The Steve Beshear case

How a hero of Obamacare became a foe of gay rights

Like many Kentuckians who voted for Governor Steve Beshear, I found myself stunned by his uncharacteristic embrace of discrimination in opposing equal rights of citizenship to Kentucky gays and lesbians. But what really struck me was Beshear's adoption of some of our country's most racist legal rationale in order to support his case.

Joel Pett in the Herald-Leader

Specifically, in Berea v. Commonwealth (1908), the court fully accepted pseudoscientific notions of racial inferiority that flew in the face of the Fourteenth Amendment. Following the U. S. Supreme Court’s acceptance of de jure racial segregation in Plessy v. Ferguson (1896), Jim Crow laws swept the South and separated people by race in public accommodations, on public carriers and in the public schools. The court’s justifications ultimately relied on an unquestioned belief in anti-miscegenation laws and the attending prejudices which the court held to be “nature’s guard to prevent the amalgamation of the races.”

Today, opponents of marriage equality are passing religious freedom measures designed to create discriminatory loopholes based on individual religious justifications. Despite Indiana Governor Mike Pence's recent protestations that the religious freedom act he signed was never intended to allow discrimination, he has now backed away, and asked his state legislature to immediately change the law to ensure it would not discriminate against gays and lesbians.

In the 19th century the courts routinely denied the privileges and immunities, due process, and equal protection clauses of the Fourteenth Amendment, under the infamous notion that citizens’ rights could be maintained separately and still offer equality. The courts reasoned that the 14th amendment was not violated because it applied equally to all races. Whites could not associate with Blacks, and Blacks could not associate with Whites.

When that idea was later overturned by the Supreme Court in Brown v Board of Education (1954), the Court cited Berea v. Commonwealth and the college’s attempt to overturn Kentucky’s infamous Day Law as one of as handful of cases where American courts had “labored with” the “separate but equal” doctrine for more than a half century. It is dispiriting to see that rationale resurrected once again, in defense of discrimination.

Our legal institutions were once suffused with racism and justifications for racial discrimination. Unfortunately, Governor Beshear has chosen to dust off the old racist arguments of the 19th century for application against marriage equality in the 21st century.

This from the Los Angeles Times:

Kentucky Gov. Steve Beshear is one of the unquestioned heroes of the Affordable Care Act, aggressively expanding Medicaid and supporting a state exchange to the extent that Kentucky has experienced the second-largest reduction in its uninsured rate in the country, with a drop from 20.4% uninsured to 11.9% at mid-2014.

Beshear has been the go-to red-state governor for positive quotes on the ACA, as when he told the Washington Post:

"This is a moral issue.... These folks out here without insurance aren’t a group of aliens from another planet. They are our friends and neighbors. They are people we shop and go to church with. They are the farmers out on the tractors. They are our grocery clerks. They are our former classmates. They are people who go to work every morning praying they don’t get sick. No one deserves to live that way."

So it's a shock to learn that, to gay rights advocates, Steve Beshear is a horror. Or maybe the shock is that, to healthcare advocates, he's a hero.

First, the good news.

Thanks to Beshear, a Democratic governor of a red state, Kentucky has been among the nationwide leaders in bringing health coverage to its citizens, despite relentless opposition from the state's Republican office-holders, including Senate Majority Leader Mitch McConnell.

Kentucky is the southernmost state in the Southeast to have expanded Medicaid along the lines envisioned by the ACA's drafters (although Arkansas belatedly worked out an alternative Medicaid version with federal officials). That move alone brought health coverage to roughly 400,000 Kentuckians, way more than the state expected when it launched the program.

Its state insurance exchange, Kynect, is immensely popular--so much so that when McConnell ran for reelection last year on an anti-Obamacare platform, he took pains to specify that while he would repeal Obamacare, he would save Kynect. (Though as we reported at the time, it would be practically impossible to do both.)

Now the bad news.

Beshear is also a nationwide leader in the pushback against same-sex marriage. Not only that, his administration's arguments for its position are among the most ludicrous that have been posed to the Supreme Court, which will rule on same-sex marriage later this year in a case involving Kentucky and Michigan.

In a brief filed with the court last week in the case of Bourke vs. Beshear, the governor's lawyers argued that Kentucky's law barring same-sex marriage doesn't discriminate against gays and lesbians "based on their sexual orientation."

Why not? Because it doesn't allow anyone--gay, lesbian, or heterosexual--to marry someone of the opposite sex. In other words, it treats them all the same:

"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....
"The fact that, under Kentucky law, only men can marry women and vice versa demonstrates that the Commonwealth's marriage laws are sex neutral and not discriminatory."

What's odd is that this absurd argument isn't even novel. It resembles one made in a landmark 1967 case on interracial marriage, when the state of Virginia argued that its miscegenation law wasn't discriminatory because whites were barred from marrying blacks just as blacks were barred from marrying whites. The Supreme Court overturned the Virginia law.

Beshear's lawyers make one other central argument--that its law barring same-sex marriage is "rationally related" to its interest in furthering procreation. Because they can't have children, the brief says, "same-sex couples do not further that interest."

A similar argument, which overlooks the legality of marriage of infertile or elderly persons, was reduced to a smoking ruin by federal appellate court Judge Richard Posner last year in a decision overturning same-sex marriage bans in Indiana and Wisconsin. He called the states' positions "impossible to take seriously."

It would be a mistake to regard the disconnect between Beshear's support for the ACA and his opposition to same-sex marriage necessarily as a moral failing, disappointing as it may be to some. It could be evidence alternatively of political opportunism, certainly not an uncommon trait among, well, politicians.

It does underscore that governing is a balancing act involving the demands of ideology and special interests and those of administrative expedience.

Which is the real Steve Beshear--the one who regards Medicaid expansion as a moral imperative or the one who acts to deny a basic civil right to gays and lesbians? Who knows? (Though many observers of Kentucky politics might argue that it's Beshear's position on the ACA that's the outlier, and his position on gay rights is the one in tune with the voters.)

Beshear is hardly the first political leader to pursue intellectually incompatible goals simultaneously; even Franklin Roosevelt, commonly regarded as a single-minded progressive, watered down his Wall Street reform bills to mollify Wall Street and refused to back an anti-lynching law demanded by the NAACP because it would tick off Southern Democrats in Congress.

Yes, politics makes strange bedfellows. Sometimes they share the same bed within a single politician's mind.