Ky. and Ind. AG's have difference of opinion on same-sex marriage


by Brooke Hasch

Posted on March 16, 2014 at 12:09 AM

Updated Sunday, Mar 16 at 12:10 AM

FRANKFORT, Ky. (WHAS11) -- As the debate on same-sex marriage continues to gain momentum across Kentucky and Indiana, we're hearing from both Attorneys General, side by side, about where they stand on the issue.

Both states are faced with similar lawsuits calling the ban on gay marriage unconstitutional.

Just last month, Kentucky's Attorney General Jack Conway announced he would not appeal a federal decision that would allow the state to recognize same-sex marriages performed out of state. But across the river, Indiana's Attorney General Greg Zoeller says he will fight for the traditional definition of marriage. But his reasoning is far different than Conway's. Zoeller says it boils down to how the office he holds was established.

"In the state of Indiana, the Attorney General is actually a legislative office, so it's created by our legislature. It's not a constitutional office. So, there's a requirement by my office to represent the legislature," Zoeller said.

But in Kentucky, the Attorney General's office was instated by the constitution, a document Conway says he will uphold unless he finds a flaw.

"The attorney general's duty is to the people and no other particular office holder, and the Attorney General doesn't have to to uphold every single law in the constitutional battle, the Attorney General can sue another state agency if he thinks it's unconstitutional," Conway said.

Last month, Conway parted ways with Governor Steve Beshear on a lawsuit asking the state to legalize gay marriage. Conway claimed the current ban passed by Kentucky voters is discriminatory. Beshear has now hired an Ashland law firm to represent the state in this case, saying he'll uphold the ban.

"It was a very awkward legal position, in that we were both defendants and I was his attorney. So he was my co-defendant and also my client. Like Stumbo said on the floor of the House, he thought it was the right decision and I should not appeal it and I should tell my client that. That's essentially what happened but he came to a different conclusion. he's a man of good faith, I respect him, but we came to a different conclusion," Conway said.

So does the opinion they hold in office differ from their opinion at home?

"I have my personal views and as the office holder, I'm free to speak to the clients, but really my obligation is to the client, the legislature, who created it. I'll be the law firm, not just the private lawyer, that will represent all statutes whether I agree with them or not," Zoeller said.

The same issue in both states now heads to different courts of appeals.

"But eventually this question is going to be filed up by the Supreme Court of the United States," Zoeller said.

The state of Indiana is facing four different lawsuits pertaining to same-sex marriage, including one from the ACLU, the gay-rights legal organization Lambda Legal, and a lawsuit filed by four Indiana same-sex couples.