WASHINGTON – In politics, ridicule is generally the sharpest arrow in the quiver. Nobody wants to be laughed at and, for office holders and office seekers, dismissive scorn can often prove fatal.
Kentucky Gov. Steve Beshear, a good person, is being ridiculed. Unfortunately, it’s his own fault. While the damage ultimately will be limited – he turns 71 this year and probably has waged his last campaign – his legacy is taking a beating.
Beshear, like his Republican counterpart in Indiana, Mike Pence, finds himself on the wrong side of history. He is defending what more and more people are coming to realize is the indefensible. Like the emperor with no clothes, he has no place to run and hide.
A quick recap.
The Kentucky General Assembly, in its infinite wisdom, passed a law in 1998 that essentially barred same sex nuptials by defining marriage as being between one man and one woman. It went a step further in 2004, approving a constitutional amendment, adopted by the voting public, prohibiting the recognition of same-sex relationships, whether defined as a marriage or by some other designation.
We’ll skip the joke about being in Kentucky when the world ends because everything arrives there 20 years later to say times have changed. The American public has moved on the issue of same sex marriage and it’s not looking back. Polls now place the support for such unions at about 55 percent, which constitutes a landslide in this day and age.
Last year, as more and more states began accepting the practice, gay couples challenged the Kentucky constitutional amendment in federal court. U.S. District Judge John G. Heyburn II, appointed to the position in large measure thanks to the efforts of U.S. Senate Republican Leader Mitch McConnell, of Louisville, essentially laughed the prohibition out of court, maintaining that no serious person could make the argument pressed by the commonwealth.
Attorney General Jack Conway took the hint and wisely decided he didn’t want to be tossed into the briar patch. He refused to appeal the Heyburn decision to the U.S. Sixth Circuit Court of Appeals.
Instead comes Gov. Steve Beshear to the rescue of the anti-gay crowd — a strange position for a loyal Democrat — taking the issue to the intermediate court in Cincinnati where he received a favorable review from a biased panel, setting the stage for arguments before the U.S. Supreme Court.
And that’s where the good governor has tickled everybody’s fancy.
Ashland attorney Leigh Gross Latherow, representing Beshear, filed a brief before the high court asserting that the Kentucky law is not discriminatory because “men and women, whether heterosexual or homosexual, cannot marry persons of the same sex.”
While a rather provocative thought, perhaps, a reasonable person might ultimately begin to wonder why a straight person would want to marry a person of the same sex given that, well you probably get the picture. Undoubtedly hundreds of thousands of Kentuckians are sighing with relief thanks to the state’s argument.
The governor can argue until he’s blue in the face – blue, of course, being the color of the week in Kentucky – that all he wants to do is get a final determination. But the arguments being laid out are being done under his name and his sanction.
A ridiculous conclusion, perhaps, but it doesn’t stop there. That same argument was raised before, in a different time and place, when the Commonwealth of Virginia sought to protect its law prohibiting a white person and a black person from getting married, in the landmark Loving v. Virginia case.
The case was brought by Mildred Loving, a black woman, and Richard Loving, a white man. The couple was sentenced to a year in prison each for the crime of marrying each other. The trial judge who found against the Lovings, in his decision, Judge Leon M. Bazile, wrote:
“Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.’’
The case found its way to the U.S. Supreme Court.
The Supreme Court, in a unanimous 1967 decision, found the state’s anti-miscegenation law unconstitutional. Writing for the court, Chief Justice Earl Warren said, “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.’’
What seems to be escaping Beshear here is that he is the modern embodiment of Judge Leon M. Bazile. Marriage, as Warren noted, is a basic civil right of not only man, but woman. And upholding the commonwealth’s opposition to gay marriage is tantamount to upholding Virginia’s anti-miscegenation statute.
The governor can argue until he’s blue in the face – blue, of course, being the color of the week in Kentucky – that all he wants to do is get a final determination. But the arguments being laid out are being done under his name and his sanction.
If he doesn’t believe in what is being said in his name, the obvious response is he ought not do it, find some other sucker from a similarly situated state who actually believes this garbage and let him or her proceed. Otherwise leave well enough alone. What he’s doing, as the saying goes, just ain’t right.
Beshear isn’t the only one who has fallen into a trap. Pence currently finds himself having to defend – not very well – a law he signed that basically would permit businesses to deny service to gay couples based on religious beliefs. The Arkansas legislature has followed suit but the governor there, Asa Hutchinson, a Republican viewing the Pence predicament from afar, has asked lawmakers to reconsider.
In his defense, Beshear vetoed Kentucky’s own so-called religious freedom law in 2013 but it was overridden by the General Assembly. But that hardly absolves him having his name attached to a case defending what obviously is a discriminatory practice.
Years ago, Lee Iacocca, who saved Chrysler from bankruptcy, was popularly quoted as saying “Lead, follow or get out of the way.’’ Gov. Beshear is guilty of having embraced none of those options.
I would like to take a moment on a point of personal privilege to congratulate a former co-worker, boss and longtime good friend Mark Neikirk, a key figure at the late and lamented The Kentucky Post, on his selection to the Kentucky Journalism Hall of Fame, a well-deserved recognition if, for no other reason, he put up with my shenanigans for many years. The selectors also chose, among several other, the late Ed Reinke, one of the nation’s great news photographers and a great guy to boot. The only problem with Reinke’s choice is that it took too long. (See NKyTribune story here.)
Washington correspondent Bill Straub served 11 years as the Frankfort Bureau chief for The Kentucky Post. He also is the former White House/political correspondent for Scripps Howard News Service. He currently resides in Silver Spring, Maryland, and writes frequently about the federal government and politics. Email him at williamgstraub@gmail.com.