Kentucky attorney general likely to face criticism regardless of his decision on gay marriage

syoungman@herald-leader.comMarch 1, 2014 

Kentucky Attorney General Jack Conway's pending decision whether to appeal a federal court ruling on gay marriage has the likely gubernatorial candidate facing political danger from all sides.

If Conway appeals the ruling that requires Kentucky to recognize same-sex marriages performed outside the state, he will probably enrage the Democratic base, especially in his home of Jefferson County. That could be a mortal wound to Conway's hopes of winning the governor's mansion before he even announces a run.

But if Conway joins several other Democratic attorneys general from across the nation in declining to defend laws voted on by the state, he could find himself at odds with the majority of Kentuckians who oppose gay marriage.

"If he decides to challenge the ruling, he runs the risk of alienating, irritating the activist wing of the Democratic Party who I would say is 100 percent behind Judge Heyburn's ruling," longtime Democratic consultant Danny Briscoe said.

Friday afternoon, U.S. District Judge John G. Heyburn II in Louisville agreed to delay until March 20 his order requiring Kentucky to recognize same-sex marriages from outside the state.

Conway had asked for a 90-day delay, but Allison Martin, a spokeswoman for Conway, said Conway and Gov. Steve Beshear will decide whether to appeal Heyburn's ruling in "a matter of days and not a matter of weeks."

Heyburn's final order, issued Thursday, struck down parts of a 1998 state law and a 2004 state constitutional amendment defining marriage as between one man and one woman.

Although he ruled that Kentucky must recognize marriages performed legally outside the state, he did not rule that Kentucky must allow same-sex marriages to take place here.

While the nation has shifted dramatically away from anti-gay marriage attitudes, the most recent Bluegrass Poll found that 55 percent of Kentuckians oppose gay marriage.

U.S. Attorney General Eric Holder waded into the issue earlier last week, giving cover to states' attorneys general who choose not to defend similar gay marriage laws.

Citing the 1954 Brown v. Board of Education case, Holder said in a New York Times interview that if he "were attorney general in Kansas in 1953, I would not have defended a Kansas statute that put in place separate-but-equal facilities."

State Auditor Adam Edelen, one of Conway's likely challengers for the Democratic nomination, told the Lexington Herald-Leader Friday that it was a waste of taxpayer money to defend a law that has little chance of being upheld.

"This isn't just about marriage equality," Edelen, who has come out in favor of gay marriage, said. "Now it's about whether the state's going to allocate scarce resources to fight this without, I think, probably a high degree of success."

Conway and Beshear have 30 days to decide whether to appeal the ruling, as Democrat Roy Cooper, North Carolina's attorney general, did in a similar situation. Or they could follow the examples of attorneys general in California, Illinois, Nevada, Pennsylvania and Virginia and decline to defend the state laws.

"I'm not the attorney general, but I am the taxpayer watchdog, and I really don't like the idea of spending money on lawyers when we're laying off school teachers," Edelen said.

Former state auditor and potential Democratic gubernatorial candidate Crit Luallen said that Heyburn made a "compelling argument and one I agree with — that every individual's rights are protected in the Constitution."

But Luallen said it would be inappropriate for her to weigh in on Conway's decision, saying in an email that it's "his decision based on his legal analysis and his duties as attorney general."

Former Louisville Metro Councilman Hal Heiner, a potential Republican candidate for governor, declined to respond to messages or weigh in on the issue.

An aide to Agriculture Commissioner James Comer, another likely Republican gubernatorial candidate, noted that, as a state representative, Comer voted in favor of the amendment banning gay marriage in Kentucky.

Conway declined an interview to discuss his thinking, citing the ongoing legal process.

Martin, his spokeswoman, said he does not think it is appropriate to discuss his personal feelings on the issue because he "took an oath to carry out his obligation as attorney general."

Beshear is also a defendant in the case and could choose to file his own appeal if Conway won't. While the governor is term-limited, his son, Andy, is running to fill Conway's seat as attorney general, leaving Andy Beshear in a similar spot as Conway if only by association.

Charly Norton, spokeswoman for likely Democratic Senate nominee Alison Lundergan Grimes, referred to Norton's previous statement about Grimes' position on gay marriage.

"Alison has been married for seven years and has stated publicly that she wouldn't want to deny other couples the opportunity to make that same commitment. She's also made clear that while the Supreme Court has ruled that state sovereignty applies, churches should not be forced to recognize anything inconsistent with their teachings."

Senate Minority Leader Mitch McConnell took heat from Republican primary challenger Matt Bevin immediately after Heyburn's preliminary order as Bevin and his allies pointed out that McConnell had recommended Heyburn's judicial appointment to President George H.W. Bush.

Bevin found himself in a pot of his own hot water, however, when he said in an interview that people want to marry because of economic benefits and allowing gay marriage could mean "a person may want to define themselves as being married to one of their children so that they can then in fact pass on certain things to that child financially and otherwise."

"Where do you draw the line?" Bevin said on The Janet Mefferd Show, a national Christian radio program.

Sam Youngman: (502) 875-3793. Twitter: @samyoungman. Blog:

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