Kentucky to Appeal Judge Heyburn’s Order to Recognize Legal Same-Sex Marriages

Breaking News, March 4, 2014, 11:30 a.m.

Governor Steven Beshear’s office announced this morning that Kentucky will appeal last week’s final Order by Federal Judge John G. Heyburn II that declared Kentucky’s law and constitution forbidding recognition of legal same-sex marriages performed in other states to be unconstitutional and therefore null and void. The Governor indicated that a request will be made to Judge Heyburn to further stay his Order pending that appeal. His principle justification is that the matter, currently under dispute in several states, will likely be settled by the US Supreme Court and that should the Order be overturned, confusion will occur and disadvantage accrue to those who relied on the order in the interval.

A most interesting wrinkle in the Governor’s announcement is that Attorney General Jack Conway advised the Governor that he will not represent the Commonwealth further in this matter, and that the appeal and additional request for further stay will be conducted by other council. I have not yet seen a statement from the Attorney General on this matter. One might speculate that Attorney General Conway felt that he found no longer morally defend an unconstitutional  law, but that the Governor felt compelled to do so.  Some skeptics will likely suggest that this path of action takes the Attorney General (who has state-wide political ambitions) off the hook from making the no-win political decision described by several political editorialists this past week. I would like to believe the former possibility is more accurate. [Addendum: In fact, Tom Loftus reports in the Courier Journal that  Attorney General Conway announced earlier this morning that “Judge Heyburn got it right” and that by appealing he would be defending discrimination, something “that I will not do.”  I applaud General Conway for his ethical position.]

Judge Heyburn speculated at last week’s hearing that such an appeal from the Commonwealth might happen. From his comments, and from the confidence I perceive in his belief in the justness of his Opinion, I predict that Judge Heyburn will not grant a further stay of enforcement.

More information is likely to become available, and I will comment further as indicated.

Below are the full statements of both the Attorney General and the Governor.

Peter Hasselbacher, MD
President, KHPI
March 4, 2014

Full Texts of Today’s Statements.

Attorney General Conway: Will not appeal Judge Heyburn’s ruling.

Good Morning. As Attorney General, I have vowed to the people of Kentucky to uphold my duty under the law, and to do what is right even if some disagree with me. In evaluating how best to proceed as the Commonwealth’s chief lawyer, in light of Judge Heyburns’s recent ruling, I’ve kept those promises in mind. When the governor and I were first named as the technical defendants in this lawsuit, my duty as Attorney General was to provide the commonwealth with a defense in the Federal District Court, and to frame the proper legal defenses. Those who passed the statutes and the voters who passed the constitutional amendment, deserved that, and the office of the Attorney General performed its duty.

However it is my duty to decent both the both the Constitution of Kentucky and the Constitution of the United States. The temporary stay we sought and received on Friday allowed me time to confer with my client and to consult with state leaders about my impending decisions and ramifications for the state. I have evaluated Judge Heyburn’s legal analysis, and today I am informing my client and the people of Kentucky that I am not appealing the decision and will not be seeking any further stays.

From a constitutional perspective, Judge Heyburn got it right. And in light of other recent federal decisions, these laws will not likely survive upon appeal. We cannot waste the resources of the Office of the Attorney General pursuing a case that we are unlikely to win.

There are those who believe that it is my mandatory duty, regardless of my personal opinion, to continue to defend this case through the appellate process and I have heard from many of them. However, I came to the inescapable conclusion, that if I did so, I would be defending discrimination. That I will not do. As Attorney General of Kentucky, I must draw the line when it comes to discrimination.

The United States Constitution is designed to protect everyone’s rights. Both the majority and the minority groups. Judge Heyburn’s decision does not tell a minister or a congregation what they must do. But in government, those majestic words that sit atop the United States Supreme Court– of equal justice under the law– is a different matter. I am also mindful of those in the business community who have reached out to me in the last few days encouraging me not to appeal the decision. I agree with their assessment that discriminatory policies hamper a state’ s ability to attract business, create jobs, and develop a modern workforce.

I prayed over this decision. I appreciate those who provided counsel, especially my remarkable wife Elizabeth. In the end, this issue is really larger than any single person. It’s about placing people over politics. For those who disagree, I can only say that I am doing what I think is right. In the final analysis I had to make a decision I could be proud of, for me now, and my daughter’s judgment in the future. May we all find ways to work together to build a more perfect union and build a future Commonwealth in which we want to live, work, and raise all of our families. Thank you.– Attorney General Jack Conway, March 4, 2014


Gov. Beshear: State to Pursue Appeal in Same Sex Marriage Case

FRANKFORT, Ky. (March 4, 2014) – “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.” – Governor Steve Beshear

One thought on “Kentucky to Appeal Judge Heyburn’s Order to Recognize Legal Same-Sex Marriages”

  1. Yesterday the Governor’s Office named his private outside council that will appeal Judge Heyburn’s Opinion. It appears the firm will also deal with the continuing Love vs. Beshear case dealing with the underlying issue of allowing gay marriage in Kentucky. I think the Governor is caught between a rock and a hard place.
    “FRANKFORT, Ky.  (March 13, 2014) – “After reviewing multiple responses to our search for private counsel in Bourke vs. Beshear, the state has chosen to execute a contract with VanAntwerp, Monge, Jones, Edwards & McCann, LLP of Ashland, Kentucky.
    This firm will be the state’s counsel of record for all aspects of this case going forward, including the issues still pending before Judge Heyburn.  The firm will also serve as state counsel for any separate cases involving these issues, including the pending action in Franklin Circuit Court.
    VanAntwerp, Monge, Jones, Edwards & McCann, LLP has considerable experience in arguing before federal courts, including the Sixth Circuit Court of Appeals, and we are confident they will represent the Commonwealth well.” – Governor Steve Beshear”

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