/ 
COMMONWEALTH OF KE,NTUCKY 
FRA.NKLIN COL]NTY CIRCUIT COURT 
CIVIL ACTION NO. 13-CI-O1O7O4 
Consolidated with 
CIVIL ACT...
conceivable state of facts" supporting the perceived discrimination in KRS 342.316(7), now (8), 
the statute does not viol...
The continued expansion of the population through stable birth rate growth fosters long-term 
economic stability, unquesti...
r 
France has undertaken measures to improve its declining bi*h rates as well' The 
govemment has adopted a policy of enco...
I 
reminded, however, that 'abstract symmetry' is not demanded by the Fourteenth 
Amendment. 
Baker,1g1 N.W.2dat1g7. Furth...
I 
discriminatory." Johnson v. Robison 415 U.S. 361, 383 (1974). Same-sex couples cannot 
naturally promote Kentucky's leg...
deeply held religious beliefs. The Court also rejected the notion that even though both groups 
had been displaced from th...
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Governor Beshear's Case

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

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Governor Beshear's Case

  1. 1. / 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. l.Orrr,ru-, 1 I
  2. 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. lO.rrr,ru-, 1 1 6
  3. 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). l*Orrrlnu-, 117
  4. 4. r 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 l,Ornr,ru-, 1 1 8 / '-
  5. 5. I 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 l.Orrilnu-, 119
  6. 6. I 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 l*Ornrtnu-t 120
  7. 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, loorrrrru-t 21

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