By: John David Dyche
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 Governor 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. The younger Beshear and Democratic U. S. Senate candidate Alison Lundergan Grimes came off as craven weasels rather than profiles in courage.
Instead of telling citizens what he would have done as attorney general, Andy Beshear dodged the question. He claimed it would be inappropriate for him to comment because he might have to render an opinion on the issue if he becomes attorney general. If this is his standard he will not say anything about anything between now and next year's election.
Grimes again proved herself a pusillanimous political coward. Instead of taking a stand she issued a characteristically incoherent statement seeming to say that she feels very strongly both ways. Courageous female politicians everywhere surely winced at her waffling weakness.
Meanwhile, Republican U. S. Senate candidate Matt Bevin launched an ad blasting his primary opponent, incumbent Mitch McConnell, for having helped put Heyburn on the federal bench. McConnell was Heyburn's patron for the post, at least in part because Heyburn made a race for Jefferson County judge executive that served McConnell's 1990 reelection purposes.
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.
Chief Justice John Roberts' dissent emphasized how and why Windsor did not compel such a conclusion. Moreover, Kennedy's "logic" really does lead to legalized plural marriage and the parade of other horribles that gay marriage foes fear.
Is it fair for Bevin to tag McConnell with responsibility for Heyburn's "liberal" ruling? Maybe, but Bevin must also indict conservative icon Ronald Reagan for elevating Kennedy to the highest court.
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.
Removing gay marriage from the regular political process will actually increase resistance to it and delay its ultimate acceptance. It invites a sequel to the ongoing social war over Roe v. Wade and abortion.
Liberals now lauding the Kennedy, Heyburn, and Conway decisions 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. His e-mail is firstname.lastname@example.org. Follow him on Twitter @jddyche.