Last month, U.S. District Judge John G. Heyburn II ruled that the Supreme Court of the United State’s decision to strike down the federal Defense of Marriage Act’s Section 3 (Windsor v United States), as well as a string of other rulings issued by the court, serve to make Kentucky’s ban on recognizing same-sex marriages from out-of-state unconstitutional.
While Judge Heyburn was not faced with the question of whether Kentucky should itself issue same-sex marriage licenses, he will rule on that question later in the year. As such, he pointedly stayed away from that issue during this ruling but did add the following: “There is no doubt that Windsor and this court’s analysis suggest a possible result to that question.” In effect, it appears the Kentucky gay marriage ban’s days are numbered.
The case was brought by a number of same-sex couples, all married in either the United States or Canada, who argued that Kentucky’s denial of their rights violated the United States Constitution’s guarantee of equal protection. Initially, Kentucky Attorney General Jack Conway, who is hotly tipped to run for governor in 2015, offered a defense of the law though it was largely procedural — that the state’s population had enacted the ban by a popular vote and therefore, despite his personal feelings, he was duty bound to defend the law.
However, this week Conway made an emotional statement to the press in which he said that he could not in good conscience continue to defend the law after a federal judge had found it lacking:
“I know where history is going on this. I know what was in my heart. From a legal standpoint I draw the line at discrimination. If you think about it, in the long arc of history of this country, at one time we discriminated against women, at one time we discriminated against African Americans and people of color, we discriminated against those with disabilities. Where we are as a country now, this really seems to be the only minority group that a significant portion of our society thinks it’s still O.K. to discriminate against. … Once I reached the conclusion that the law was discriminatory, I could no longer defend it. At that point, being true to myself became more important than the political considerations.”
AG Conway was visibly close to tears during the speech, perhaps signalling the seriousness with which he approached this issue. You can watch a video of his speech below:
In an interesting twist, the state’s Democratic Governor Steve Beshear, who is in his second and final term, has said he will now seek outside counsel in order to keep defending the state’s gay marriage ban and bring about as quick a resolution as possible. Beshear is particularly concerned about the “chaos” he says might come from the uncertainty around the ruling which could, he argues, be overturned by a higher court.
The definition of marriage “will be and should be ultimately decided by the U.S. Supreme Court in order to bring finality and certainty to this matter,” Beshear is quoted as saying. “The people of this country need to know what the rules will be going forward. Kentucky should be a part of this process. …. Employers, health care providers, governmental agencies and others faced with changing rules need a clear and certain roadmap,” Beshear added.
Beshear has been heavily criticized for continuing to defend the ban when his own attorney general has told him that the ban is unconstitutional.
AG Conway isn’t alone in that determination, though. He is now the seventh state attorney general to refuse to defend bans on same-sex marriage. While Republicans have attacked Democrats for, they say, shirking their duty to defend state laws, United States Attorney General Eric Holder last week released a statement saying that in “extraordinary circumstances” like these, dealing with issues of discrimination, state attorney generals are within their power to choose not to defend same-sex marriage bans if after careful consideration they know the laws to be unconstitutional — not that this will stop religious conservative groups complaining, of course.
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