The state of Kentucky wants to prevent same-sex marriage. But it’s totally not a discriminatory move, because, you see, they absolutely want to stop gay weddings for straight people as much as they want to stop gay weddings for gay people.
“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,” Beshear said in a brief filed with the Supreme Court on March 27.
I suspect Kentuckians would take a different attitude if the state decided to implement the opposite policy — that it would grant licenses for marriages between same-sex persons, but no one would be allowed to marry opposite sex persons. I’m thinking the, “But gay people can’t get straight-married either!” would be a lot less convincing.
This is, frankly, an absurd defense. Like the Supreme Court’s 1883 Pace v. Alabama decision that found that racial miscegenation laws weren’t discriminatory because they applied equally regardless of the defendants’ individual race, this argument focuses on the application but ignores the purpose of the law. These laws specifically target couples in a discriminatory fashion. They’re designed to impact — and discriminate against — same-sex couples rather than opposite-sex couples by targeting one kind of union but not the other; so, by design, the law has no actual impact on heterosexual couples. That doesn’t change the fact that it is completely discriminatory.
But, really, Kentucky, when your best defense is, “But my gay marriage ban stops straight people from getting gay married, too, so it isn’t discrimination!” it might be time to call it quits…
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