Kentucky’s AG Refuses to Defend Marriage. Governor Forced to Hire Private Law Firm.

Kentucky’s AG Refuses to Defend Marriage. Governor Forced to Hire Private Law Firm. March 18, 2014

This story is a couple of weeks old, but I’ve been too busy to take it on until now.

A few weeks back, a federal judged made the landmark ruling that Kentucky had to honor gay marriages which were contracted in other states. This ruling, if upheld, has the practical effect of legalizing gay marriage in every state of the union. The judge’s ruling was based on last summer’s hydra-headed Windsor ruling by the United States Supreme Court. Windsor overturned the federal Defense of Marriage Act, (DOMA.)

In what has become a predictable dereliction of duty, Kentucky’s Attorney General, Jack Conway, announced that he would not defend the state statute, because “it was discrimination,” and, as he said in his announcement, “that I will not do.”

In other words, he’s appointed himself the legislature, court and will of the people of the entire state. He is also, flatly and obviously refusing to do the job he was elected to do. Pious pronouncements aside, this is a clear failure of integrity on his part. As I said before about other attorney general’s who have done this same thing, they don’t seem to know what their job is.

Attorney’s General are chief law enforcement officers. They are not lawmakers, and even though law enforcement rests in the judicial branch, they are not judges. Attorney General Conway obviously ran for the wrong office.

Now, Kentucky’s Governor, Steve Beshear, has announced that he will hire an independent law firm to defend the state.

Does anyone “get” what a dereliction of duty this attorney general is indulging in? Does anyone understand how wrong it is for the governor to have to spend tax payer money to hire outside attorneys to do the job that the attorney general of Kentucky was elected to do?

I am way past glad that the Governor is taking this step. This court decision is huge. It must be challenged.

In the meantime, I’m wondering if the people of Kentucky are so caught up in the gay marriage bubble that they don’t “get” the full significance of what their AG is going to them. I wonder if any of the people of this country can understand what a breakdown it is for so many attorneys general to refuse to do their jobs.

This isn’t a small thing. It’s a symptom of a very ugly infection of narcissistic dishonesty in the body politic. I am not talking about gay marriage, per se. I am not talking about any issue. I am talking about our system of governance, which depends on people who will govern by the law and by responsible action, not opinion polls.

United States Attorney General Eric Holder has stepped in with a “ruling” of his own, saying that “states attorneys general don’t have to defend gay marriage bans if they view them as discriminatory.”

Isn’t that nice? The nation’s number one cop as decided to publicly indulge in selective law enforcement. He is unilaterally giving anyone who wants to violate their oath in support of the side of an issue that he happens to agree with a free pass from the Justice Department.

If the laws are enforced selectively — which is what the United States Attorney General is doing — then the laws are by definition unjust. Selective enforcement of the law is — dare I say it? — discriminatory on its face.

One interesting side note in this story: Both the governor and the attorney general are Democrats.

 From Time:

Kentucky Gov. Steve Beshear said Tuesday that his office would hire outside counsel to appeal a court ruling that the state must recognize same-sex marriages performed outside Kentucky, just moments after the state attorney general, a fellow Democrat, said he would no longer defend the ban.

Jack Conway, Kentucky’s attorney general, said Tuesday that if he appealed the recent ruling, he would be forced to defend discrimination. “That I will not do,” he said in a statement. “As Attorney General of Kentucky, I must draw the line when it comes to discrimination.”

Beshear promptly announced that his office would continue the appeal, the Associated Press reports, saying there would be “legal chaos” if the courts don’t delay any changes until after an appeal. “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 rapid-fire action and reaction underscored how states are struggling to respond to a wave of court decisions striking down same-sex marriage bans of various kinds. U.S. Attorney General Eric Holder recently said state attorneys general don’t have to defend gay-marriage bans if they view them as discriminatory.


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30 responses to “Kentucky’s AG Refuses to Defend Marriage. Governor Forced to Hire Private Law Firm.”

  1. Laws ARE rather irrelevant when no one will enforce them. And when no one can/will penalize those self-appointed kings, that leaves no redress for the people. I don’t know if they can organize a recall, but if they can, the citizens of KY should recall their AG and replace him with someone who will honor the will of the people of their state. Obviously, we are stuck with Mr. Holder, since he’s untouchably in the President’s hands, but the local versions need their wings clipped and to find themselves on the streets with their office knick-knacks in boxes next to them.

  2. The Onion headline for this story should be “Kentucky Gov. hires new jockey, trainer for dead horse.”

    “People keep picking on the fact that this horse expired several years ago,” Beshear said. “We believe the real reason for its recent losing streak is the lack of proper motivation and riders who don’t have the wherewithal to go to the whip in last furlong.”

    Seriously though, AGs are under no obligation to blindly support any piece of legislation to the bitter end. There is a strong presumption they will defend and enforce state laws, but we invest law enforcement, particularly state’s attorneys, with significant discretionary power. Their enforcement of laws has always taken place in a larger strategic view of what they judge to be in the best interest of “the people.” They routinely enforce laws selectively. They settle for civil fines when laws allow criminal penalties. They allow some of our worst criminals to walk free or serve nominal sentences when the information they provide enables authorities to break a larger criminal network. We demand that they temper their zeal with common sense so that accidental or incidental violation of, say, weapons law is not treated the same as terrorism or career crime, even though the charges might be equivalent in statute.

    In addition, they are sworn to uphold the Constitution. While SCOTUS formally left marriage “to the states”, it made it abundantly clear in its last rulings on gay marriage that the entire framework of justification behind existing gay marriage bans is unconstitutional. It is perfectly reasonable for a state AG to await further rulings and to defend existing law, if only in a pro-forma way. It is not inherently reckless or wrong for them to make a judgment call the other direction, so long as it is articulated in a good faith interpretation of law and not purely on sentiment or political expediency.

    • This is not true Ken, and it should never be true. Law enforcement is supposed to enforce the law. They are not supposed to adjudicate the law, making themselves judges of one. They are also not lawmakers.

      Do you seriously want law enforcement deciding which laws to enforce all on their little own? That would lead to terrible and unjust situations. It would also create chaos.

      The fact that various judges have ruled against state laws means nothing concerning this AG’s duty. Eric Holder’s ruling is a direct exhortation for state AGs to refuse to do their jobs in a matter that he hopes will support an outcome he wants. It is also, as I said earlier, a call for selective enforcement of the law.

      I’m wonder if you grasp exactly what you are supporting here. Selective enforcement of the law is discriminatory on its face.

      As to whether or not the ruling is unconstitutional, that is exactly what is in question. If the AG doesn’t want to do his job, he needs to get another job.

      “Seriously though, AGs are under no obligation to blindly support any piece of legislation to the bitter end. There is a strong presumption they will defend and enforce state laws, but we invest law enforcement, particularly state’s attorneys, with significant discretionary power. “

      • Shouldn’t the Romeike family be put on the next plane to Germany? Their “asylum” here is nothing if not selective enforcement of the law. They have no grounds for asylum under U.S. immigration law. They lost their legal battle for that up to the Supreme Court. The law says they don’t belong here. There are here because the administration in DHS decided that compassion or political expediency (probably the latter), dictated that the public interest would not be served by enforcing the letter of the law in this case. If you are supporting their continued presence in this country, you are condoning selective enforcement of laws. There’s no way around that. The issue then becomes what are the boundaries of such discretionary enforcement?

        • Actually, no, this is not an example of selective enforcement of the law. Selective enforcement is when law enforcement decides to enforce those laws it likes, or only enforces laws against people it doesn’t like. The Romeike’s were evidently allowed to stay in this country through a legitimate legal remedy.

          You don’t understand the concept very well, do you Ken? Is that what you’re so eager to say that any means justifies the ends when it comes to gay marriage?

        • the Kentucky Attorney general is not involved in selectively enforcing a law. He is selectively deciding, without adequate legal grounds, to not do his job in defending a challenge to a a state law. They are two different things.
          He has published no legal analysis showing that the law is obviously unconstitutional. Nor can he.

          True, prosecutors are given the power to selectively enforce laws. They are not given the option to declare validly passed statues unconstitutional, which is what he just did.
          They are two different things.
          Expect a claim to be made against him to the lawyers professional responsibilty board

          • Prosecutors have the option of not prosecuting a particular case, but even they do not have the option of deciding to not prosecute an entire area of the law. Their job is to defend the people in areas of wrong-doing, which is to say, violations of laws. As such, they do not have the option of deciding that a particular law is wrong.

            AGs (who are not prosecutors in the sense I think you are meaning) are charged with defending the law itself. These laws are the people’s laws, passed either by the people themselves by referendum or by the people’s lawmakers in legislative bodies.

            An AG who will not defend the people’s laws needs to be removed from office.

    • So your position is that any attorney general at any time can declare a law unconstitutional and refuse to defend it, regardless of the situation?
      You are mistaking prosecutorial discretion with the OBVIOUS duty of the Attorney General to defend the laws of the state against challenge.
      In your world, each attorney general would become a mini-supreme Court with the power to invalidate laws.
      How come we only have Democratic Attorneys General making this particular decision, in pure conformance with the desires of the party line? It’s obviously a pure political move, not a valid judgment that the law, after careful legal analysis, cannot possibly be upheld by the Supreme Court.
      Be careful what you ask for. Republicans can play the same game, and you will be howling then.
      Your interpretation of Windsor is off. The only thing the decision said is that if a state OK’s gay marriiage the federal government may not deny Federal benefits to them. It specifically left the rest of the statute intact.
      And in Perry, the supreme court decided that due to the bizarre posture of the case, they did not have the power to hear the case.

  3. Sometimes I wish you were a fiction writer. It’s so hard to believe how willing we are to watch our constitutional framework crumble with nary a fight or protest. There are things at play here so much bigger and more fundamental than gay marriage. Hope the scales fall from our eyes soon and good for the governor. Truth really is much stranger than fiction.

  4. It’s interesting that AG’s are allowed to follow their conscience and decline to do their job, and some will step in to defend them when they do so, but ordinary business owners are not.

    • The business owners are not allowed to discriminate. We wouldn’t have any of these issues if people would just stop their discriminating ways. It’s illegal to discriminate against others based on sexual orientation. The sooner people understand that, the easier their lives will become.

  5. Not only is it dereliction of duty for the Attorney General to decline to do the state’s business, it may also be a punishable abdication of his responsibilities under the Lawyers Code of Professional Conduct. Ed Whelan wrote a piece on this at the Weekly Standard.
    It shocks the conscience that an attorney general of any stripe would decide on his own that a law that was passed by the people of his state in a referendum is “unconstitional”.
    Obviously, his duty as a professional public attorney is to mount the best defense regardless of his personal opinions.
    This will come back to bite them. Republicans can do the same thing on any number of measures.
    It is a serious politicization of an office that is specifically supposed to be above politics

    • It shocks the conscience that an attorney general of any stripe would decide on his own that a law that was passed by the people of his state in a referendum is “unconstitional”.

      That is actually an easy determination to make. Everyone in the know about constitutional law knows that such an appeal has no chance of winning. The AGs know this. The governor is just wasting the taxpayers’ money hiring a private form. The only reason to do it is for show to satisfy the backward voters living in his state.

      • I agree he is wasting taxpayer money. The AG should be required to pay it back to the state treasury as salary taken without earning it.

  6. It’s really interesting that these “cafeteria AGs” and their media sycophants are so secure in the rightness of their ideas over the obligations of the position of AG. But let the polarity be reversed, with say, an AG defending/enforcing a law requiring abortion clinics to comply with the same standards as other medical clinics, and hoo-boy would the attitude be different!

    It’s the devil at work.

        • What about when an AG doesn’t enforce a law you like Bill? Does that make him or her a “bad” AG?

          If an AG has an unconstitutional law in his or her state, it is within his or her discretionary powers to choose not to enforce it since it will eventually be shot down by the courts. Why commit an injustice to a couple created by an unconstitutional state law. Especially when its federal counterpart has already been ruled to be unconstitutional.

          • These laws have not been ruled unconstitutional Bill, even the ags who won’t defend them are claiming that. Also, deciding whether or not a law is unconstitutional is not the ag’s job. That job is belongs to the courts.

            When I passed the first protective order in Okllahoma — back in 1982, if I remember it correctly, one of my fellow legislators questioned its constitutionality with the ag and was rebuffed. Then, local law enforcement announced they would not enforce it because it was “unconstitutional” and I had to get that straightened out.

            All this, because back in that day, beating up your wife was a man’s right in some people’s lives.

            Now, you — and a lot of other people — have come up with the fantasy that two men or two women can “marry” in the same way that a man and a woman can. It’s a fantastical notion, and it took massive propaganda, including propaganda against gullible children in our schools, to get people to believe that it makes sense.

            But none of that makes you the adjudicator of whether or not a legal definition of marriage as between one man and one woman is “unconstitutional.” Even if the Supreme Court one day actually rules that it’s constitutional, that won’t make it real. It will still be a fantasy.

            I’ve gone into a rather lengthy explanation Bill because you keep repeating yourself and I have had complaints from other commenters that they’re tired of the same circular arguments.

            Try something new.

            • When a lower court rules something to be unconstitutional and the ruling is appealed, it is correct use of the English language to say that it “has been ruled to be unconstitutional.” Later, you may be able to say that the ruling was “reversed by a higher court.” DOMA was ruled unconstitutional so there is an excellent chance that its state counterparts will likewise be ruled to be unconstitutional. Maybe those opposed to gay marriage should defer to common decency and stop fighting it so much.

  7. Kentucky’s Attorney General, Jack Conway, announced that he would not defend the state statute, because “it was discrimination,” and, as he said in his announcement, “that I will not do.”

    Yes. People are saying “NO” to discrimination. The only ones that can’t are those who have an obligation to their religion to continue to discriminate. These are sad and pathetic people. They are to be pitied more than hated.

    • Bill, when an elected official refuses to do his or her job, even if by refusing to do it, they are agreeing with you, they also opening the door that they will refuse to do it when they DON’T agree with you. You are supporting a situation which frees elected officials from responsibility. I don’t think you grasp the destructive power of government, or the reason why we keep such a lock on it.

      • Yes to this. The moral relativist’s refusal to be critical of bad laws, policies, and political positions that happen to agree with their current opinions is the slippery slope of our society’s undoing and our Constitutions destruction as it’s meaning is more and more warped by the judicial system.

      • when an elected official refuses to do his or her job, even if by refusing to do it, they are agreeing with you, they also opening the door that they will refuse to do it when they DON’T agree with you.

        The AGs declining to defend laws that are discriminatory against homosexuals are doing so because these laws have been judged to be unconstitutional based on DOMA having been judged to be so. If the federal law is unconstitutional per the Supreme Court, there is no way a similar state law does not violate the 14th Amendment. This is an open and shut case regardless of what any religion has to say about it.

  8. Our society is devolving down to one value: nonjudgmentalism. And where nonjudgmentalism prevails, justice is no longer to be found. For how can there be justice without a judge?

    • Well … non-judgementalism as it applies to everyone except traditional Christians. Our society can’t judge us enough, even to the point of making up things.

  9. Rebecca, Can the KY governor fire the AG? If so, why doesnt he save the taxpayers’ time and $$ on this suit and just do it?

    • Kentucky’s AG is an elected official, so no, he cannot be fired by anyone except the people in the next election. It is possible that he could be impeached. That would depend on Kentucky’s constitution.

      Attorney General Eric Holder, (as an example) is appointed by the president. He can be dismissed at any time, for any reason, the president chooses.

      That difference is between elected and appointed.

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