Guest Blog by Anonymous Kentucky Attorney
In February 2014, Kentucky Attorney General Jack Conway, citing a “separate ethical canon for prosecutors and elected officers” and a considered personal “feel[ing],” refused to do his duty to defend the Kentucky Constitution and the voice of the 75% of Kentuckians who overwhelming affirmed marriage as between one man and one woman.
Prior to the United States Supreme Court’s June 26, 2015, ruling on marriage, AG Conway, in full support of the “new normal,” declined to defend the then law of the Commonwealth before the Supreme Court; and for his refusal, Conway was celebrated by state government officials and the national media alike. However, Conway’s refusal to perform his duty is contrary to Kentucky law KRS 522.020 as he willfully “[r]efrains from performing a duty imposed upon him by law or clearly inherent in the nature of his office.”
Fully acknowledging he “had a duty to defend the law,” Conway instead articulated to the public via the Lexington Herald Leader his moral reasoning for not defending the law. So moved by the situation, Conway “began to cry;” as he said, that “[f]or 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 that I could be proud of — for me now, and my daughters’ judgment in the future.”
Governor Beshear responded by saying: “I understand and respect the … sincere beliefs of Kentuckians on both sides of this issue.” And in order to defend the beliefs of those who want to define marriage as the union of a man and a woman, the Governor engaged an outside law firm. The contract for private attorneys to handle the cases reportedly cost taxpayers $260,000.
Conway also received support at the federal level. US Attorney General Eric Holder encouraged Conway and other state AGs to stand on moral principle and to honor their conscience by refusing to do their job of defending their state’s laws upholding traditional marriage.
Conway’s stand set precedent in the matter: Officials may stand on their personal moral code without question of official misconduct.
On June 26, 2015, Kentucky’s marriage law was declared unconstitutional based on what Chief Justice John Roberts called in his dissent a “moral” opinion. In response, without discrimination between same-sex and opposite-sex couples, Rowan County Clerk Kim Davis refused to issue marriage licenses. Period.
Davis is standing on the identical precedent laid down by her Attorney General prior to the Supreme Court’s marriage decision when he too did not execute the duty of his office. Davis, like Conway, realizes that the evolving definition of marriage is a moral issue and has refused to carry out an official duty that conflicts with her conscience. However, this time there is no applause from the mainstream media for Davis, and the message from her Governor is to “do your job” or resign.
Though similarly situated, County Clerk Davis finds herself apparently on the “wrong side of history” and without the same adulation and support extended to Mr. Conway. State officials and a hostile media demanded that Davis be charged criminally with official misconduct and face fines or incarceration. This vocal minority, including Governor Beshear, has a different standard for Davis; yet she stands on the same “moral” precedent Conway embraced as he refused to do his duty to the People and the Constitution of Kentucky.
Today, Davis’ opponents got their wish: she was held in contempt of court by a federal court and ordered to be jailed until she begins reissuing marriage licenses.
For those who look beyond the daily headlines, the difference between the moral ground upon which Conway and Davis stand in refusing to perform their official duty is indistinguishable; thus, Davis’ treatment does not bode well for those counting on the assurances of equal protection under the law as provided for in the 14th Amendment.
In it all, Governor Beshear is an unlikely prophet when he excused Conway in February 2014. He rightly said the potential in the marriage dispute for “legal chaos is real.”
Given the reports from Rowan County, he’s right. Welcome to chaos.