In oral arguments Wednesday before a federal appeals court, Gov. Steve Beshear's attorney re-emphasized a stance that same-sex should not be allowed because the couples cannot procreate, raising issues for Kentucky's population growth and economy.
The three-judge panel from the U.S. 6th Circuit Court of Appeals will decide the fate of same-sex marriage bans in four states, including Kentucky, as the issue winds its way toward a likely appeal to the U.S. Supreme Court.
The case could prove "pivotal" because, unlike past federal appeals courts that took up the same-sex marriage issue, the 6th Circuit may allow to stand state laws banning such marriage, legal observer Carl Tobias told Kentucky Public Radio before the arguments.
If appeals court affirmed the state laws, these cases would have a greater chance of being argued before the Supreme Court, said Tobias, a law professor at the University of Richmond.
The appeals court will likely render an opinion within the next several months.
On Wednesday, protestors in support of same-sex marriage reportedly led a march on the federal courthouse in Cincinnati as the judges heard nearly three hours of oral arguments on challenges to state-level bans on same-sex marriage in Tennessee, Ohio, Michigan and Kentucky—the most heard at one hearing to date since the Supreme Court struck down the Defense of Marriage Act in 2013.
For Luke Barlowe, an plaintiff in a Kentucky case concerning the recognition of out-of-state same sex marriages, the day was a victory. Barlowe, 72, says the final outcome of the appeal will benefit younger same-sex couples more than it would him and his husband, Jim Meade.
"This is not going to affect out life in any way," Barlowe said. "We just hope it will help other people coming up behind us."
But Kent Ostrander of the conservative Family Foundation of Kentucky, which opposes same-sex marriage, said Kentucky Gov. Steve Beshear's attorney made a more convincing argument.
Leigh Gross Latherow from an Ashland firm represented the state.
"She did a good job. There's many ways to skin a cat, and many ways to argue a case," Ostrander said, adding that he maintains that heterosexual couples are better equipped to raise children than their same-sex counterparts.
"It's common sense," he said.
According to observers on both sides, how the judges ultimately rule may reside with their political pedigrees: Judges Jeffrey Sutton and Deborah J. Cook were both appointed in 2003 by president George W. Bush; Judge Martha Craig Daughtrey was appointed by President Bill Clinton in 1993.
Daughtrey was especially critical of the defense posed by Beshear, in which Latherow argued that because same-sex couples cannot biologically procreate, they cannot contribute to the population growth of the state and therefore cannot contribute to "a strong economy."
"Marriage doesn't mean you have to procreate," Daughtrey said. "There is a right not to procreate, isn't there?"
Some observers suggested that Sutton will be the deciding vote. Sutton's questions seemed equally directed at both sides, and he refrained from the blunt criticism that characterized Daughtrey's inquiries. Cook rarely spoke.
Across the U.S., about 70 active court cases challenge marriage bans; 33 states have either laws establishing marriage equality or have bans on same-sex marriage that have been struck down as unconstitutional, like Kentucky, according to the nonprofit Human Rights Campaign.
A recent Bluegrass poll found that 50 percent of Kentuckians oppose same-sex marriage. It's the lowest opposition since 2004—the year the Kentucky General Assembly pushed through its ban on same-sex marriage. Nationally, a May Gallup poll reports that 55 percent of Americans support same-sex marriage, a 15 percent jump from five years ago.