Governor Steve Bashear of Kentucky is defending an anti-gay marriage law by saying that it cannot be discriminatory because it doesn’t single homosexuals out denying only them the right to marry someone of the same-sex, it also bars heterosexuals from marrying someone of the same-sex. When one hears that on April Fools day it is tempting to think that it must be an April Fools joke, but sadly it is not. That is precisely what Bashear is arguing in a brief filed for the upcoming Supreme Court challenge to his state’s law barring same-sex marriage.
The brief filed on his behalf last week argues:
“Kentucky’s marriage laws treat homosexuals and heterosexuals the same and are facially neutral. Men and women, whether heterosexual or homosexual, are free to marry persons of the opposite sex under Kentucky law, and men and
women, whether heterosexual or homosexual, cannot marry persons of the same-sex under Kentucky law”
Fifty years ago Virginia attempted to use the same argument in defending its law criminalizing inter-racial marriage saying that since under the law whites were prohibited from marrying blacks just as blacks were prohibited from marrying whites there was no discrimination involved in the law.
In that case, Loving v. Virginia, the Supreme Court rejected the argument with Chief Justice Earl Warren writing in the majority opinion:
“There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy.”
Dan Canon, a lawyer representing the six gay couples who brought the suit against the state over the law characterized the argument as “especially absurd” in application to same-sex marriage.
“It’s akin to passing a law banning all Catholic churches within city limits, and then saying it’s not discriminatory because you can still go to a Baptist church,” Canon said.
Sam Marcosson, a professor of constitutional law at the University of Louisville’s Brandeis School of Law, who also happens to be gay weighed in on the governor’s argument in defense of the law as well:
“I wonder what Governor Beshear and his lawyers would say if the shoe was on the other foot, and if the only option for marriage was of the same-sex variety.
Whatever his reasons, the governor has set Kentucky on a course of fighting to preserve invidious discrimination, and he has waged that fight in a deeply embarrassing way. The taint to his legacy will be difficult for history to ignore.”
Bashear is not without his defenders however. Mathew Staver, dean of the prestigious Liberty University School of Law said that unlike inter-racial couples same-sex couples are not “similarly situated” by virtue of history or biology, suggesting the old religious right argument that homosexuality is a choice consciously made and not protected by the Fourteenth Amendment.
h/t: Huffington Post