Gay Marriage Panic May Cause Constitutional Conflict

The decision of Kentucky Attorney General Jack Conway not to appeal the ruling of federal judge John Heyburn in the marriage equality case of Bourke v. Beshear did not go over well at all with some members of the Kentucky General Assembly. Even though Governor Steve Beshear has vowed to appeal the decision (with outside counsel still to be determined), Kentucky legislators have drawn up a new bill to allow themselves to enforce the laws of the Commonwealth if the Attorney General bows out.

Senate Bill 221 reads:

AN ACT relating to causes of action in which the state has an interest and declaring an emergency.
     Create a new section of KRS Chapter 6 to give the Speaker of the House of Representatives and the President of the Senate standing to intervene in judicial proceedings in which the constitutionality of any Kentucky statute or constitutional provision is challenged; and amend KRS 48.005 to require statewide constitutional officers to inform the court of the public accountability for funds provisions prior to entering into an agreed order in a legal action to which KRS 48.005 applies; allow the Speaker and the President to intervene in an action to ensure compliance with this section; EMERGENCY.

The EMERGENCY language means that the law would take effect immediately upon passage. And as we have learned from past emergency laws like the Patriot Act, legislators rushing to make new laws in a panic always works out well for everyone.

Aside from being the product of poor judgment, this bill may be totally unconstitutional. Allow me to explain.

In the United States, the federal government and the state governments are all organized according to a basic framework of three branches. Each branch - the legislative, executive, and judicial - has a different role to play. This is called "the separation of powers." This three-part system, at least theoretically, balances itself because each branch does something unique and the other branches have the ability to keep each in check.

Very generally, the legislative branch makes the laws, the executive branch enforces the laws, and the judicial branch interprets the laws and ensures that they're constitutional. This is all basic elementary school civics.

The problem with Senate Bill 221 is that it would inject the legislature - the law makers - into the role of law enforcement. Law enforcement is the domain of the governor and his executive branch. As the Kentucky Constitution states quite concisely:

Governor to enforce laws.

He shall take care that the laws are faithfully executed.

Kentucky Const. Sec. 81.

You'll notice that Section 81 doesn't have any clauses or qualifications. There's no language that says "unless the Attorney General declines to appeal, at which point the General Assembly takes over." The law enforcement power of Kentucky's government is reserved only for the executive branch.

This bill also conflicts with existing statutory law (the kind made by the legislature), such as KRS 15.020, which defines the role of the Attorney General. In pertinent part:

The Attorney General is the chief law officer of the Commonwealth of Kentucky and all of its departments, commissions, agencies, and political subdivisions, and the legal adviser of all state officers, departments, commissions, and agencies...and shall exercise all common law duties and authority pertaining to the office of the Attorney General under the common law, except when modified by statutory enactment.

He shall...appear for the Commonwealth in all cases in the Supreme Court or Court of Appeals wherein the Commonwealth is interested, and shall also commence all actions or enter his appearance in all cases, hearings, and proceedings in and before all other courts, tribunals, or commissions in or out of the state, and attend to all litigation and legal business in or out of the state required of him by law, or in which the Commonwealth has an interest, and any litigation or legal business that any state officer, department, commission, or agency may have in connection with, or growing out of, his or its official duties...

For readers who skip long block quotes, it says the Attorney General is the chief law officer and he represents the Commonwealth in all cases that involve Kentucky laws. While KRS 12.210 allows the Governor to appoint outside counsel, there is no clause or condition which lets legislators take over if they don't like the Attorney General's decisions.

Some other states do allow legislators to hire outside counsel to defend state laws, but not many, and it's not clear to me (I haven't researched each state) whether their constitutions are silent on this issue or whether nobody bothered to challenge the laws' constitutionality.

Realistically, the biggest hurdle to the enactment of SB 221 is not its probable unconstitutionality, but the very constitutional veto power of the governor. Assuming SB 221 is even passed by both houses of the General Assembly at all, the prospects of the law getting past Governor Beshear seem slight. Governors tend not to like ceding executive power to anyone.

Special thanks to attorney Trent Burdick for providing assistance on this post.