Kentucky AG won't defend anti-gay marriage bill, but governor will

Kentucky’s attorney general said Tuesday he would not defend a Kentucky anti-gay marriage law struck down last month. But the governor said the state will hire outside attorneys to appeal. 

Timothy D. Easley/AP/File
Randy Johnson (r.) and Luke Barlowe, who were among the plaintiffs who sued Kentucky over an anti-gay marriage law, answer questions in Louisville, Ky., last month after the law was struck down.

Just moments after Kentucky’s attorney general said he would not appeal a federal judge's order that the state must recognize out-of-state same-sex marriages, the state’s governor announced plans to go forward with the appeal, regardless.

Kentucky Attorney General Jack Conway (D) said on Tuesday that Judge John Heyburn “got it right” last month in striking down states legislation that had barred state recognition of same-sex couples wed in states where gay marriage is legal. He said that he would no longer defend the state’s ban in any further legal action on the issue.

“The United States Constitution is designed to protect everyone's rights, both the majority and the minority groups," Mr. Conway told reporters, according to the Lexington Herald-Leader. “In the final analysis, I had to make a decision that I could be proud of – for me now, and my daughters' judgment in the future."

But, just minutes later, Gov. Steve Beshear (D) issued a written statement that he would pursue an appeal anyway, hiring outside attorneys to bring the case before the US Sixth Circuit Court of Appeals in Cincinnati.

The unfolding political scene in the bluegrass state – pitting governor against attorney general over gay marriage – has become a familiar one in recent months, as attorney generals begin to leverage their powers to fight back against their states’ anti-gay marriage legislation.

Last month, in an essentially unprecedented statement, US Attorney General Eric Holder Jr. announced that state attorneys general have no obligation to defend laws that they find discriminatory, including bans on gay marriage or the recognition of out-of-state same-sex couples.

Conway joins state attorneys generals in Pennsylvania, Virginia, Oregon, and Nevada who have said they will not defend anti-gay marriage legislation.

In some of those places, including in Virginia, Oregon, and Nevada, the governor has sided with the state’s attorney general. In Pennsylvania, Gov. Tom Corbett (R) in October likened gay marriage to “incest” in a succinct soundbite that summed-up his opinion on the matter.

Conway told reporters in a tearful, five-minute statement that to defend the state’s ban “would be defending discrimination,” the Associated Press reported.

“That I will not do,” he said.

Judge Heyburn, an appointee of President George H.W. Bush, included in his February order a 21-day stay that puts the ban’s end date at March 20. Governor Beshear said he plans to seek an extension on that stay until the case is resolved, citing possible “legal chaos” if the ban is lifted before then, according to the Courier-Journal.

Heyburn’s order did not address the broader issue of whether Kentucky’s ban on performing gay marriages in the state is constitutional.

In total, 17 states, plus the District of Columbia, permit gay marriage, and 33 states have bans on gay marriage either in their state laws or as constitutional amendments.

No federal judge has ruled in favor of any kind of gay marriage ban since the US Supreme Court tossed out a portion of the federal Defense of Marriage Act last year, according to the Los Angeles Times. The federal ruling on Kentucky’s anti-gay marriage legislation also comes amid similar rulings in other states that have been long-time stalwarts against same-sex marriage, including Utah, Texas, and Oklahoma.

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