acceptable to Kentucky when it’s not for same-sex couples.