Kentucky Attorney General Jack Conway Explains Decision to Not Appeal Same-Sex Marriage Order

FRANKFORT — Last month, U.S. District Court Judge John Heyburn issued an opinion that Kentucky’s same-sex marriage ban violated the equal protection clause of the U.S. Constitution, effectively allowing out-of-state same-sex marriages to be recognized in the state.

In an emotional press conference Tuesday, Kentucky Attorney General Jack Conway announced that his office would not appeal Heyburn’s decision, saying that to do so would be to “defend discrimination.” But at the same time, Governor Steve Beshear is seeking outside counsel to lead an appeal effort.

Related: Kentucky Gov. Steve Beshear to Appeal Federal Judge’s Same-Sex Marriage Order

Related: Kentucky Democrats Differ on Jack Conway, Steve Beshear’s Dueling Appeal Decisions

“I could have tried to defend this law and made a statement that I don’t agree with it, but I’m gonna try to defend it. And it would’ve seemed wishy-washy …” said Attorney General Jack Conway, his eyes still watering from an emotional press conference just hours earlier when he decided not to appeal an historic federal ruling that overturned portions of the state’s ban on same-sex marriage.

“My wife pulled me aside late last week—and this is when I knew I’d made my decision—Elizabeth pulled me aside, and she said to me, she said ‘Jack, you really stink when you’re not authentic,” Conway said.

However, there are plenty of people in Frankfort who think Conway’s decision stinks.

“I think that the decision that the attorney general made today was about whether he should do his constitutional job,” said Martin Cothran of the conservative Family Foundation. ”And he basically said that he was not going to do that.”

Cothran’s group has been involved in the case at issue. Cothran said Gov. Steve Beshear’s intention to appeal Heyburn’s ruling via outside counsel makes Conway “look bad.”

“To have an executive branch which … seems to not be very enthusiastic about defending it, doing this, is really a second-best kind of thing,” Cothran said. “We would prefer the body that passed the law and is more answerable to the people have some standing in this case.”

Cothran supports a bill that would allow the House speaker, the Senate president or a third-party entity such as the Family Foundation to appeal in cases like this. State Sen. Dan Seum, a Louisville Republican, is considering filing a bill to allow third-party appeals.

Seum acknowledges the bill may not be needed in light of Gov. Beshear’s decision to appeal, he says the legislature may need that power to defend a more traditional view of marriage. Seum said marriage is historically a state’s rights issue.

“This is not an anti-gay issue necessarily, because the legislation that we passed going back, I think, in ’04, was basically one man-one woman,” Seum said. “So we also are saying that if, if a state out there wants to approve multiple marriages—it may come from the Mormon side of this thing—do we have a state right to reject that issue should we have multiple marriages?”

But Conway said Seum’s efforts would be in vain. He cites a U.S. Supreme Court ruling involving California’s same-sex-marriage ban, known as Prop 8, and the Defense of Marriage Act. The court dismissed the case, Conway says, because they ruled that the third parties litigating the case didn’t have standing for their claims.

“Sen. Seum might want to educate himself a little bit on the constitutional standing issue before we pass another piece of unconstitutional legislation,” Conway said.

Chris Hartman, director of Kentucky’s Fairness Campaign, agrees with Conway but is disappointed in Beshear’s intent to appeal.

This week marks the 50th anniversary of Martin Luther King Jr.’s march on Frankfort. Hartman says it dovetails perfectly with the issue, and—like in the Civil Rights era that preceded it—many people are realizing that they don’t want to oppose inevitable change.

“No one wants to be on the wrong side of that history, to tell their children that when the moment came to make the decision of whether or not to stand up for people in the Commonwealth of Kentucky, no one wants to say they took a seat,” Hartman said.

And neither did Conway, who in his press conference said he made his decision with his daughters’ judgment in mind.

Afterward, free from the gaze of microphones and news cameras and still-misty-eyed. Conway said  he called his wife Elizabeth to discuss what had happened.

“She said, ‘You know, you’ve … almost made me cry several times.’ And I said, ‘Well, honey, I did cry. I cried in front of the whole world. So how about that?’ And she laughed,” Conway said.

And as Beshear has already begun seeking an attorney for his appeal,  we’re bound to see more laughter and tears as the case builds.

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