Monday, May 19, 2014

Some Statements Are Just So Stupid They Deserve Public Ridicule

Some Statements Are Just So Stupid They Deserve Public Ridicule

      Typically, when somebody says something monumentally stupid the best response is none at all, keeping in mind that “There but for the grace of God go I.”  Other times, ridiculous statements deserve to be called out, examples being General Haig’s “I’m in charge,” Al Gore’s “I invented the Internet,” Reagan’s “Trees cause pollution,” and Clinton’s “I did not have sex with that woman.”
      Squarely falling within the classification of statements that are so ridiculous they deserve public ridicule are those of the Commonwealth of Kentucky/Governor Beshear arguing in favor of Kentucky’s Constitutional provision against recognition of same-sex marriages.  See Brief filed with the U.S. 6th Circuit Court of Appeals in Burke v. Beshear, No. 14-5291 (May 7, 2014).
      Earlier this year, Judge Heyburn of the U.S. District Court stuck down, in Burke v. Beshear, that portion of Kentucky law providing, inter alia, that Kentucky will not recognize a same sex marriage solemnized in another state, holding that this statute violates the Equal Protection Clause of the United States Constitution.  Attorney General Jack Conway stated that he would not further defend the statute, an imminently reasonable determination in that every court that has ruled on this question subsequent to the U.S. Supreme Court’s in Windsor has determined that similar statutes violate Equal Protection.  For unknown reasons Governor Beshear determined to pursue the appeal.
      In the Brief filed with the 6th Circuit, it is stated that:
Same-sex couples are materially different from traditional man-woman couples.  Only man-woman couples can naturally procreate.  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.  Brief at 6.
      The Brief goes on to state:
Man-man and woman-woman couples are not similarly situated to man-woman couples in a significant material aspect.  Only man-woman couples have the ability to naturally procreate.  As set forth more fully below, procreation is reasonably related to the object of Kentucky’s traditional marriage statutes.  This distinction between same-sex couples and man-woman couples is critical and provides a lawful basis to treat same-sex couples differently than man-woman couples with regard to the institution of marriage without offending the Equal Protection Clause.  Brief at 15.

      It then continues:
Here, Plaintiffs are not asserting a right to a traditional man-woman marriage, of which procreation can be a natural result, rather they are seeking access to a different institution – a same-sex marriage from which procreation can never actually result.  Brief at 19-20.
     From there the Commonwealth comes to its argument, namely that:
Procreation is “fundamental” to the very existence and survival of the race, and, therefore is a legitimate state interest.  Encouraging, promoting and supporting the formation of relationships that have the natural ability to procreate further is the Commonwealth’s basic and fundamental interest in insuring the existence of the human race.  This alone should be sufficient to satisfy any standard of review.  The Commonwealth, however, has an additional interest in promoting procreation – supporting long-term stability through stable birth rates.
One need look no further than economic journal and news sources to the correlation between a society’s birth rates and its long-term ability to support a strong economy….  The economic crisis created from declining birth rates results from a reduced demand for goods and services and an aging workforce, which results in fewer available laborers and members of the workforce to support social programs….
Kentucky has an economic interest in procreation.  Just as governments around the globe promote procreation and birth rates, so does Kentucky’s marriage policy.  Though there is a cost to Kentucky by granting tax and other benefits to man-woman couples, a stable or growing birth rate offsets the cost.  Only man-woman relationships can naturally procreate and only those relationships, therefore, are afforded the state-sponsored benefit.  The Plaintiffs, however, seek the same tax and other benefits without furthering Kentucky’s legitimate and vital economic interest.  Kentucky’s support for the only type of relationship that can naturally procreate – traditional man-woman couples – by only recognizing traditional marriage is not only rational, but also consistent with sound economic policy.  Brief at 21-24 (citations and footnotes omitted).

      And there you have it:  marriage between heterosexuals may be fostered on the basis that babies result even as the benefits of marriage may be restricted from those who cannot naturally created children.  But if that is the legal requirement, then:
·                     Must traditional heterosexual couples desiring to marry undergo fertility tests and, if one of them is in fact infertile, a marriage license be denied;
·                     Must marriages involving post-menopausal women be forbidden for the simple reasons that those marriages cannot naturally lead to children;
·                     Upon one or the other of the members of a heterosexual couple ceasing to be fertile, must the marriage, by its own terms, be terminated as it no longer supports the creation of baby Kentuckians;
·                     Should heterosexual Kentuckians be required to pledge to have children as a condition to the issuance of a marriage license;
·                     Should there be a fixed period from the marriage within which a child must be born or the benefits of marriage be rescinded; and
·                     On the basis of economic need may the Commonwealth forbid the sale and use of contraceptives?
      I suppose there is somewhere buried in the “reasoning” set forth in this Brief something along the line that gay and lesbians, deprived of the ability to engage in same-sex marriage, will enter into at ersatz heterosexual relationships, thereby possibly creating additional children and taxpayers.
       Of course, all of this is just silly.  The availability of marriage has never been conditioned upon the ability to procreate, and the Commonwealth has opened itself to ridicule by suggesting that it should be able to deprive individuals of the ability to marry based upon procreative capacity if and only if the two persons who desire to marry are of the same sex.

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