Gay Marriage Debate Heads to Federal Appeals Court

by John Gregory | 07/15/14 3:46 PM

Even as an increasing number of judges strikes down bans against same-sex marriage, the issue remains hotly contested in many states around the country.

Another round in that debate unfolded on Monday's edition of Kentucky Tonight, as the panel discussed two recent rulings by U. S. District Judge John Heyburn. In February, Heyburn ruled that Kentucky must recognize gay marriages legally performed in other states. Then, earlier this month, he ruled that Kentucky's law banning same-sex unions was unconstitutional. (Heyburn also issued a stay preventing any such marriages from occurring until appeals can be heard.)

State Attorney General Jack Conway declined to fight the decisions, but Gov. Steve Beshear has hired outside counsel to appeal the rulings on behalf of the state. The Sixth Circuit Court of Appeals in Cincinnati is scheduled to hear those arguments as well as similar cases from Michigan, Ohio, and Tennessee on August 6.

Arguments for a Ban
On Kentucky Tonight, attorney Stan Cave and policy analyst Martin Cothran of The Family Foundation of Kentucky argue that marriage between one man and one woman as defined in the 2004 amendment to the Kentucky constitution is the best environment for raising children. Cave says his amicus brief filed for the appeal cites 35 studies showing that children raised by a mother and father in the home do better than those reared by same-sex couples.

"It doesn't mean that it's going to work perfectly every time, and it doesn't mean that children of same sex couples cannot do well," Cave explains. "But there is a rational basis for steering heterosexual couples into a marriage for the benefit of the children and society as a whole."

While the Constitution doesn't specifically reference any kind of marriage, Cave argues that states have generally been granted the right to regulate domestic relations. He references Justice Anthony Kennedy's majority opinion in the 2013 U.S. Supreme Court decision in United States v. Windsor to strike down the federal Defense of Marriage Act, in which Kennedy said marriage issues should be the "exclusive province" of sovereign states. Therefore, Cave argues, federal judges shouldn't interfere with how states choose to define marriage.

Cave also points to long-standing American traditions, saying there is no fundamental right granted in the U.S. Constitution or in the history of the country that allows same-sex couples to wed. Yet he and Cothran contend the rational basis for steering heterosexual couples toward marriage - to procreate the species and create a stable family life - makes defining marriage between a man and woman constitutional.

"The only interest that government has in marriage is that it benefits society, and that it benefits children through marital relationships," Cothran says.

Arguments for Same-Sex Marriage
Louisville attorney Dan Canon, who represents same-sex couples wanting to marry, challenges the child welfare studies listed in the Family Foundation's court brief. He says at least one of the studies has been debunked, while other studies referenced in the brief say children do better in two parent homes without specifying the gender of the parents.

Chris Hartman, director of the Fairness Campaign, argues that part of giving children a safe and healthy home life is protecting the rights of the parents. That includes ensuring that both parents can be legal caregivers, and that medical and survivor benefits will accrue to children of same-sex couples. Without a legal definition of marriage that includes same-sex couples, Hartman contends LGBT families would have to purse lengthy and costly legal battles to attain the myriad of privileges that automatically go to heterosexual couples when they marry.

"Conservative and liberal judges alike are moving in the same direction on this issue, recognizing that it’s unconstitutional to deny LGBT families the same rights that all other families enjoy in America," Hartman says.

Canon and Hartman emphasize that the right to marry shouldn't be based on gender of the spouses any more than it should be based on race or religion. They cite the 1967 U.S. Supreme Court decision striking down Virginia's ban on interracial marriages. Canon says that historical precedent or traditional ideas about procreation don't provide a sufficient legal rationale to preclude gay couples from getting married.

"We're talking about restricting an entire group of people from the ability to exercise a right that the Supreme Court has identified as fundamental," Canon argues. "This is about regulating gays and lesbians because people… don't like them."

The 14th Amendment
A key part of federal Judge John Heyburn's decisions on the Kentucky gay marriage ban centers on the equal protection clause of the 14th Amendment to the U.S. Constitution. The panel on Kentucky Tonight debated that point and the greater impact of Heyburn's rulings.

Cases Move to Higher Court
Attorneys for both sides of the Kentucky cases will have 15 minutes to present their arguments to the Sixth Circuit Court of Appeals next month. The court will hear five separate same-sex marriage cases that day.

Attorney Stan Cave expects the judges to overturn Heyburn's decisions. If the cases make it to the U.S. Supreme Court, Cave says he believes those justices will rule 5-4 in favor of traditional marriage.

Dan Canon, the attorney representing gay couples, says if the appellate court is able to analyze the case law and respect the Constitution, then they will uphold the Heyburn rulings.

Watch the full Kentucky Tonight program.