US: Attorney for Kentucky Governor argues that gay couples ‘can’t naturally procreate’ so shouldn’t marry

Illustrated rainbow pride flag on a white background.

Attorneys acting on behalf of the Governor of Kentucky have argued that same-sex couples should not be allowed to marry because they cannot “naturally procreate.”

The lawyers went on to say that in the interest of maintaining the state’s economy, procreation must be a priority in issuing marriage licences.

The Kentucky Governor Steve Beshear has hired a private law firm to appeal a ruling that found the state must begin to recognise same-sex marriages, after the Attorney General declined to contest it.

Earlier this year, US District judge John G Heyburn instructed the state to immediately start recognising same-sex marriages from other states.

Attorney General Jack Conway declined to appeal the ruling on behalf of the state last week, saying that “Judge Heyburn got it right”.

Arguing on the Governor’s behalf was attorney Leigh Gross Latherow, who wrote: “Same-sex couples are materially different from traditional man-woman couples,

“Only man-woman couples can naturally procreate,” Latherow continued. “Fostering procreation serves a legitimate economic interest that is rationally related to the traditional man-woman marriage model. Thus, same-sex couples are not similarly situated to man-woman couples, and the distinction drawn by Kentucky’s statutes is rationally related to a legitimate interest of Kentucky.”

Latherow went on to argue that same-sex couples expected to be given a “new right”, rather than just equal rights to that of opposite-sex couples.

“They want to redefine the right [of marriage] and create 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,” she wrote.

“It is well-established that courts should not readily create new fundamental rights.”

Attorneys acting on behalf of the plaintiffs in the case have dismissed these arguments as “ridiculous”, noting that many opposite-sex married couples do not have children, and that a guarantee of procreation is not currently required to obtain a marriage licence.

“This is not a rational basis for state interest in who can marry,” argued attorney Laura Landenwich, who represents gay couples in the lawsuit.

“You don’t, when you apply for a marriage license, have to check a box stating that you will procreate. Marriage is about a lot of things — love, sharing, responsibility. Children can be a big part of that, but they aren’t present in every marriage.”

Despite that the state’s Attorney General will not appeal the case, Beshear said an appeal was necessary to avoid “legal chaos”.