Kentucky will appeal a U.S. judge’s decision requiring recognition of out-of-state gay marriages even as the state’s attorney general said he’ll no longer defend the jurisdiction’s laws against same-sex unions.
Governor Steve Beshear, a Democrat, said he’ll bring in outside counsel to represent the state in a federal lawsuit pending in Louisville after Attorney General Jack Conway, also a Democrat, became the seventh top state legal officer to bow out of gay-marriage cases.
The issue should be decided by the U.S. Supreme Court “in order to bring finality and certainty to this matter,” Beshear said today in a statement announcing the appeal. “The people of this country need to know what the rules will be going forward. Kentucky should be part of this process.”
Gay marriage is now legal in 17 states plus the District of Columbia. Court decisions that invalidated bans in Oklahoma, Utah and Virginia are on hold while they’re being appealed.
In his Feb. 12 ruling, U.S. District Judge John G. Heyburn II said the state’s failure to recognize same-sex couples legally married elsewhere violated U.S. constitutional guarantees of equal protection. Heyburn said then he was not ruling on Kentucky’s in-state ban because that question wasn’t before the court.
Last week the judge said two same-sex couples who want to marry in the state could join the case before him. He denied their request for an immediate court order blocking enforcement of the state’s prohibition.
While the state asked Heyburn for a 90-day stay to decide whether to appeal or how to implement his ruling, the judge granted Kentucky just 20 days before his order took effect.
Heyburn was appointed to the federal bench by former President George H.W. Bush, a Republican.
“From a constitutional perspective, Judge Heyburn got it right,” Conway said in a separate statement today. Continuing the fight would mean defending discrimination, he said.
“In light of other recent federal decisions, these laws will not likely survive upon appeal,” Conway said. “We cannot waste the resources of the Office of the Attorney General pursuing a case we are unlikely to win.”
In declining to defend Kentucky’s ban, Conway follows six fellow Democratic attorneys general: California’s Kamala Harris, Illinois’s Lisa Madigan, Pennsylvania’s Kathleen Kane, Nevada’s Catherine Cortez Masto, Virginia’s Mark Herring and Oregon’s Ellen Rosenblum.
The case is Love v. Beshear, 13-cv-00750, U.S. District Court, Western District of Kentucky (Louisville).