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June 2012
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Conway's duty gives way to politics


Jack wept. Kentucky's sensitive Attorney General Jack Conway cried upon having to make a hard political decision before running for governor. Great Edmund Muskie's ghost!

Conway took the Obama administration's advice, put political correctness ahead of the rule of law, and declined to appeal U.S. District Judge John Heyburn's recent ruling that Kentucky must recognize other states' gay marriages.

Whether Conway's were real or Clintonesque crocodile tears only he knows. Some observers swooned. To others Conway's touchy-feely performance reinforced his reputation as a calculating phony.

A few weeks before his sobbing statement Conway filed a brief in Heyburn's court declaring that his oath of office obligated him to defend Kentucky's constitutional amendment defining marriage as between one man and one woman. Rarely has such a solemn duty disappeared so quickly!

Conway may not be constitutionally obligated to appeal Heyburn's ruling as conservative critics contend. His decision establishes a bad precedent regardless.

Lawyers are routinely required to vigorously advance arguments on behalf of their clients that may conflict with their personal views. Likewise, attorneys general should defend all state laws instead of making personal and political judgments about which ones are worthy and which ones are not.

After Conway's abdication Gov. Steve Beshear said the state would hire outside counsel to do Conway's job and appeal Heyburn's ruling. Skeptics say Beshear is also motivated by politics, but he reached the right result regardless of his reasons.

Beshear's son, Andy, wants to succeed Conway as attorney general. Since many state Democrats still support traditional marriage, his father may be trying to protect him from the political fallout that would have followed if the Beshear administration had failed to defend the marriage amendment.

Caught in political cross-currents swirling within their Democratic Party, at least Conway and the elder Beshear took positions.

Conservatives realize that Heyburn did not have to rule as he did. Yes, the judge followed U.S. Supreme Court Justice Anthony Kennedy's tortured "reasoning" in U.S. v. Windsor, but even Kennedy's fatuous rationale stopped short of forcing gay marriage on unwilling states.

None of this is to say that Kentucky should not recognize gay marriage. There is a compelling, even conservative, case for it. Yet the ends do not justify the means.

The dangers to our constitutional democratic republic from imposing such controversial innovations by judicial diktat far outweigh any positives. Kentucky supporters of gay marriage should have worked to enact it via the political process.

That is what marriage equality backers in other states did. It presumably would not take long if public opinion is shifting as fast as polling and gay marriage proponents say it is.

Liberals now lauding Kennedy, Heyburn, and Conway may someday find the legal shoe on the other foot. History shows that conservative judges are equally capable of issuing similarly activist decisions fashioning new economic, property, or other "rights" from constitutional whole cloth.

But weep no more, Jack Conway, please. There's no crying in baseball or politics.

John David Dyche is a Louisville attorney and a political commentator for WDRB.com.

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