Why Kentucky’s Attorney General Refuses to Defend His State’s Anti-Gay Law
A brief history of how we got here:
In 2004, Kentucky voters overwhelmingly approved a state constitutional amendment that made it unconstitutional for the state to recognize or perform same-sex marriages or civil unions. The referendum was approved by 75% of the voters.
The text of the amendment states:
Only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized
In September of 2013, the Kentucky Equality Federation filed a lawsuit seeking to overturn the state’s 2004 constitutional amendment prohibiting same-sex marriage.
The lawsuit, filed in Franklin Circuit Court, named Gov. Steve Beshear, Attorney General Jack Conway and the Fayette County clerk’s office as defendants.
The group said in a news release that its lawsuit is “the latest attempt to achieve equal rights and protections for families across the commonwealth whose very existence has been banned by the forces of religious zealotry and hatred.”
The lawsuit claims that the 2004 amendment violates multiple sections of the Kentucky Constitution that guarantee citizens equal protection under the law.
“In 2004, social conservatives, who normally try to hide behind the Constitution, decided that it wasn’t good enough for them anymore,” Kentucky Equality Federation president Jordan Palmer said. “They decided to rewrite a document which guarantees freedom and to pervert it to fit their own jaded hatred of gay and lesbian couples. This was done despite the fact that it negated part of the Bill of Rights.”
On February 12, 2014, a federal judge ruled that Kentucky must recognize same-sex marriages from other states, opening the door for gay and lesbian couples to gain full legal protection as families.
Ruling in favor of four Kentucky same-sex couples who sued the state last year, U.S. District Judge John G. Heyburn II in Louisville struck down portions of a 1998 state law and a 2004 state constitutional amendment, both of which limited marriage in Kentucky to “one man and one woman.”
The Fourteenth Amendment to the U.S. Constitution guarantees equal protection of the law from state to state, so Kentucky cannot deny people their fundamental rights, such as the right to marriage, Heyburn wrote.
“No one has offered any evidence that recognizing same-sex marriages will harm opposite-sex marriages, individually or collectively. One’s belief to the contrary, however sincerely held, cannot alone justify denying a selected group their constitutional rights,” Heyburn wrote.
Although Kentuckians are entitled to enact laws based on their “moral judgments … those laws are subject to the guarantees of individual liberties contained within the United States Constitution,” he wrote.
Tuesday, March 4, Kentucky’s Attorney General Jack Conway broke with Governor Breshear and announced he would not pursue an appeal of Heyburn’s final ruling.
Today, Conway explained how and why he came to that decision.
Conway, who opposed same-sex marriage during his failed run for the U.S. Senate in 2010, wouldn’t pinpoint when he changed his mind to support full marriage equality. He said he came around “over the last few years” after conversations with friends in the gay community, and after thinking about how his two daughters would come to view his decision.
“I thought long and hard. I thought about the arc of history,” he said. “I thought about the fact that at one time in this country we discriminated against women. At one time we discriminated against African-Americans and people of color. At one time we discriminated against those with disabilities. This is the last minority group in this country that a significant portion of our population thinks it’s OK to still discriminate against in any way. And I didn’t think that was right.”
His conversion coincides with that of millions of Americans, who in recent years have shifted rapidly toward support for gay marriage. Marriage equality polls at over 50 percent nationally, but notably, not in the Bluegrass State: 55 percent of Kentucky voters oppose gay marriage, while 35 percent support it, according to a poll last month. The Supreme Court struck down that prohibits federal recognition of gay marriage, and a flood of lower court decisions suggests the court may soon end up deciding whether gay marriage is a constitutional right.
“To discriminate and not allow two people to marry does not have a rational basis under the law, and therefore it cannot withstand scrutiny under the equal protection [clause of the 14th Amendment],” Conway said, arguing that laws against gay marriage are unconstitutional.
Conway plans to run for Governor in 2015 when Gov. Beshear maxes out his two terms. This move by Conway will give him an uphill battle with many Kentucky voters, but my belief is that Conway is on the right side of history and he has made the right decision no matter his own personal political future.
UPDATE: TIME also has a piece today.
A Catholic and a Democrat considering running for governor in 2015, Conway said he knew the decision could put him at odds with voters and with church leaders in his hometown. His thinking was shaped partly by statements from Pope Francis that encouraged openness toward gays. “Our new Pope recently said on an airplane, ‘Who am I to judge?’ The new Pope has said a lot of things that Catholics like me really like. I have, as someone who grew up as a Catholic, listened to some of the words of the new Pope and found them inspirational.”
After reading Heyburn’s opinion several times, Conway came to the conclusion the judge was right. “Once I reached the conclusion that the law was discriminatory, I could no longer defend it,” he said. “At that point, being true to myself became more important than the political considerations.”
In taking his stand, Conway joined a small but growing group of elected state officials who have refused to defend gay-marriage bans put in place by voters over the past decade. In 2009, Jerry Brown, California’s attorney general at the time, refused to defend the state’s ban on gay marriage, and more recently officials in Nevada, Pennsylvania, Virginia and elsewhere have followed suit.