Move suggests state attorney general is considering joining counterparts in six other states who have decided not to appeal similar rulings.
Kentucky’s attorney general asked a federal judge on Thursday to delay by 90 days an order requiring the state to recognize same-sex marriages performed in other states.
Citing the importance of the case, Attorney General Jack Conway’s office asked U.S. District Judge John G. Heyburn II to delay the effective date of his order for 90 days to give Conway the chance to decide whether to appeal.
The motion says Gov. Steve Beshear, also a defendant, needs time as well to decide how to implement the order if it is not appealed.
The motion suggests that Conway is at least considering joining six other state attorneys general who have decided not to appeal rulings throwing out marriage bans. Those officials, all Democrats, said the laws are discriminatory and violate the right to equal protection under the law.
Conway has said he is legally bound to defend Kentucky statutes and its marriage amendment, but U.S. Attorney General Eric H. Holder Jr. declared Monday that state attorneys general are not obligated to defend laws they believe are discriminatory. In an interview with The New York Times, Holder said officials who have carefully studied bans on gay marriage could refuse to defend them.
In the motion filed Thursday, assistant attorneys general Clay Barkley and Brian Judy say they reserve the right to request a stay of the order pending a possible appeal.
In his 23-page opinion earlier this month, Heyburn said Kentucky’s ban, , which has been in place since 2004, deprives gays and lesbians of numerous legal protections that are available to opposite-sex couples and violates the constitutional guarantee of equal protection under the law.
Heyburn said at a hearing Wednesday that he expected to make his order final within 24 hours.
The attorney general’s request doesn’t mean that Heyburn’s decision won’t go into effect. The judge did not immediately rule on a potential delay.
Should Heyburn issue a final order and deny a delay, same-sex couples would be allowed change their names on official identifications and documents and obtain any other benefits of married couples in Kentucky. Heyburn’s ruling doesn’t affect a related lawsuit seeking to force the state to issue marriage licenses to same-sex couples.
The decision in the socially conservative state comes against the backdrop of similar rulings or actions in other states where same-sex couples have long fought for the right to marry. Kentucky’s constitutional ban on same-sex marriage was approved by voters in 2004 and included the out-of-state clause.
On Wednesday, a federal judge in Texas struck down that state’s gay marriage ban but immediately delayed the implementation of his ruling pending appeals by the state.
The Kentucky ruling came in lawsuits brought by four gay and lesbian couples seeking to force the state to recognize their out-of-state marriages.
Attorneys for the four couples who won the case weren’t immediately available for comment.
The proposed order only requires Kentucky to recognize the marriages of gay and lesbian couples performed in other states or countries. It does not deal with whether the state can be required to issue marriage licenses to same-sex couples, an existing ban that two gay couples have asked Heburn to strike down.
Martin Cothran, a senior policy analyst for the Family Foundation of Kentucky, criticized Attorney General Jack Conway’s handling of the case, accusing him of “spiking” the state’s defense by not making persuasive arguments to keep the ban in place.
“If this were a private case, it would be legal malpractice,” Cothran said. “The longer the attorney general drags his feet on this case, the worse it is for Kentucky voters.”
Laura Landenwich, an attorney representing several of the couples who sued, said a delay in implementing the ruling leaves state employees in legal limbo.
“Basically, you are the state officer and employee and you need to know what you can and can’t do,” Landenwich said. “It’ll be interesting to see what happens.”