Two of Kentucky’s top Democrats split sharply Tuesday over same-sex marriage, with Gov. Steve Beshear saying outside lawyers will be hired to appeal a decision granting recognition to gay couples married in other states after the attorney general announced he would not pursue the case.
The high-level intraparty divide — illustrating the rapid spread of the gay-marriage debate into America’s conservative heartland — came four days after a federal judge in Louisville gave Kentucky 21 days to implement a ruling that overturned a ban on recognizing same-sex unions. Voters overwhelmingly approved the ban in 2004.
Attorney General Jack Conway choked up with emotion at a news conference announcing he would not appeal the ruling.
“I would be defending discrimination,” Conway said. “That I will not do.”
Minutes later, Beshear said in a written statement that the potential for “legal chaos is real” if a delay is not granted while the case is appealed. He noted that litigation over gay marriage is pending in many other states and said the issue ultimately should be decided by the U.S. Supreme Court.
Unless the judge’s order is stayed by a higher court, Kentucky will have to allow same-sex couples married outside the state to change their names on official identifications and documents and obtain any other benefits of a married couple in Kentucky.
“Employers, health care providers, governmental agencies and others faced with changing rules need a clear and certain roadmap,” Beshear said. “Also, people may take action based on this decision only to be placed at a disadvantage should a higher court reverse the decision.”
The statement said Beshear would not comment further Tuesday.
U. S. District Judge John G. Heyburn said in an opinion issued Feb. 12 that Kentucky’s ban on recognizing same-sex marriages violated the Constitution’s equalprotection clause in the 14th Amendment because it treated “gay and lesbian persons differently in a way that demeans them.”
The decision arose from a lawsuit filed by two couples who were married in other states or countries over the past 10 years and sought to force Kentucky to recognize their unions. Heyburn’s ruling does not require the state to issue marriage licenses to samesex couples; that is the subject of a separate lawsuit in which Heyburn expects to rule by this summer.
Heyburn is among several federal judges who have issued rulings in support of same-sex marriage since the Supreme Court’s decision in Windsor v. U.S. in June that struck down part of the federal anti-gay-marriage law. The latest state ruling came last week in Texas.
Two of the rulings — striking down same-sex marriage bans in Utah and Oklahoma — are being appealed to a federal appeals court in Denver.
On Tuesday, a group of Republicans came out in support of legalizing gay marriage in those states, arguing that allowing samesex unions is consistent with the Western conservative values of freedom and liberty once championed by Ronald Reagan and Barry Goldwater. The group, which filed a brief with the Denver appeals court, includes former Sen. Alan Simpson of Wyoming and former Sen. Nancy Kassebaum of Kansas.
Seventeen states and Washington, D. C., allow same-sex marriage. Democratic attorneys general in at least seven states — Virginia, Pennsylvania, California, Illinois, Oregon, Nevada and now Kentucky — have declined to defend same-sex-marriage bans that have been challenged in court by gay couples.
U. S. Attorney General Eric Holder said last week that his state counterparts are not obligated to defend state laws banning samesex marriage if they believe the laws violate the U.S. Constitution.
Conway, who said he consulted with Beshear and state lawmakers, said he prayed over his decision.
“In the end, this issue is really larger than any single person and it’s about placing people above politics,” Conway said. “For those who disagree, I can only say that I am doing what I think is right.”
Tony Perkins, president of the conservative Family Research Council, assailed the attorney general.
“Jack Conway took an oath to uphold the constitution and the laws of Kentucky, not undermine them through indifference driven by his personal ideology,” Perkins said. “Does Mr. Conway possess some mysterious knowledge and understanding that 75 percent of Kentucky voters who approved the marriage amendment don’t have?”
Laura Landenwich, who represents several of the plaintiffs in the case, called Beshear’s move “a political stunt designed to cull favor” for any future run for office. He is not eligible to run for governor in 2015 because of term limits.
“A true failure in leadership, and a waste of taxpayer dollars for the exclusive benefit of these politicians,” Landenwich said.
Dawn Elliott, another attorney representing the plaintiffs, said any appeal is unlikely to be successful, no matter who argues the case for the state. “The legal analysis is the same,” Elliott said.
During the 2011 gubernatorial race, Beshear didn’t make any overt play for gay voters, but plaintiff Gregory Bourke — who married his partner in Canada — said the governor garnered strong support from that constituency.
“He’s been sort of a friend of gay people over the years,” Bourke told The Associated Press.