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NO. 14-5818
_________________________________________________

IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________________________________________

TIMOTHY LOVE, et al.
INTERVENING PLAINTIFFS/APPELLEES

v.

STEVE BESHEAR, in his official capacity as Governor of Kentucky
INTERVENING DEFENDANT/APPELLANT



On Appeal from United States District Court
for the Western District of Kentucky
Hon. John G. Heyburn II, Judge
Civil Action No. 3:13-CV-750-JGH

___________________________________________________________

REPLY BRIEF
FOR INTERVENING DEFENDANT/APPELLANT,
STEVE BESHEAR, IN HIS OFFICIAL CAPACITY
AS GOVERNOR OF KENTUCKY
___________________________________________________________

Leigh Gross Latherow
William H. Jones, Jr.
Gregory L. Monge
VANANTWERP, MONGE, JONES, EDWARDS & McCANN, LLP
1544 Winchester Avenue, Fifth Floor
Ashland, KY 41105-1111
Telephone (606) 329-2929; Telefax (606) 329-0490
Counsel for Appellant, Steve Beshear, in his official
capacity as Governor of Kentucky
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TABLE OF CONTENTS
Page

TABLE OF CONTENTS ....................................................................................... i

TABLE OF AUTHORITIES ................................................................................. ii

ARGUMENT ......................................................................................................... 1
I. Sexual Orientation is Not a Protected Class in the Sixth Circuit. ................ 1
II. Windsor is not a Doctrinal Development that Renders Baker
Meritless....................................................................................................... 3

III. Kentucky is Not Required to Demonstrate that Excluding Same-Sex
Couples from Marrying will Burden Kentuckys State Interest. ................ 4

CONCLUSION ...................................................................................................... 6

CERTIFICATE OF COMPLIANCE ..................................................................... 8

CERTIFICATE OF SERVICE .............................................................................. 8




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TABLE OF AUTHORITIES
Page
Baker v. Nelson
191 N.W.2d 185 (Minn. 1971),
appeal dismissed by 409 U.S. 810 ............................................................... 3

Bonner v. Perry
564 F.3d 424 (6
th
Cir. 2009) ........................................................................ 1

Bostic v. Schaefer
2014 WL 370249 (4
th
Cir. July 28, 2014) ................................................... 5

City of Cleburne v. Cleburne Living Ctr.
473 U.S. 432 (1985) .................................................................................... 4

Darrah v. City of Oak Park
255 F.3d 301 (6
th
Cir. 2001) ................................................................... 1-2

Davis v. Prison Health Servs.
679 F.3d 433 (6
th
Cir. 2012) ....................................................................1, 3

Frantz v. Village of Bradford
245 F.3d 869 (6
th
Cir. 2001) .................................................................... 1-2

Johnson v. Robinson
415 U.S. 361 (1974)................................................................................. 5-6

Lawrence v. Texas
539 U.S. 558 (2003)..................................................................................... 3

Matthews v. Diaz
426 U.S. 67 (1976)...................................................................................... 6

Maxwells Pic-Pac, Inv. v. Dehner
739 F.3d 936 (6
th
Cir. 2014) .................................................................... 4-5

Northville Downs v. Granholm
622 F.3d 579 (6
th
Cir. 2010) ........................................................................ 4

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Phillip v. U.S.
229 F.3d 550 (6
th
Cir. 2000) ........................................................................ 1

Romer v. Evans
517 U.S. 620 (1996)..................................................................................... 3

Scarbrough v. Morgan Cnty Bd. of Educ.
470 F.3d 250 (6
th
Cir. 2006) ........................................................................ 1

Spurlock v. Satterfield
167 F.3d 995 (6
th
Cir. 1999) ........................................................................ 2

United States v. Windsor
133 S.Ct. 2675 (2013) .............................................................................. 3-4













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ARGUMENT
I. Sexual Orientation is Not a Protected Class in the Sixth Circuit.
Intervening Plaintiffs reliance upon Darrah v. City of Oak Park, 255 F.3d
301 (6
th
Cir. 2001), as a basis to overrule Davis v. Prison Health Servs., 679 F.3d
433 (6
th
Cir. 2012), and Scarbrough v. Morgan Cnty Bd. of Educ., 470 F.3d 250
(6
th
Cir. 2006), is misplaced. Darrah does not stand for the proposition that one
panel of this Court may ignore or reverse a prior panels decision based upon a
Supreme Court case published and in the books at the time the prior panels
decision was made. To the contrary, the only basis upon which a panel of this
Court may ignore or reverse a prior panels conclusion is where there is an
intervening conflicting Supreme Court case or the Sixth Circuit sitting en banc
overrules the prior decision. See Phillip v. U.S., 229 F.3d 550, 553 (6
th
Cir. 2000)
(holding that [t]here has been no relevant intervening change in Supreme court
authority to allow overruling the prior panels decision) (emphasis added);
Bonner v. Perry, 564 F.3d 424, 431 (6
th
Cir. 2009) (refusing to overrule prior panel
decision because plaintiff did not cite any intervening Supreme Court decision
that would allow us to reconsider the issue.) (emphasis added).
The issue before the Court in Darrah was whether the Fourth Amendment
supported a claim of malicious prosecution independent of the underlying illegal
seizure. Darrah, 255 F.3d at 308. Shortly before Darrah was decided, a panel of
the Sixth Circuit in Frantz v. Village of Bradford, 245 F.3d 869 (6
th
Cir. 2001),
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broke ranks from the ranks of nine other circuit courts of appeals and held that
the Fourth Amendment did not support a separate claim. The Darrah Court noted
that Frantz erroneously chose to disregard Spurlock v. Satterfield, 167 F.3d 995
(6
th
Cir. 1999), in which an earlier Sixth Circuit panel had interpreted the
controlling Supreme Court case in exactly the opposite manner.
In trying to resolve the conflict, the Darrah Court did not make an
independent examination of the controlling Supreme Court case. Instead, the panel
recognized its obligation to defer to the earliest panel. The Court held that when a
later decision of this court conflicts with one of our prior published decisions, we
are still bound by the holding of the earlier. In deference to both prior panels, the
Darrah Court proceeded to analyze the claim under both of the prior panels
standards and found that the plaintiffs malicious prosecution claim would be
unsuccessful under either standard.
Darrah does not stand for the proposition that if a panel disagrees with a
conclusion reached by a panel of this Court that the panel may cite a Supreme
Court decision that was in the books at the time of the previous panels decision
as a basis to ignore the panels unambiguous ruling. Such a holding would
eviscerate the rule that a prior panels decision must be followed, even if a
subsequent panel disagrees with the conclusion reached by the previous panel.
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Therefore, Intervening Plaintiffs argument that Davis, which was issued in
2012, nine years after Lawrence v. Texas, 539 U.S. 558 (2003), and sixteen years
after Romer v. Evans, 517 U.S. 620 (1996), can be revisited by this panel is simply
incorrect.
II. Windsor is not a Doctrinal Development that Renders Baker
Meritless.

Intervening Plaintiffs contention that United States v. Windsor, 133 S.Ct.
2675 (2013), is a doctrinal development that supports ignoring Baker v. Nelson,
409 U.S. 810 (1972), overstates Windsor. The district court and Intervening
Plaintiffs cherry pick language from Windsor in an effort to federalize the
regulation of marriage. At its core, Windsor is a federalism case upholding the
historic rights of the states to regulate domestic relations, not a case that allows the
federal government to side step the democratic process to re-define marriage for
the entire nation based upon the marital definition chosen by a minority of the
states.
Windsor invalidated a federal law by which Congress impermissibly
interfered with the states historic and essential authority to define the marital
relation. Id. at 2692. Section 3 of DOMA was invalidated precisely for the same
reason that this Court should refrain from interfering with Kentuckys right to
define marriage according to the formation of consensus respecting the way
[Kentuckians] treat each other in their daily contact and constant interaction with
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each other. Id. The federalism principles of Windsor apply equally to states that
have defined marriage to include same-sex marriage and those that have not. That
is, for those states where same-sex marriage is recognized, the federal government
is barred from redefining marriage in a manner inconsistent with the consent of the
citizens of those states. Likewise, for those states where same-sex marriage is not
recognized, the federal government is barred from redefining marriage in a manner
inconsistent with the consent of those citizens. Windsor stands for the proposition
that regulation of marriage and the definition of what constitutes a marriage falls
under the sovereign province of the states not the federal government. Intervening
Plaintiffs seek the invervention of the courts to avoid the political process through
which same-sex couples have obtained these benefits in other states.
III. Kentucky is Not Required to Demonstrate that Excluding Same-Sex
Couples from Marrying will Burden Kentuckys State Interest.
The deference a court must afford to the validity of legislative actions under
the rational basis test was clearly affirmed earlier this year by this Court in
Maxwells Pic-Pac, Inv. v. Dehner, 739 F.3d 936 (6
th
Cir. 2014). Under
Maxwells, Kentuckys same-sex marriage legislation is presumed to be valid and
will be sustained if the classification drawn by the statute is rationally related to a
legitimate state interest. Id. at 940 (quoting City of Cleburne v. Cleburne Living
Ctr., 473 U.S. 432, 440 (1985), and Northville Downs v. Granholm, 622 F.3d 579,
586 (6
th
Cir. 2010)).
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In their Brief, Intervening Plaintiffs offer no legal support for the district
courts conclusion that Kentuckys marriage legislation cannot meet the rational
basis test unless Kentucky can establish that excluding same-sex couples impacts
the number of heterosexual couples who get married, the number who choose to
have children, or the number they have. (DE091, Memorandum, Opinion and
Order, Page ID #1303). The district courts creation of a new standard by which to
judge Equal Protection cases is inconsistent with both Maxwells and the Supreme
Courts clear holding in Johnson v. Robinson, 415 U.S. 361, 383 (1974), that
[w]hen . . . the inclusion of one group promotes a legitimate governmental
purpose, and the addition of other groups would not, we cannot say that the
statutes classification of beneficiaries and nonbeneficiaries is invidiously
discriminatory. Here, Kentuckys legitimate interest in procreation is furthered
only by offering the benefits of marriage to man-woman couples.
In furtherance of the explanation of the above, Defendant respectfully refers
the Court to the recently issued Fourth Circuit Court of Appeals case Bostic v.
Schaefer, 2014 WL 3702493(4
th
Cir. July 28, 2014). Judge Niemeyer in his dissent
agreed that Virginia has a rational basis for its granting marriage benefits to man-
woman couples and that excluding same-sex couples from obtaining these state
benefits does not violate the Equal Protection Clause:

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When the Commonwealth grants a marriage, it does not simply give
the couple a piece of paper and a title. Rather, it provides a
substantial subsidy to the married couple economic benefits that, the
plaintiffs repeatedly assert, are being denied them. For example,
married couples are permitted to file state income taxes jointly,
lowering their tax rates. [citation omitted]. Although indirect, such
benefits are clearly subsidies that come at a cost to the
Commonwealth. Under Johnson, the Commonwealth is not
obligated to similarly subsidize same-sex marriage, since doing so
could not possibly further its interest. This is no different from
subsidies provided in other cases where the Supreme Court has upheld
line-drawing, such as Medicare benefits, Matthews v. Diaz, 426 U.S.
67, 83-84 (1976), or veterans educational benefits, Johnson, 415 U.S.
at 383.

Id. at *27 (emphasis added). Therefore, just as providing veterans educational
benefits to conscientious objectors would not have furthered Congresss legitimate
interest in encouraging voluntary enlistment, so would providing marriage benefits
to same-sex couples not promote Kentuckys legitimate societal and economic
interests in natural procreation. Thus, excluding same-sex couples from the state
marriage benefit does not violate the Equal Protection Clause.
CONCLUSION
Intervening Plaintiffs, in good faith, seek through the judicial process to
create a new fundamental right in Kentucky one that would allow them to enter
into a marriage with a member of the same sex and thus avoid the political process,
which marginalizes those citizens who, in good faith, disagree with Intervening
Plaintiffs. Defendant submits that, as has been done in other states, this important
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public policy issue should be resolved through the political process not the
judiciary.
Respectfully submitted,
/s/ Leigh Gross Latherow
Counsel for Appellant
Steve Beshear, in his official capacity
as Governor of Kentucky
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CERTIFICATE OF COMPLIANCE
The undersigned counsel certifies that this Brief does not exceed the page
limitation set forth in Fed. R. App. P. 32(a)(7)(B). The type-volume of Appellants
Reply Brief contains 1,474 words, excluding the parts of the Brief exempted by
Fed. R. App. P. 32(a)(7)(B)(iii).
/s/ Leigh Gross Latherow
Counsel for Appellant
Steve Beshear, in his official capacity
as Governor of Kentucky
Dated: July 31, 2014



CERTIFICATE OF SERVICE
It is hereby certified that on July 31, 2014, I electronically filed the
foregoing with the Clerk of Court for the Sixth Circuit Court of Appeals using the
CM/ECF system.
/s/ Leigh Gross Latherow
Counsel for Appellant Steve Beshear,
in his official capacity
as Governor of Kentucky
Dated: July 31, 2014


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