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Zoeller on wrong side of history in marriage debate


Two neighboring states. Two attorneys general. Two very different reactions to legal assaults on their man-woman-only marriage laws.

In Kentucky, Attorney General Jack Conway comes to tears as he discusses his decision not to appeal a federal judge’s decision that his state was constitutionally obligated to recognize gay marriages that had been performed in other states.

North of the Ohio River, Attorney General Greg Zoeller rushes to defend Indiana’s anti-gay-marriage law against all challenges.

Both men say they are acting out of conviction. But the tide of history, and a truth that goes deeper than the law books, are on Conway’s side, not Zoeller’s.

Since the Supreme Court last year struck down the federal marriage law, several federal and state judges have issued rulings against anti-gay-marriage laws. U.S. District Judge John G. Heyburn’s February ruling in the Kentucky case was the first in a Southern state.

In his opinion, Heyburn, an appointee of President George H.W. Bush who once represented Sen. Mitch McConnell, acknowledged the importance of religious beliefs in American society. But he wrote, “assigning a religious or traditional rationale for a law, does not make it constitutional when that law discriminates against a class of people without other reasons.”

After Conway read the decision, he declared that “Heyburn got it right” and that “I must draw the line when it comes to discrimination.” Moreover, he said, “in light of other recent federal decisions, these laws will not likely survive upon appeal. We cannot waste the resources of the Office of the Attorney General pursuing a case we are unlikely to win.” Unfortunately, Kentucky’s governor, Steve Beshear, quickly announced that he would hire private counsel to appeal Heyburn’s ruling.

But Conway’s point was made.

Zoeller disagrees with that approach. He has had Indiana join other states in filing amicus briefs with the Supreme Court on behalf of marriage-limiting laws in other states. He announced that he will defend the law against a state suit filed by four same-sex couples. Before he even received service of the suit, he announced that he would defend the law against a similar suit filed in federal court. Friday, three other federal lawsuits were filed against the law, including one that includes two Fort Wayne plaintiffs, Monica Wehrle and Harriett Miller, who was the founding director of the Fort Wayne Women’s Bureau Inc. The attorney general’s office did not immediately comment on those latest suits. But if there were a challenge against Indiana’s law filed on Mars, Zoeller would no doubt become the first attorney general to mount an interplanetary defense.

“I’ve seen where some of my colleagues have made the decision that it’s unconstitutional,” Zoeller said when asked about his stance Friday. But Zoeller believes it’s not up to him to judge the rightness or wrongness of the law.

“I didn’t write the law. I didn’t vote yes or no,” Zoeller said. “I’m just the officeholder. The legislature has obligated me to defend our statute.”

Acknowledging that the U.S. Supreme Court will ultimately decide the question, Zoeller is operating from current law “that states have the authority to license marriage. … My constitutional role is to stand up and argue the case for the states.”

Zoeller declines to specify how he personally feels about the current state law forbidding gay marriage. But he notes that as a Catholic, “I view marriage as a religious sacrament, and the idea that the state licenses marriage is a secondary thing.”

To Zoeller the AG, his own feelings are irrelevant, though. His office defends the death penalty, too, though “I’m morally against the death penalty because of my faith as a Catholic.”

It all boils down to this for Zoeller: he doesn’t feel he can “pick and choose the cases I defend.”

Zoeller’s argument has internal cogence and coherence. But we believe he is wrong.

“There are two types of laws: just and unjust,” Martin Luther King Jr. once said. Judges around the country are looking beyond the thicket of state laws and the always-wobbly intersection between state and federal authority and asking themselves if laws that grant some people a right and deny it to others can be upheld under the broadest principles of our Constitution. To a one, these judges are concluding that they cannot be.

Kentucky’s attorney general, who once merely “did his job,” finally got it, too. Zoeller, alas, has not.