Local News
10:41 am
Tue March 4, 2014

Kentucky Gov. Steve Beshear to Appeal Federal Judge's Same-Sex Marriage Order

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Update 5 p.m.: Request for Proposal Issued

The state has issued its request for proposal for an attorney to handle the appeal of a federal judge order that Kentucky must recognize out-of-state same-sex marriages.

Here's the document. 

The proposals are due by noon Friday.

It lists the rate as $125 per hour for a partner in a firm, $90 per hour for an associate and $40 per hour for a paralegal, plus some expenses. The fee guideline was set out by the Legislative Research Commission.

Also, WFPL's Phillip M. Bailey has been following the political ramifications of the governor's decision. Read his story here.

He and I chatted earlier Tuesday with WFPL's Jonathan Bastian about the developments. You can listen below:

Update 3:30 p.m.: Plaintiff Blasts Beshear

Greg Bourke said he was elated when Attorney General Jack Conway announced that he wouldn't file an appeal in the lawsuit he and Michael De Leon initiated over the summer.

"Little did I suspect just a few minutes later that that was all going to go crashing back down and we’d be thrown back into this area of uncertainty," Bourke said Tuesday.

Bourke said he feels "betrayed" by Gov. Steve Beshear's decision to pursue an appeal through counsel after Conway announced that he wouldn't appeal the case. At the same time, Bourke praised Conway for his decision and remarks Tuesday morning.

“I think he is remaining true to the principles of the Democratic Party, a party that’s based on inclusion and fighting against discrimination," Bourke said of Conway. "So I’m really very disappointed in Gov. Beshear, and I’m starting to wonder what kind of Democrat he really is, if he thinks he can pick up that discrimination banner and run with it and still call himself a Democrat.”

(Beshear's statement is below. His statement said he'd have no further comment on Tuesday.)

Bourke is also a candidate in the Democratic primary for Louisville Metro Council's Ninth District.

Bourke and Michael De Leon, who he married in Canada in 2004, were hoping to enter into a second-parent adoption for their children. Bourke said those plans are again on hold.

“I feel betrayed by him," Bourke said of Beshear.  "I’ve lost a lot of respect for him today. I don’t understand his motivation, nor has he provided much of an explanation for his appeal to this point.

"I think many of us, Democrats and other Kentuckians, are curious to know why he felt so strongly about this that he wanted act on it, when the attorney general and Judge Heyburn clearly were moving our commonwealth in a different direction.”

Update 1 p.m.: 'Political Stunt'

An attorney representing  Kentucky same-sex couples seeking to have their marriages recognized in the state says he's "extremely disappointed" in Gov. Steve Beshear's decision to pursue an appeal, and he's calling the series of events a "political stunt."

For a few moments, the plaintiffs' attorney heard what they hoped to hear.

And then they heard the opposite.

“As of the end of Jack Conway’s statement today, we were under the impression that as of March 20, same-sex couples would have their constitutional rights restored to them in Kentucky," Attorney Dan Canon said Tuesday afternoon. 

"As of right now, it does not appear that will be the case."

Attorney General Jack Conway announced that he wouldn't appeal a federal judge's order that Kentucky must recognize out-of-state same-sex marriages. Moments later, Gov. Steve Beshear issued a statement saying he'd hire counsel to pursue an appeal. Beshear said the U.S. Supreme Court will ultimately decide same-sex marriage question, and "Kentucky should be part of this process."

“This is a political stunt, and people whose lives are genuinely affected by Judge Heyburn’s ruling and by the discriminatory laws that Kentucky’s had on the books for years now, those people are having their civil liberties used as chess pieces," Attorney Dan Canon said.

Canon and his colleague Joe Dunman are questioning the cost of pursuing an appeal through counsel, which they said has cost millions in other states. (A spokeswoman for the governor's office has not responded to questions about the plans for paying for the appeal, or the estimated cost.)

Heyburn has stayed his order to March 20. Beshear said he'll ask for a stay pending appeal.

The stakes are that married same-sex couples in Kentucky could have had their marriages recognized at least until a stay were implemented by a higher court, as happened in Utah when the U.S. Supreme Court issued a stay after appeals courts declined.

The plaintiffs attorneys said Beshear was not required to pursue an appeal.

“We are extremely disappointed," Canon said. "This is essentially a decision by the Beshear administration to waste a great deal of taxpayer money defending laws that are not only morally indefensible but also patently unconstitutional.”

Beshear's full statement is below. We're still gathering reaction. Stick around for more.

Update 12 p.m.: Beshear's Full Statement

Here is Gov. Steve Beshear's full statement on his decision to pursue an appeal of a federal judge's order that Kentucky must recognize out-of-state same-sex marriage:

“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.”  

I've spoken with plaintiff's attorneys. We'll have their reaction coming up very shortly.

Update 11 a.m.: But The Governor

Kentucky Public Radio's Jonathan Meador reports that Gov. Steve Beshear plans to hire counsel to appeal the federal judge's order that the state must recognize out-of-state same-sex marriage.

Beshear is a defendant in the lawsuit that led to the order, initially called Bourke v. Beshear and now called Love v. Beshear. Conway, another defendant, announced Tuesday morning that he will not file an appeal or pursue another stay.

In his announcement, Conway said he didn't believe an appeal was likely to be successful. He also said he believed further appeal amounted to defending discrimination.

More updates coming.

Jack Conway
Credit Kentucky Attorney General's Office

Earlier: Kentucky Attorney General Jack Conway will not appeal a federal judge's order that the state must recognize out-of-state same-sex marriages.

"From a constitutional perspective, Judge Heyburn got it right," Conway said in announcing his decision on Tuesday.

In February, U.S. District Judge John Heyburn wrote that Kentucky's 2004 same-sex marriage ban violated the equal protection clause in the Fourteenth Amendment of the U.S. Constitution. The order stemmed from a lawsuit initiated by Louisville residents Greg Bourke and Michael De Leon, who were married in Canada in 2004 and sought recognition for their marriage in Kentucky. 

Heyburn finalized his order on Thursday, effectively granting recognition of out-of-state same-sex marriages in Kentucky. But Conway's office asked for a 90-day stay on the order, arguing in part that the state needed time to figure out how it would implement recognizing out-of-state same-sex marriages. Heyburn granted a stay until March 20.

Conway said Tuesday that he will not seek another stay.

In announcing his decision, Conway said he doesn't believe the state can successfully pursue an appeal and considered continuing a waste of resources. He also said he believed a further appeal would amount to defending discrimination.

Heyburn allowed four same-sex couples seeking to get married in Kentucky to join the lawsuit last month, but no decision has been made on that aspect of the issue. The lawsuit is now called Love v. Beshear.

We'll have more coverage, including reaction from the plaintiffs' attorneys, coming up. Stay tuned.