Governor Beshear believes that the state has a right to be in your bedroom.

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COMMONWEALTH OF KE,NTUCKY
FRA.NKLIN COL]NTY CIRCUIT COURT
CIVIL ACTION NO. 13-CI-O1O7O4
Consolidated with
CIVIL ACTION NO. 14-CI-04322
KENTUCKY EQUALITY FEDERATION, Ct AI.
V.
STEVE BESHEAR, in his official
capacity as Govemor of Kentucky, et al.
and
PLAINTiFFS,
DEF'ENDANTS,
PLAINTIFFS,
DEFENDANTS.
DAVID
V.
STEVE
capacity
HARDEE, et al.
BESHEAR, in his official
as Govemor of Kentucky, et al.
RESPONSE OF DEFENDANT STEVEN L. BESHEAR,
IN HIS OFFICIAL CAPACITY AS GOVERNOR OF KENTUCKY, TO PLAINTIFFS'
MOTION FOR JUDGMENT ON THE PLEADINGS
Comes now Defendant Steven L. Beshear, in his official capacity as Governor of
Kentucky ("Defendant Beshear"), in response to Plaintiffs' Motion for Judgment on the
Pleadings and states that the Motion should be denied and the Complaint dismissed as a matter of
law.
INTRODUCTION
Plaintiffs ask this Court to set aside Kentucky's statutory and constitutional prohibition
against same-sex marriages based upon the Supreme Court's decision tn United States v.
Windsor.l33 S.Ct. 2575 {2013), which declared that the federal goverr}rnent could not take away
a state's exercise of its sovereign right to recognize same-sex marriage if it chose to do so.
lJothing in Windsor, however, compels this Court to remove this divisive and sensitive issue
from the political process and out of the reach of voters. To the contrary, Windsor, left that
important mechanism in place.
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2. conceivable state of facts" supporting the perceived discrimination in KRS 342.316(7), now (8),
the statute does not violate the Equal Protection Clause and must be upheld even if it is perceived
to be unwise, unfair or illogical.")'
Likewise, ,,[i]t is entirely irrelevant for constitutional purposes whether the conceived
reason for the challenged distinction actually motivated the legislature, A legislative choice,
under the rational basis test, will not be subject to courtroom fa-ct-finding and may be based on
rational speculation unsupported by evidence or empirical data." Com. ex rel. Stumbo v'
crutchfield. 157 s.w.3 d 621,62a (Ky.2005) (internal citarions omitted). The burden of proof is
on the persons challenging the law, not the Commonweaith. "Moreover, the state does not have
the burden of establishing that a statute is constitutional. Rather the one challenging the
legislation has that burden. The state has no obligation to produce evidence to sustain the
rationaiity of statutory classifications. A statute is presumed constitutional." Howard, 969
S.W.2d at703.
2. The Commonwealth's interest is rationallv related'
It is axiom"tr" ion of the human race and that only
manrwoman couples can naturally procreat e. See Skinner v. State of Okl" ex rel. Williamson, 316
U.S. 535, 541 (1942) ("}rdawiage and procreation are fundamental to the very existence and
survival of the race."), and Maynard v. Hill,125 U.S. 190,211 (1888)(characteizing marriage as
,,the foundation of the family and of society, without which there would be neither civilization
nor progiess"). Encouraging, promoting, and supporting the formation of relationships that have
the natural ability to procreate furthers the Commonwealth's fundamental interest in ensuring
humanity's continued existence.
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3. 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 joumals and news sources to see the correlation betu'een a society's birth rates and its
long-term ability to support a strong economy' See, e.g., Hov' Declining Birth Rates Hurt
Global Economies, National public padis (oct. 3. 2011) (transcript reprinted at 4a&w.np-I-Qrg
pg) (copy attached at
Exhibit 1). On August 13,2Al3,The New York Times reported that "[t]here is perhaps nowhere
better than the German countryside to see the dawning impact of Europe's 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 Nichol as, Germany Fights PopulationOrop, N.Y'
Times, August 13, 2013,
population-drop.html. (Copy attached at Exhibit 2). The economic crisis created from declining
birth rates 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 goverrlment 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 Abe's administration assigned 3
billion yen ($32.5 miilion) for birthrate-bocsting programs in this fiscal year's 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.aulaction/printArticle?id:30026715.(Copy attached at Exhibit 3).
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France has undertaken measures to improve its declining bi*h rates as well' The
govemment 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 Grov,s Grayer, Fronce Devices a Baby Boom, The
Washington Post, October 18, 2006. http : //u,ashingtonpo st. comlwp-dvnlcontent/
article/2006/10/17lAR2006101701652.html. (Copy attached at Exhibit 4).
Kentucky has an interest in the continuation of the human race. it likewise has an
economic interest in fostering a steady population growth to supporl economic activity. An
interest in the continuation of the humanity and the promotion of stable birth rates does not
equate with an argument that Kentucky cannot afford to recognize same-sex marriage or that
Kentucky's economy would suffer by recognition of same-sex marriage. That argument has not
been proffered nor would it be. Just as goverrlmental policies around the globe promote
population growth - the continued existence of humanity, so does Kentucky's traditional
marriage policy.
The fact that Kentucky does not require married couples to procreate or that
heterosexual couples unable to conceive are allowed to marry does not affect the rationality of
the Commonwealth's interest. This same "line drawing" argument was rejected tn 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
itut rt" 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
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reminded, however, that 'abstract symmetry' is not demanded by the Fourteenth
Amendment.
Baker,1g1 N.W.2dat1g7. Further,theSupremecourthasrepeatedlystatedthatthestateisnot
required to draw perfect lines in its classifications. "[c]ourts are compelled under rational-basis
review to accept a legislature's 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
mathematical nicety or because in practice it results in some inequality'"' Heller' 509 U'S' at
321 (internal citations omiued). Therefore, that infertile man-woman couples are allowed to
marry does not nullify the rational basis for a man-woman maffrage classification' See also
Dandridge v. l4/illiams,3g7 U.S, 471, 4g6-g7 (1970x"[T]he Equal protection clause does not
require that aState must choose between attacking every aspect of a problem or not attacking the
problem at all. It is enough that the State's action be rationally based and free from invidious
discrimination.")(internal citations omitted)'
Likewise, any argument that procreation would not be diminished by allowing same-sex
arguments is misplaced and mis-states the proper standard. Kentucky is not required to
demonstrate that offering the marriage benefit to same-sex couples would impede the state's
interest in procreation. 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,
estabiished, recorded, or those that may have even occured to the defendant' See FCC v' Beach
Communications, 1nc.,508 U.S.307,313 (i993),and Railroad Retirement Boardv' Fritz' 449
u.s. 166 (1e80).
The Supreme Court has clearly expressed that "when . . . the inciusion of one group
promotes a legitimate goverrlment purpose, and the addition of other groups would not' we
cannot say that the statute's classification of beneficiaries and non-beneficiaries is invidiously
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discriminatory." Johnson v. Robison 415 U.S. 361, 383 (1974). Same-sex couples cannot
naturally promote Kentucky's legitimate pulpose of procreation' The exclusion of same-sex
couples from receipt of marriage benefits (i.e., tax and other benefits) when they do not promote
Kentucky's legitimate purpose is not invidiously discriminatory.
Johnson demonstrates that even though same-sex couples may benefit from the benefits
associated with marriage and even though same-sex couples may share characteristics with
opposite sex couples, those factors are not enough to require the state to make the benefit
available to them. ln Johnson, the Supreme Court considered whether the govemment vioiated
former Selective Service registrants' Bqual Protection rights where veterans' educational benefits
were offered to draftees who served on active duty in the Armed Forces but not to Selective
Service registrants who were conscientious objectors and served in alternative civilian service.
Both groups were out of the job force during the time of their service, both had their lives
disrupted as a result of their mandatory service and both would have benefited from receipt of
the government benefits.
The Supreme Court, however, found no Equal Protection violation by Congress' decision
to limit educational benefits to those who served on active duty. The Court held that the
statutory classification was rationally related to the objectives of the statute which were to help
induce registrants to volunteer for the draft or seek a lower Selective Service classification and to
make military service more palatable to a draftee and thus reduce the draftee's unwillingness to
be a soldier. Id. at382. The Court found that the two groups were not similariy situated because
military service with educational benefits was more attractive to an active sen,ice draftee than
military service without benefits. Educational benefits made no difference to the attractiveness
of the military for a conscientious objector whose refusal to actively serve was based upon
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7. deeply held religious beliefs. The Court also rejected the notion that even though both groups
had been displaced from their routines during the time of their service and even though both
would have benefited from the educational beneflt, "a common characteristic shared by
beneficiaries and non-beneficiaries alike, is not sufficient to invalidate a statute when other
characteristics peculiar to only one group rationally explain the statute's different treatment of
the tw'o groups." Id. at 378. Thus, the Courl held that offering educational benefits to the
conscientious objectors would not have promoted the govemment's interest in making the
Armed Sen ice more attractive and there was no violation of the Equal Protection ciause based
upon the classifi cations.
Similarly, even though same-sex couples and opposite-sex couples may share some
similarities and even if recognizing marriage between same- sex couples would not reduce
procreation, as Plaintiffs allege, offering same-sex couples the state benefit of marriage
recognition does not promote Kentucky's legitimate interest in procreation. Offering the benefit
to opposite-sex couples does, however. Thus, there is no "invidious discrimination" by
excluding same-sex couples from the state benefit.
C. The Equal Protection principles of lovrrrg v. Zirgrt ia are not implicated with
same-sex marriage.
At a prior conference, this Court questioned how denial of a marriage license to same-sex
coupies could be squared with the principles of Loving v. Virginia, 338 U.S. | (1967), which held
that anti-miscegenation lau,s that prohibited mixed race couples from marrying violated the
Equal Protection laws. The Loving Court recognized that the anti-miscegenation laws had been
passed specifically to discriminate on the basis of race and that a person's race has no
relationship to any interest of the state with regard to marriage. The Court recognized that the
Fourteenth Amendment has been passed solely to prohibit racial discrimination. Consequently,
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