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Kentucky’s Attorney General Explains Why He Won’t Defend Gay Marriage Ban

7 minute read

Calling laws against same-sex marriage the last vestige of widespread discrimination in America, Kentucky Attorney General Jack Conway told TIME Tuesday he refused to continue defending his state’s ban on gay marriage because he feared he’d regret it for the rest of his life. “I know where history is going on this,” he said. “I know what was in my heart.”

“From a legal standpoint I draw the line at discrimination,” Conway said in an extensive interview shortly after he announced that he would not appeal a judge’s order that Kentucky recognize same-sex marriages. “If you think about it, in the long arc of history of this country, at one time we discriminated against women, at one time we discriminated against African-Americans and people of color, we discriminated against those with disabilities.

“Where we are as a country now, this really seems to be the only minority group that a significant portion of our society thinks it’s still okay to discriminate against.”

Conway said he grappled for weeks with how to respond to U.S. District Judge John G. Heyburn’s Feb. 12 ruling, which was the first in the South to strike down a state law banning gay marriage. Kentucky’s ban was passed by voters in 2004 and remains popular in the state.

“I came to the conclusion late last month I couldn’t choose a mixed path. There were plenty of people who advised me this is a very risky for me politically. But I talked it over with my wife, and she said, ‘You know what Jack, you really stink when you are insincere.'”

A Catholic and a Democrat considering running for governor in 2015, Conway said he knew the decision could put him at odds with voters and with church leaders in his hometown. His thinking was shaped partly by statements from Pope Francis that encouraged openness toward gays. “Our new pope recently said on an airplane ‘Who am I to judge.’ The new pope has said a lot of things that Catholics like me really like. I have, as someone who grew up as a Catholic listened to some of the words of the new pope and found them inspirational.”

After reading Heyburn’s opinion several times, Conway came to the conclusion the judge was right. “Once I reached the conclusion that the law was discriminatory, I could no longer defend it,” he said. “At that point, being true to myself became more important than the political considerations.”

In taking his stand, Conway joined a small but growing group of elected state officials who have refused to defend gay marriage bans put in place by voters over the past decade. In 2009 Jerry Brown, California’s attorney general at the time, refused to defend the state’s ban on gay marriage, and more recently officials in Nevada, Pennsylvania, Virginia and elsewhere have followed suit.

Bans on same-sex marriage have been struck down in whole or in part by federal judges in seven states since last summer, when the U.S. Supreme Court ruled that Congress’s 1996 Defense of Marriage Act had been mostly motivated by illegal animus toward homosexuals. Shortly after the Kentucky ruling, federal courts in Virginia and Texas also ruled against bans in those states. Texas Attorney General Greg Abbott, a Republican candidate for governor, immediately said he would appeal, while Virginia Attorney General Mark Herring said his office would not defend the law.

The impact of Conway’s decision on gay couples in Kentucky isn’t immediately clear. Gov. Steve Beshear, a Democrat in his second and final term, announced his intention to hire outside counsel to defend the state’s ban after Conway refused to do so. The question of gay marriage, Beshear said in a statement, “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 rules will be going forward. Kentucky should be a part of this process.”

Heyburn has signaled he wants Kentucky to recognize gay marriages performed out of state right away, though Beshear said Tuesday he will ask the judge to stay his decision pending an appeal. If Heyburn complies, gay couples could be waiting until 2015 or beyond before they know if their marriages are valid in Kentucky.

Conway said he had concluded that pursuing an appeal would be a waste of public funds, in part because he believes Heyburn’s decision will be upheld. “I knew what I was being asked to do,” he says. “I am sworn to uphold the Kentucky Constitution and I am sworn to uphold the U.S. Constitution.”

This wasn’t the first time, Conway said, that he was asked to defend a policy that he personally opposed. But he said being asked to use his office to deny Kentucky’s gay citizens equal protection under the law was something he simply couldn’t do.

“I just got to the point where — listen, this office requires you to sometimes hold your nose as you do various things,” Conway said. “But this is discrimination. Here we had an opinion in which the judge had clearly said it was discrimination. … For me, equal justice under the law is different. I wrote most of that statement myself over the weekend and gave it to my staff and told them this is how I feel personally.”

U.S. Attorney General Eric Holder said last week that state attorneys general should not feel obligated to defend gay marriage bans if they consider them to be discriminatory. Conservative legal scholars criticized Holder’s statements, arguing that an attorney general’s obligation to defend a state’s laws is no different than a lawyer’s ethical obligation to defend a client regardless of personal views.

Conway said he weighed those concerns heavily before making a decision. “But there is also a separate ethical canon for prosecutors and elected officers,” he said. “Yes, you must provide zealous representation for your client. But you have a higher duty to see that justice is done. Seeing that justice is done is important to me.”

The decision could have political implications in Kentucky. Conway seeks to succeed Beshear in 2015, and the governor’s son, Andy Beshear, has said he will run for attorney general next year.

Conway said he discussed the potential political fallout with the governor. “I would be disingenuous with you if I didn’t say that I at least was thinking about it,” he said of the decision’s possible impact on his ambitions to be governor. “So I considered it, but it wasn’t the overriding consideration.”

In the end, Conway said, his decision came down to his own changing views. “I’ve matured as a public servant, as a father, and as husband,” he said. “As you grow up you learn more and more about people. I do know people in the gay community and when you talk about domestic partnerships and civil unions, you hear that that isn’t enough.”

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