March 4, 2014 | by Chris Johnson
Ky. guv to defend marriage ban without attorney general

Steve Beshear, Kentucky, Democratic Party, gay news, Washington Blade

Gov. Steve Beshear (D-Ky.) will defend the state’s marriage ban in court without the attorney general (Photo public domain).

The governor of Kentucky announced on Tuesday that he intends to appeal a ruling against the state’s ban on same-sex marriage to a higher court on the same day the state’s attorney general declared he would no longer defend the law.

Gov. Steve Beshear announced he’ll hire other counsel to represent the state in the case, known as Bourke vs. Beshear, in addition to appealing the district court decision against the marriage ban the U.S. Sixth Circuit Court of Appeals.

“General Conway has advised me that he will no longer represent the Commonwealth in Bourke vs. Beshear,” Beshear said. “The State will hire other counsel to represent it in this case, and will appeal Judge Heyburn’s decision to the Sixth Circuit U.S. Court of Appeals and ask the court to enter a stay pending appeal.”

As Beshear notes, U.S. District Judge John Heyburn ordered the state to recognize out-of-state same-sex nuptials following his ruling last month against the state’s constitutional ban on same-sex marriage. Heyburn, an appointee of President George H.W. Bush, also took on the question of whether the state can prohibit same-sex couples from marrying within its borders.

“Both of these issues, as well as similar issues being litigated in other parts of the country, will be and should be ultimately decided by the U.S. Supreme Court in order to bring finality and certainty to this matter,” Beshear said. “The people of this country need to know what the rules will be going forward. Kentucky should be a part of this process.”

Heyburn ordered the state to recognize out-of-state same-sex marriages, but later issued a 21-day stay in his order, allowing Kentucky to wait to recognize until March 20.

In addition to defending the law, Beshear said he’ll seek a continued stay on that order until the U.S. Supreme Court resolves the issue.

“In every other appeal currently in process, a stay has been entered maintaining the status quo until a final decision is reached on appeal,” Beshear said. “The reason is obvious. Without a stay in place, the opportunity for legal chaos is real. Other Kentucky courts may reach different and conflicting decisions.”

Beshear announces he’ll continue defending the state’s ban on same-sex marriage after Kentucky Attorney General Jack Conway announced earlier on Tuesday he’ll no longer defend the law in court.

“I have evaluated Judge Heyburn’s legal analysis, and today am informing my client and the people of Kentucky that I am not appealing the decision and will not be seeking any further stays,” Conway said.

After reviewing the judge’s order, Conway said Heyburn “got it right” with his decision against the marriage ban.

“From a constitutional perspective, Judge Heyburn got it right, and in light of other recent federal decisions, these laws will not likely survive upon appeal,” Conway said. “We cannot waste the resources of the Office of the Attorney General pursuing a case we are unlikely to win.”

Conway acknowledges that many in Kentucky will disagree with his decision, but he came to the conclusion defense of the law “would be defending discrimination.”

“The United States Constitution is designed to protect everyone’s rights, both the majority and the minority groups,” Conway said. “Judge Heyburn’s decision does not tell a minister or a congregation what they must do, but in government ‘equal justice under law’ is a different matter.”

Conway’s decision follows the announcement from U.S. Attorney Eric Holder that state officials are free to decline to defend bans on same-sex marriage against legal challenges. Other states where attorneys general who have declined their state marriage bans are Oregon, Nevada, Virginia, and Pennsylvania. Much earlier, California Attorney General Kamala Harris declined to defend the ban on California’s Proposition 8 and Holder himself declined to the Defense of Marriage Act against legal challenges.

But the situation in Kentucky is unique in terms of party affiliation because Beshear, a Democrat, is defending the ban, while Conway, also a Democrat, is declining to defend the law. In Nevada, both Gov. Brian Sandoval, a Republican, and Attorney General Catherine Cortez Masto, a Democrat, determined their state’s ban on same-sex marriage was indefensible before the U.S. Ninth Circuit Court of Appeals.

Marc Solomon, national campaign director of Freedom to Marry, heaped praised on Conway for his decision to no longer defend Kentucky’s ban on same-sex marriage in court.

“Today’s decision by Kentucky attorney general Jack Conway echoes that of state attorneys general across America who refuse to defend discrimination,” Solomon said. “Conway stands on the right side of history along with the Republican-appointed Kentucky federal judge who held that there is no legitimate justification for denying equal protection to same-sex couples.”

Brian Brown, president of the anti-gay National Organization for Marriage, on the other hand commended Beshear for continuing to defend the state’s marriage ban.

“He is doing what every elected official, on every level of government across the country should do, defend the laws of the land,” Brown said. “It is absurd that Kentucky’s Attorney General Jack Conway is not doing what he swore to do upon taking office – defending the laws and constitution of the Commonwealth of Kentucky and the judgment of the Kentucky’s citizens who voted overwhelmingly on this issue. We hope that voters hold him to account for abandoning his sworn duty.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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