WASHINGTON — The state of Kentucky, through the office of Democratic Gov. Steve Beshear, will appeal the recent federal court ruling ordering the state to recognize the marriages of same-sex couples performed outside Kentucky.
For a few moments, though, it looked like there would be no appeal. The state's chief lawyer, Attorney General Jack Conway — also a Democrat — announced that he had decided not to appeal the decision, citing in part the changing landscape for marriage equality.
Conway announced Tuesday that he would not be appealing a ruling against the state's ban, leaving many to think that the case would be over and that couples could have their marriages recognized, perhaps immediately.
"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 in a news conference.
Moments later, though, Beshear announced that his office will file its own appeal of the recent ruling to the 6th Circuit Court of Appeals.
"I understand and respect the deep and strong emotions and sincere beliefs of Kentuckians on both sides of this issue, but all Kentuckians deserve an orderly process that will bring certainty and finality to this important matter," the governor said.
Asked what involvement Conway would have with Beshear's hiring of counsel, Conway spokesman Daniel Kemp told BuzzFeed, "The Attorney General will not be involved. The Governor will hire his own counsel to represent the state in this case."
Read Attorney General Conway's statement:
As Attorney General, I have vowed to the people of Kentucky to uphold my duty under the law and to do what is right, even if some disagreed with me. In evaluating how best to proceed as the Commonwealth's chief lawyer in light of Judge Heyburn's recent ruling, I have kept those promises in mind.
When the Governor and I were first named as the technical defendants in this lawsuit, my duty as Attorney General was to provide the Commonwealth with a defense in the federal district court, and to frame the proper legal defenses. Those who passed the statutes and the voters who passed the constitutional amendment deserved that, and the Office of Attorney General performed its duty. However, it's my duty to defend both the Kentucky Constitution and the Constitution of the United States.
The temporary stay we sought and received on Friday allowed me time to confer with my client and to consult with state leaders about my impending decision and the ramifications for the state.
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.
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. We cannot waste the resources of the Office of the Attorney General pursuing a case we are unlikely to win.
There are those who believe it's my mandatory duty, regardless of my personal opinion, to continue to defend this case through the appellate process, and I have heard from many of them. However, I came to the inescapable conclusion that, if I did so, I would be defending discrimination.
That I will not do. As Attorney General of Kentucky, I must draw the line when it comes to discrimination.
The United States Constitution is designed to protect everyone's rights, both the majority and the minority groups. 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.
I am also mindful of those from the business community who have reached out to me in the last few days encouraging me not to appeal the decision. I agree with their assessment that discriminatory policies hamper a state's ability to attract business, create jobs and develop a modern workforce.
I prayed over this decision. I appreciate those who provided counsel, especially my remarkable wife, Elizabeth. In the end, this issue is really larger than any single person and it's about placing people above politics. For those who disagree, I can only say that I am doing what I think is right. 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.
May we all find ways to work together to build a more perfect union, and to build the future Commonwealth in which we want to live, work and raise all of our families.
Read Gov. Beshear's statement:
General Conway has advised me that he will no longer represent the Commonwealth in Bourke vs. Beshear. 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.
The question of whether state constitutional provisions prohibiting same sex marriage violate the U.S. Constitution is being litigated across the country. Here in Kentucky, Judge Heyburn has ruled that Kentucky's constitutional provision does so to the extent that same sex marriages legally performed elsewhere are not recognized in Kentucky. Judge Heyburn also currently has under consideration the broader question of whether Kentucky's provision prohibiting same sex marriage in Kentucky violates the U.S. Constitution, and I anticipate that decision in the near future.
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. The people of this country need to know what the rules will be going forward. Kentucky should be a part of this process.
In every other appeal currently in process, a stay has been entered maintaining the status quo until a final decision is reached on appeal. 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. There is already a lawsuit underway in Franklin Circuit Court, and other lawsuits in state and federal courts are possible. 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.
I understand and respect the deep and strong emotions and sincere beliefs of Kentuckians on both sides of this issue, but all Kentuckians deserve an orderly process that will bring certainty and finality to this important matter.
Chris Geidner is a Supreme Court correspondent for BuzzFeed News and is based in Washington, DC.
Contact Chris Geidner at email@example.com.
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