Ky. Gay Marriage Appeal: State to Hire Outside Counsel - U.S. Sixth Circuit
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Ky. Gay Marriage Appeal: State to Hire Outside Counsel

Kentucky is still going to defend its gay marriage ban before the Sixth Circuit, but not with the help of anyone employed by the state.

After Kentucky Attorney General Jack Conway refused to defend the same-sex marriage prohibition, citing his refusal to "defend[] discrimination," the governor announced that outside counsel will be hired to represent the state's interests in the appeal, reports The Associated Press.

With Kentucky taxpayer money set to pay for private attorneys, this battle over same-sex unions just got hotter.

AG Backs Down, Private Counsel Steps Up

Conway isn't the only attorney general to refuse to defend his state's gay marriage laws in the face of a federal appeal. The New York Times reports that he was in fact the seventh state attorney general to do -- and maybe not coincidentally, the seventh Democrat to do so.

Whether an attorney general can abdicate his or her duty when faced with a law that offends is a somewhat contentious issue. An easy answer would be to say that a good faith belief that a law is unconstitutional is a good enough reason not to defend it. And it probably doesn't hurt to have the U.S. Attorney General agree with you.

Then again, there are other state attorneys general who have chosen to stick to their appointed duties in these gay marriage cases. For example, Texas Attorney General Greg Abbott is defending his state's same-sex marriage ban despite being personal friends with one of the plaintiffs.

Regardless, with Conway out, Kentucky Gov. Steve Beshear announced that outside attorneys would be hired to defend the Bluegrass State, reports the AP. Gov. Beshear explained that "legal chaos is real" if the state does not manage to delay same-sex marriages from being recognized while the appeal is pending.

Are Outside Attorneys a Smart Move?

Traditional marriage advocates should have learned a lesson from California's Proposition 8 case -- not just anyone can step in to defend a state's laws. Article III standing is an interesting creature, and not even a state supreme court can decide someone has more than a general interest in the case.

But Kentucky's case isn't like California's; the Kentucky government (sans Conway) is still standing as a party to the case. It's just going to be represented by private attorneys.

If the parties are properly situated for appeal, the real problem might just be political. Republicans in the U.S. House made a similar move in defending the Defense of Marriage Act after the DOJ announced it wouldn't defend the law. House Republicans were even poised to pay Bancroft LLC up to $3 million in taxpayer money to do so, The Huffington Post reports.

The Kentucky plaintiffs' counsel, Laura Landenwich, called the move a "waste of taxpayer dollars for the exclusive benefit of these politicians," reports the AP.

Only time will tell if the decision to hire outside counsel will pay off.

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