The state of Kentucky, fighting to keep its gay marriage ban, posed an unexpected argument in defense of its voter-approved amendment last week.
Gov. Steve Beshear insisted that the ban is not unconstitutional because neither homosexual nor heterosexual people can marry people of the same sex.
"Kentucky's marriage laws treat homosexuals and heterosexuals the same and are facially neutral," Beshear wrote in a legal brief filed Friday.
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."
Gov. Beshear also contended that "there is no fundamental right to same-sex marriage."
Dan Canon, the lawyer representing the six gay couples opposing the state's ban, called Beshear's argument "especially absurd."
"Kentucky is in essence saying that our clients are precluded from marriage entirely, unless they change their sexual orientation (or simply marry someone to whom they are not attracted)," he told the Courier-Journal via email.
"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."
Biblical marriage has been the only legal form of marriage in Kentucky since 1998. Voters upheld biblical marriage in 2004, when they passed a constitutional amendment defining marriage as the union between a man and a woman.
Lawsuits contesting the gay marriage ban were consolidated in the last two years, and are currently being reviewed by the US Supreme Court. Bans in Ohio, Michigan, and Tennessee are also being reviewed.
The Court is expected to make its rolling in the coming months.
