Similarly Situated; Different Treatment:
Two Public Servants On Different Sides of History
(The following was submitted by an attorney in Kentucky who wished to remain anonymous)
In February 2014, Kentucky Attorney General Jack Conway, citing a “separate ethical canon for prosecutors and elected officers” and a “considered” personal “feeling,” refused to do his duty by declaring that his office would not defend the Kentucky Constitution, the Kentucky Supreme Court, and the vote of 75% of Kentuckians, who overwhelming affirmed marriage as between one man and one woman.
Prior to the supreme Court’s June 26, 2015 ruling on marriage, AG Conway in full support of the “new normal” declined to defend the then law of the Commonwealth before the Supreme Court; and for his refusal, Conway was celebrated by state government officials and the national media alike. However, Conway’s refusal to perform his duty is contrary to Kentucky law KRS 522.020 as he willfully "refrains from performing a duty imposed upon him by law or clearly inherent in the nature of his office.”
Fully acknowledging he 'had a duty to defend the law,' Conway instead articulated to the public via the Lexington Herald Leader his moral reasoning for not defending the law, So moved Conway “began to cry;” as he said, "For those who disagree, I can only say that I am doing what I think is right. In the final analysis, I had to make a decision that I could be proud of — for me now, and my daughters' judgment in the future."
Governor Beshear's response was to say; 'I understand and respect the sincere beliefs of Kentuckians on both sides of this issue” and in order to defend the Kentucky Constitution the Governor engaged an outside law firm at a reported cost to tax payers of $231,348.
Conway also received support at the federal level. US Attorney General Eric Holder encouraged Conway and other state AGs to stand on moral principle and to honor their conscience by refusing to do their job of defending their state’s law on long-held statutes upholding traditional marriage.
Speaking officially, Beshear, Holder and others offered excuses for the AG’s citing to moral principle as he refused to defend the Commonwealth, but in so doing, Conway’s stand set precedent in the matter: Officials may stand on their personal moral code without question of official misconduct.
On June 26, 2015, the DOMA amendment to Kentucky's Constitution was declared unconstitutional based on what Chief Justice John Roberts called in his dissent a “moral” opinion. In response, without discrimination, Rowan County Clerk Kim Davis refused post June 26, 2015, to issue marriage licenses. Period.
Davis is standing on the identical precedent laid down by her Attorney General prior to June 26, 2015 when he too did not execute the duty of his office. Davis, like Conway, holds the evolving definition of marriage is a moral issue and has refused to carry out her official duty which conflicts with her conscience. However, this time there is no excuse extended to Davis and the message to this official from her Governor, is to “do your job” and issue the marriage licenses or resign.
Though clearly similarly situated, County Clerk Davis finds herself apparently on the “wrong side of history” and without the same adulation and support extended to Mr. Conway. State officials and a hostile media are now demanding Kim Davis be charged criminally with official misconduct and face fines or incarceration. This vocal minority, including Governor Beshear, has a different standard for Davis; yet she stands on the same “moral” precedent Conway held to as he refused to do his duty to the People and the Constitution of Kentucky.
For those who look beyond the daily headlines, the difference between the moral ground upon which Conway and Davis stand in refusing to perform their official duty is indistinguishable; but Davis’ official treatment and her treatment at law does not bode well for those counting on the assurances of equal protection under the law as provided for in the 14th Amendment.
In it all, Governor Beshear is an unlikely prophet when he excused Conway in February 2014. His prophecy is fulfilled as we move from One Nation under God to One Nation under government. He rightly said the potential in the marriage dispute for "legal chaos is real." Given the reports from Rowan County, he’s right. Welcome to chaos.
Checklist of Similarly Situated Circumstances:
Two elected Kentucky officials with constitutional offices and requirements: Check
Two elected Kentucky officials with personal "moral" convictions on the institution of marriage acting officially led by their conscience in the execution of their official duties: Check
Two elected Kentucky officials refusing to carry out their duties based on moral convictions: Check
Two elected Kentucky officials: A county clerk earning $80,000.00 annually and the Attorney General earning $117,000 annually. Check
Two elected Kentucky officials standing on same precedent, but treated differently in the media and before the law: Check
One official upheld and celebrated for standing on moral principle - illegal at the time and one official degraded and threatened with fines, impeachment and imprisonment for standing on a moral principle illegal at the time. Check
For further research
oral canon and personal feeling
Had a duty
began to cry
I understand and respect
John Roberts Dissent
do your job or resign