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Ky. to Use Outside Counsel in Gay Marriage Case

by Brett Barrouquere
Tuesday Mar 4, 2014
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Kentucky Gov. Steve Beshear
Kentucky Gov. Steve Beshear  (Source:AP Photo/Ed Reinke)

Kentucky Gov. Steve Beshear said Tuesday that the state will hire outside attorneys to appeal a decision granting legal recognition to same-sex couples married in other states and countries after the attorney general announced that he would not pursue the case further.

The split legal decisions from two Democrats come four days after a federal judge in Louisville gave the state 21 days to implement a ruling overturning a voter-imposed ban on recognizing same-sex unions.

Conway said at a news conference that he decided he would not appeal the case because "I would be defending discrimination. That I will not do."

Minutes later, Beshear said in a written statement that the potential for "legal chaos is real" if a delay is not issued in the case while it is appealed. He noted litigation over gay marriage in other states and said the issue should be ultimately decided by the U.S. Supreme Court

"Other Kentucky courts may reach different and conflicting decisions," Beshear said. "Employers, health care providers, governmental agencies and others faced with changing rules need a clear and certain roadmap. Also, people may take action based on this decision only to be placed at a disadvantage should a higher court reverse the decision." The statement said Beshear would not comment further Tuesday.

U.S. District Judge John G. Heyburn issued a Feb. 12 opinion that Kentucky’s ban on recognizing same-sex marriages violated the Constitution’s equal-protection clause in the 14th Amendment because it treated "gay and lesbian persons differently in a way that demeans them."

The decision arose from a lawsuit filed by two couples who were married in other states or countries over the past 10 years. The couples sought to force the state to recognize their unions as legal. Heyburn’s ruling does not require the state to issue marriage licenses to same-sex couples; that is the subject of a separate, but related lawsuit. Heyburn expects to rule on that issue by summer.


Kentucky Gov. Steve Beshear  (Source:AP Photo/Timothy D. Easley)

Unless a higher court steps in and stops enforcement of the ruling, the state will have to allow same-sex couples married outside the state to change their names on official identifications and documents and obtain any other benefits of a married couple in Kentucky.

Laura Landenwich, who represents several of the plaintiffs, called Beshear’s move "a political stunt designed to cull favor" for any future run for office.

"A true failure in leadership, and a waste of taxpayer dollars for the exclusive benefit of these politicians," Landenwich said.

Dawn Elliott, another attorney representing the plaintiffs, said any appeal is unlikely to be successful, no matter who argues the case for the state. "The legal analysis is the same," Elliott said.

Martin Cothran, a spokesman for The Family Foundation of Kentucky, which opposes same-sex marriage, charged Conway with "spiking the case" by not offering up a stronger defense.

Conway, who said he consulted with Beshear and state lawmakers, said he prayed over the decision.

"In the end, this issue is really larger than any single person and it’s about placing people above politics," Conway said. "For those who disagree, I can only say that I am doing what I think is right."

The decision in the socially conservative state comes against the backdrop of similar rulings or actions in other states where same-sex couples have long fought for the right to marry. Kentucky’s constitutional ban was approved by voters in 2004 and included the out-of-state clause.

The U.S. Supreme Court ruled in June that same-sex couples were entitled to federal benefits. Since then, a federal judge in Texas last week struck down that state’s gay marriage ban but immediately delayed the implementation of his ruling pending appeals by the state. In January, the U.S. Supreme Court put a hold on a decision in Utah recognizing same-sex marriages.

Attorneys general have increasingly taken supportive roles in the movement to legalize gay marriage, despite their duty to defend state law. In Virginia, Attorney General Mark Herring announced in January that he would not defend a voter-approved ban on same-sex marriage. Fellow Democrat Gov. Terry McAuliffe rebuffed calls to appoint outside council. In that case, defense of the ban fell to the legal team of the Circuit Court in Norfolk, where a suit challenging the law had been filed. A judge declared the ban unconstitutional. The decision was stayed while it undergoes the appeals process.


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