Each of the four states with 6th Circuit — Michigan, Ohio, Kentucky and Tennessee — were set to file briefs before the Supreme Court on Friday in the aftermath of filings calling for a nationwide decision in favor of marriage equality.
In a 56-page brief, attorneys for Kentucky Gov. Steve Beshear, a Democrat who’s defending his state’s marriage ban in court, argues the law should survive a challenge in court because only opposite-sex marriages further the government interest of procreation.
“Kentucky’s marriage laws that limit the issuance of marriage licenses and recognition of out-of-state marriage licenses to man-woman couples are rationally related to the state’s interest in furthering procreation,” the brief says. “Same-sex couples do not further that interest and, therefore, restricting the benefits and burdens of marriage do not violate the Fourteenth Amendment.”
The Ohio and Tennessee cases seek recognition of same-sex marriages performed in other states. The states in this litigation make the case a ruling in favor of allowing states to refuse marriage licenses to same-sex couples means the court should also allow states to prohibit recognition of out-of-state nuptials.
In a 59-page filing, Ohio Attorney General Mike DeWine urges the Supreme Court to uphold prohibitions on same-sex nuptials on the basis that its ruling against the Defense of Marriage Act doesn’t affect state bans and the Fourteenth Amendment doesn’t require states to recognize out-of-state unions.
“Ohio concedes that if this court rejects all grounds for retaining marriage’s traditional definition, States may not refuse to recognize out-of-state same-sex marriages,” DeWine writes. “But the opposite is also true. If Ohio may constitutionally retain that traditional definition, it may constitutionally prevent this important public policy from being eroded by a quick trip to a nearby State.”
In a 61-page filing, Tennessee Attorney General Herbert Slattery III makes a similar case that the Fourteenth Amendment doesn’t require states to recognize same-sex marriages performed in other jurisdictions.
“In our federal system, States are equal sovereigns, and one State may not impose its policy choices on another State,” Slattery writes. “This proposition has particular force in an area of traditional state concern like marriage. Over the last 12 years, some States have expanded their definitions of marriage, and petitioners insist that the remaining States must fall in line and adjust their own policies to match that expanded definition. The Fourteenth Amendment does not compel such a result.”
The next step is for opponents of same-sex marriage to file friend-of-the-court briefs in favor of bans on same-sex marriage. Those filings are due April 3.