Jack Conway's biggest test yet and the nuances of the same-sex marriage ruling

03/01/2014 02:09 PM

To appeal or not to appeal. That might be the question facing Attorney General Jack Conway but what will go into his decision is more nuanced than that.

And the reasons he cites for his decision might be even more telling than what he ultimately chooses.

U.S. District Court Judge John G. Heyburn’s ruling that Kentucky must recognize same-sex marriages from other states has presented Conway with his toughest political quandary after six years in office.

Social conservatives and Republican lawmakers are urging Conway to appeal Heyburn’s decision. Gay rights groups and many Democrats want Conway to let the ruling stand.

Conway’s gubernatorial ambitions are at play. The potential effect on the 2014 elections is being weighed. And Gov. Steve Beshear — the other defendant in this case — might not have to worry about the political effect a decision would have on him but has a vested interest in not doing anything to make life more difficult for the next attorney general in case his son Andy Beshear wins that race in 2015.

The governor issued a statement Friday saying he and Conway would “be discussing what our next steps will be.

“We will make a decision promptly,” the statement said.

Conway and Beshear were named as joint defendants in the suit brought by a gay couple challenging Kentucky’s 2004 constitutional amendment that banned same-sex marriage, saying it violated the equal protection clause in the U.S. Constitution. In addition to being co-defendants, Conway also serves as Beshear’s lawyer because the attorney general represents the governor and other state leaders in their official capacity.

The clinical legal path

Former Attorney General Greg Stumbo, who is now the state House Speaker, offered Conway a path for choosing not to appeal. On Friday, Stumbo said he agreed with Heyburn’s interpretation of the law and said if he were in Conway’s position, he would not recommend to his client — Beshear — that the decision be appealed. Watch how he puts it:

The split decision path

State Sen. Morgan McGarvey, D-Louisville, is among the Democrats who hope Conway and Beshear opt not to appeal. McGarvey, who used to work in Conway’s office, said because Conway and Beshear are named as joint defendants, it’s a bit complicated, but the two could choose to go down different paths.

McGarvey raised the issue of making sure Kentucky’s regulations are up to date with the effect of Heyburn’s ruling.

Heyburn on Friday granted a 21-day pause before the ruling takes effect to give state officials that time. For instance, do state officials need to rework regulations or rules to allow the same-sex spouse of a state employee to be covered by state benefits? Or are there any rules that need to be changed regarding child custody issues for same-sex couples? (The Herald-Leader’s Beth Musgrave reported that Fayette Family Court Judge Kathy Stein — the former state senator — ruled Friday that a Lexington woman could legally adopt her wife’s son in light of Heyburn’s ruling).

The fiscal responsibility path

Another prospective Democratic candidate for governor, state Auditor Adam Edelen, said he hopes Conway doesn’t appeal, using a fiscal argument as the underpinnings of his position.

Kentucky is in the same boat as other states like Utah, Texas and Oklahoma who have seen federal judges toss out same-sex marriage bans. So Edelen said let those other states take the issue up the appeals ladder and save Kentucky the expense. Here’s how he framed it:

The Trojan Horse path

Conway could try to appeal without angering part of his Democratic base if he sells the move as an attempt to settle the question before the U.S. Supreme Court once and for all.

That comes with the most political risk for Conway. He could anger socially progressive Democrats who would be skeptical of his motives — or who might not get the message of what he’s trying to do. And it could enrage conservatives who think Conway would tank his defense on purpose in order to lose so that the higher courts confirm Heyburn’s ruling.

Regardless of what Conway and Beshear choose, Stumbo said he’s not concerned that Democratic House candidates will end up taking ownership of the issue in the fall election.

House Democrats took one of their biggest collective drubbings in 2004 when the constitutional amendment to ban same-sex marriage was on the ballot, losing seven seats including five incumbents.

But Stumbo said Democrats need to stick to the message that they are the party that sticks up for minorities to make sure everyone is treated equally. And not adhere to that for other political reasons is a “violation of our oath of office.”

But someone is already interested in the political fallout of this. As the Louisville Eccentric Observer’s Joe Sonka reported Thursday night after Heyburn’s ruling came out that Democrats were getting polled about the 2015 governor’s race and the effect of Heyburn’s decision, including whether appealing the ruling would help or hurt Conway.

Conway’s spokeswoman, Allison Martin, said neither Conway nor his political action committee Jack PAC were responsible for the survey.


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