Conway owed voters defense, despite personal views

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By Jack Paxton, The Paducah Sun/Kentucky Press News Service

We take Kentucky Attorney General Jack Conway at his word when he says he thinks Kentucky's ban on same-sex marriage is discriminatory. He says he believes the state's constitutional amendment forbidding recognition of such unions will be overturned by the U.S. Supreme Court, which heard arguments on the matter last week. He may well be right.

But we don't think his personal views on the subject, no matter how sincere, excuse him from refusing to defend the law on the state's behalf in his capacity as attorney general.

Conway, a Democrat, is his party's all-but-certain nominee in this year's governor's race. He has already come under attack from two GOP front-runners for his decision not to defend the state's law forbidding legal recognition of gay marriages. His opponents say Conway failed to uphold the duties of his office when he declined to appeal a federal court decision striking down the gay marriage ban.

U.S. District Judge John Heyburn ruled last year that Kentucky's law against gay marriage was unconstitutional. After Conway declined to appeal the decision, Gov. Steve Beshear hired outside counsel to represent the state in the matter. The Sixth Circuit Court of Appeals overturned Heyburn's ruling and upheld Kentucky's gay marriage law, along with similar laws in Ohio, Michigan and Tennessee. That led to an appeal to the U.S. Supreme Court, where the matter now awaits decision.

Conway, on a campaign stop in western Kentucky last week, was asked about the Republican criticism of his decision. He said, "This is not a decision I made for political reasons. There are a lot of people who think I made a decision that would hurt me politically. The only thing I can say to those who disagree with me is, I did what I thought was right."

Conway is correct that from a purely political perspective his decision carried risk, although polls show opinions shifting rapidly on the gay marriage issue in Kentucky. When the constitutional amendment banning gay marriage was passed in 2004 it was supported by 72 percent of the voters. However a Bluegrass Poll last summer showed what appears to be a significant shift in views. The poll found the number of Kentuckians who oppose gay marriage has dropped to 50 percent. Those who favor it numbered 37 percent with another 12 percent saying they were unsure.

But it is not his views on gay marriage per se for which Conway is being criticized. Rather it is his view that he has discretion as to whether or not to defend the state's laws and constitution as attorney general if he does not personally agree with their provisions.

That in our view is a valid criticism. It's not up to Conway as attorney general to decide whether a law is constitutional. That is solely the purview of the courts. Lawyers, meanwhile, are ethically obligated to diligently represent their clients, even if that client's cause proves unpopular or personally distasteful. Conway had an obligation to defend the duly enacted law. But he declined, leaving that task to the governor.

All of that said, we think the chances the issue will materially hurt Conway in the general election are slim. The high court will rule on the Kentucky law by summer's end and most predictions are that it will be struck down in a 5-4 vote. If that happens, Conway's assertion that he needn't have defended the law in the first place becomes an easier sell.

Beyond that we think other issues, primarily economic ones, will be the biggest factors deciding the governor's race. We think Conway was wrong not to represent the voters by defending the gay marriage law, but realistically, circumstances are likely to give him a pass.