Kane Won’t Defend Same-Sex Marriage Ban

Kathleen Kane portrait

Kathleen Kane

Pennsylvania Attorney General Kathleen Kane announced Thursday that she will not defend Pennsylvania’s 1996 Defense of Marriage Act in the federal lawsuit that was filed on Tuesday by the ACLU.

“I cannot ethically defend the constitutionality of Pennsylvania’s (law banning same-sex marriage), where I believe it to be wholly unconstitutional,” Kathleen Kane announced to reporters at the National Constitution Center in Philadelphia

“We are the land of the free and the home of the brave, and I want to start acting like that.”

The American Civil Liberties Union filed a lawsuit against the law on behalf of ten same-sex couples and one widow on the grounds that the law violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.

The suit, which was filed in Harrisburg, is the first challenge to a state law against same-sex marriage since the U.S. Supreme Court struck down DOMA in the case Windsor v. U.S. It is expected to be the first of many suits filed by the ACLU to overturn state laws against gay marriage.

Kane’s decision not to defend the 1996 PA law echoes the decision by the Obama Administration’s Justice Department to not defend the 1996 federal law in the Windsor case. It is likely though not yet certain that Governor Corbett, who is also named as a defendant in the suit, will appoint someone to defend the statute in federal court.

Kane will likely face criticism, as the Obama DOJ did, for failing to defend the state’s laws. The Pennsylvania Family Institute, a conservative group, denounced the suit when it was filed and warned that they expected Kane to fight the suit.

“It now falls on our elected officials, including the Attorney General, to defend the duly-enacted Defense of Marriage Act in the Federal Court, which we hope and expect they will do with vigor.”

PA GOP Chair Rob Gleason blasted Kane’s move.

“She is blatantly politicizing the highest law enforcement office in our Commonwealth at the expense of a core responsibility of the Attorney General’s office. Kathleen Kane is failing our citizens and this situation leaves a gaping doubt in her ability to fairly execute her job,” Gleason said.

“Pennsylvanians are left with the question, if the Kathleen Kane’s political beliefs are the standard for law enforcement, what law will she ignore next?”

Kane’s decision was applauded, however, by LGBT advocate and openly gay State Representative Brian Sims (D-Phila).

“Attorney General Kane, Pennsylvania’s lead legal authority, has a keen legal mind and in her determination has decided that continuing to defend the Commonwealth’s DOMA has no legal merit,” he said.

July 11th, 2013 | Posted in Front Page Stories, Harrisburg, Top Stories | 27 Comments

27 thoughts on “Kane Won’t Defend Same-Sex Marriage Ban”

  1. Scotty- Independent AG allows investigation of abuses by executive/Gov. With a Governor like Corbett we need it, not a flunky.

    Brrrrdat – Graduating from Widener barely qualifies you to fight a traffic ticket, let alone be a legal scholar.

    Kathleen3- Corbett isn’t Kane’s “client”, the people of PA are (particularly gays who are being denied their rights). Corbett’s more likely to wind up as a defendant prosecuted by Kane than as a client.

    bobguzzardi – The AG is not refusing to enforce a law, she’s refusing to defend it in court when it has no legal merit. HUGE difference.

  2. Brian C says:

    Right now, your representatives and senators could opt to be #heros to your constituents by cosponsoring HB/SB76 but, so far too many are ignoring what a debilitating tax is doing to eliminate their homeowner constituents. Among the hardest hit are U. S. military personnel, young families, and seniors .. Learn about how/why HB/SB76 benefits not just one segment of our population or another but, ALL Pennsylvanians http://www.ptcc.us

  3. Brrrrdat says:

    Congratulations you win the David Diano tldr Basement Dweller Award

  4. Brad says:

    Brrrrdat –

    I never claimed to be a legal scholar. I didn’t attend Widener, but rather graduated from a different law school in Pennsylvania–in Philadelphia to be more specific. I’ve been practicing in the private sector for quite a while, with significant experience dealing with the Commonwealth Attorneys Act. Some of us are more concerned with knowledge and experience than with resumes. Based on the lack of depth in your response, I would gladly match mine against yours, son. And what did you offer to dispute my points? Yeah, I thought so.

  5. Brrrrdat says:

    Graduating from widener doesn’t make you a legal scholar either

  6. Kathleen3 says:

    This woman is nothing more than a figurehead for the Democrats and unions (redundant) who is more impressed with herself than anyone else in PA is impressed with her.

    Whether she opposes Governor Corbett or not, he is her client. If this woman had any sense of dignity and protocol she would have informed the Governor to seek alternative counsel.

    Instead, she stands in front of the cameras she so loves, smiling like an 8th grader who just won the spelling bee, and in so doing demeans not only the office but our state.

  7. Brad says:

    I am amused that everybody becomes a self-considered legal scholar each time he or she has an opinion. If you have not graduated from law school and practiced law, your opinion on legal matters is no more well-informed as my children (yeah, they can read too, but they are not attorneys). Even if you are a practicing attorney with no experience dealing with the Commonwealth Attorneys Act (other than merely reading it–again, my little kids can do that too), you likely have no idea what you are talking about. I don’t like cancer, but that does not make me an oncologist, or even any type of doctor (most of whom are not equipped to handle cancer).

    First, let me point out the Attorney General declining to represent the Commonwealth of Pennsylvania in a legal action certainly does not mean the Commonwealth of Pennsylvania cannot or will not be represented. Second, the Commonwealth Attorneys Act permits the Attorney General to decline representation of the Commonwealth of Pennsylvania in matters, including statutes, he or she finds to be in conflict with superseding law (e.g., US Constitution, federal law, Pennsylvania Constitution). Again, that does NOT mean the Commonwealth is or will be unrepresented.

    The provisions addressing an Attorney General’s objection based on potential conflict with superseding law is the primary reason the Commonwealth Attorneys Act provides for representation by attorneys in the executive branch (i.e., Office of General Counsel attorneys). In this case, Attorney General Kane’s decision to decline representation of defending the Commonwealth in a challenge to its state-DOMA (or “mini-DOMA”) on federal constitutional grounds (based on her reading of recent prevailing federal law (as interpreted by the US Supreme Court–yeah, that is prevailing federal law, whether you like the decision or not) means now it is Governor Corbett’s decision to defend the statute via the OGC. Attorney General Kane’s decision is not an unconstitutional or impeachable offense, dereliction of duty, unethical behavior, or even a new concept in Pennsylvania. This happens frequently.

    Pennsylvania’s two-prong legal representation issue, based on having an independent elected Attorney General who may not necessarily agree with the sitting Governor allows for this. The difference in this case merely is that it is higher profile than most other situations (and people usually don’t have any idea what they are talking about–though that doesn’t stop them from talking). In a trial which begins Monday, OGC is spearheading defense of the Commonwealth of Pennsylvania in a Commonwealth Court legal challenge to the Voter ID law. As a legal matter, it is not exactly the same. But, also as a legal matter in terms of the Attorney General’s obligations, it is a distinction without a difference.

    If Attorney General Kane’s decision was an unconstitutional or impeachable offense, dereliction of duty, unethical behavior, or even a new concept in Pennsylvania, the Governor (through OGC), Pennsylvania’s Unified Judicial System, and/or the General Assembly would take action against her. They won’t. Then again, what would the OGC and the Pennsylvania Unified Judicial System know about the Commonwealth Attorneys Act? But I’m sure you know much more.

  8. Scotty says:

    I am not very partisan. Center-Right on most issues. In my opinion the AG should be appointed by Governor just as extension to Executive branch of the state. The AG of state should not be allowed to run for office while serving in that position. In New Hampshire they appoint the AG. And when Kelly Ayotte deiced to run for senate in 2010 she had to resign her post. That’s the way it should be.

  9. Scotty says:

    I am not very partisan. Center-Right on most issues. In my opinion the AG should be appointed by Governor just as extension to Executive branch of the state. The AG of state should not be allowed to run for office while serving in that position. In New Hampshire they appoint the AG. And when Kelly Ayotte deiced to run for senate in 2010 she had to resign her post. That’s the way it should be.

    But like said I am for marriage for all.

  10. Observer says:

    Gleason once again shows himself to be an ignorant braying donkey. I guess he does not recall when the Democratic President refused to defend DOMA, or when the REPUBLICAN Governor of California refused to defend Prop 8? What a maroon, as Bugs Bunny would say. Her oath was to defend the PA CONSTITUTION, not every crazy law the Teabaggers and Corporate Lackeys and ALEC-paid bribetakers ram through the legislature in the dark of night.

  11. Tim says:

    Does everyone forget that Rep. Matcalfe asked the AG not to enforce any federal gun laws?

  12. bobguzzardi says:

    So…. what’s the point of enacting laws, if the AG can supersede the General Assembly and Governor?

    Is the AG the de facto legislature and executive of Penna picking and choosing what laws are Constitutional and unconstitutional?

    I thought that that was the function and responsibility of the separate and equal judicial branch.

    What does the Rule of Law, Checks and Balances and Separation of Powers mean to a Democrat?

  13. PAMike says:

    Republicans – how does it feel to be on the side of inequality and the wrong side of history. Truly the party of yesterday – watching these right-wing nut jobs trip over themselves to make sure that folks are treated unfairly – marriage/employment (take your pick) – is really sickening.

    Remember it’s all fun ‘n games until you have a gay son or a lesbian aunt that can’t see their loved ones in the hospital or are denied health benefits.

    Please think of the harm you cause others rather than pandering to a hateful ideology.

  14. BJ:
    Defending a guy who is guilty is completely different than convicting a guy who is innocent. Even a guilty guy deserves a fair trial and legal representation, even if only to get him life-imprisonment sentence over the death penalty.

    BTW: Here’s the latest from Pat Robertson on why people are gay (but really just confused heterosexuals):

    “A lot of people are into this homosexual thing because they’ve been abused by a parent, abused by a coach, abused by a sibling, abused by a friend, they’re little boys and little girls and they don’t know any better and then they somehow think, ‘well I must be gay,’ they aren’t they are heterosexual and they just need to come out of that.”
    He added that some gay people “maybe got some chromosomal damage that’s different from heterosexuals.”

  15. B.J. says:

    Policyguy – That is incorrect. Kane rejected the lottery management contract the Corbett administration presented to her for approval. Reviewing state contracts is one of her duties. The litigation that came after was the administration appealing her decision.

    Another of her duties, which she is refusing to carry out, is defending ALL statutes in court.

  16. flynnbw says:

    The AG would be JUST as political if the position were appointed by the Governor rather than elected (in fact, isn’t that the exact reason PA changed the Constitution to make the position elected in the first place? Because the appointed AG was political and/or corrupt?)

    If you don’t believe me, just ask any conservative critic of appointed US Attorney General Eric Holder.

  17. Policyguy says:

    I believe that when the Governor was challenged on the legality of privatizing the state lottery, the then appointed Attorney General declined to take on the case, allowing the Governor to hire private counsel to defend his actions against allegations that they violated state law. Since the creation of the office of elected Attorney General there have been numerous instances where the Attorney has deferred taking on a case and referred the case back to the Office of General Counsel. I’m fairly certain that some of those decisions involved policy disagreements or even ethical questions. If Kane believed that the administration could produce a better defense of the act than she was prepared to offer for whatever reason, is it better for those who support the state law to be represented by General Counsel?

  18. Scotty says:

    I wish the AG was just appointed by the Governor like it is in the Federal Govt. and a few states. I am sick of political “stars” like Tom Corbett and Kathleen Kane. Who obviously just used the AG office to gain higher office. That is not the role of the office. I support of the repeal of the law but you can’t pick and choose what you will and wont defend. I lost a lot of respect for her. I will reconsider voting for her next time. She was the only Dem I voted for in 2012. I guess she thought she had a mandate

  19. B.J. says:

    David – She should defend the law for the same reason a Public Defender defends a defendant whom they have no doubt is guilty: because that’s the part she plays in the legal system. One of the statutory jobs of the Pennsylvania Attorney General is to defend challenges to laws that the duly elected legislature has enacted, whether or not they agree with them.

    As an attorney, it is her duty to argue on behalf of her client (here the state) as best she can. Every attorney (including myself) has to at some point in their career make arguments that they don’t believe in, because they are in the best interest of the client. It’s part of the job.

    As I said, I fully support repeal of PA DOMA. But to say there is not a constitutional basis for it is ludicrous. When OGC defends it, their argument will be that regulation of marriage is clearly an issue that falls under the authority of state government, and that the standard of review here, since we’re not talking about race or sex, is rational basis. They will then argue that the rational basis for this definition is the promotion of a stable relationship for which to conceive and rear children.

    Is that a load of crap? Absolutely. Do I believe it? No. Could I (or Kathleen Kane) effectively argue it anyway? Of course.

  20. BJ:
    The key here is the word “ethically” in her statement:

    “I cannot ethically defend the constitutionality of Pennsylvania’s (law banning same-sex marriage), where I believe it to be wholly unconstitutional”

    Otherwise, by defending it in court, she’d be making false representation.

    I’ll give you a different analogy:
    Let’s say the police arrest someone on suspicion of murder. Let’s say that the AG, prosecutor, etc. believes that the evidence is circumstantial, not substantial, and even that the accused is likely innocent. But, also, the prosecutor could through the use of jury selection and overwhelming a poor defense counsel, get a conviction by putting on a strong case and presenting the evidence as not circumstantial.

    Should a prosecutor work disingenuously to convict someone merely because they can get a conviction, regardless of the weight of the evidence (especially if they believe the real killer is still on the streets)?

    I should hope not.

    Why should Kane work to deny people their constitutional rights, by having to make false/hollow arguments against the ACLU merits? It would be like punishing innocent people.

    I’d rather Kane go after the banks and big corporations defrauding people every day, that fighting to stop people that love each other from getting married.

  21. B.J.-
    The principle of equal protection under the law isn’t “personal politics”. The only arguments against gay marriage are religious ones (like Metcalfe silencing Sims claiming marriage is “God’s Law”).

    The people fighting gay marriage are the ones who think gays are: “queers”, “sexual deviants”, “molesters”, “immoral”, “sinners”, “psychologically confused” or “disconnected from God”.

    They believe sexual orientation is a choice, but when questioned, never seems to have actually “chosen” to be straight themselves, indicating that they were born straight.

    There are still idiots out there who think the Earth is about 6,000 to 10,000 years old instead of about 4.5 billion. The idiots running the state house and the governors mansion could pass some law forbidding people to claim the Earth was billions of years old, under penalty of fraud. That doesn’t mean that the AG should waste time defending it.

    If you REALLY think Kane should defend this stupid-ass law, then here’s a scenario for you:
    1) She goes to court.
    2) She asks ACLU witness: “Is being gay an inherent property of people or a choice?”
    3) When the witness answers: “It’s inherent”, Kane says, “The defense rests”

    You see, as an attorney, particularly AG, she is also bound to put up only good-faith defense/arguments/representations. If she cannot in good-faith disagree with the ACLU points, because she believes them to be correct on the merits, then she can (and should) concede.

    Here’s another scenario: She agrees to have her office take the case, and assigns it to the absolute worst attorney on her staff and gives him almost no resources (because she and her department are actually busy with important cases).

  22. B.J. says:

    David,
    Actually, Larry is spot on in his assessment of the duties of the Attorney General. The Commonwealth Attorneys Act states:
    It shall be the duty of the Attorney General to uphold and defend the constitutionality of all statutes so as to prevent their suspension or abrogation in the absence of a controlling decision by a court of competent jurisdiction.

    There isn’t room for interpretation there. Now, personally, I’m all for repealing PA’s DOMA, but Kane is clearly in the wrong here. It’s not the purview of the Attorney General to decide whether Acts of the General Assembly are constitutional. That is a job for the courts. It is the Attorney General’s job to defend the laws of PA, regardless of personal politics.

  23. Kane is a loser says:

    kathleen kane, a typical lefist liberal loser…defending whatever laws she deems fit, as if she’s God. No different than Obama ignoring immigration laws. These democrats make me sick. It’s all about politics to them. As long as a liberal protected group, like gays or mexicans, benefit, they ignore America’s laws. They can go to Hell for their treason. The law is the law, and it isn’t the job of the fake DA to pick and choose which to defend. I hope all PA democrat losers get crushed in 2014 for this scam.

  24. David Diano says:

    Larry,
    The AG doesn’t have to defend laws that were enacted in violation of the US or PA constitutions. If she can find no legal basis for defending it, and she agrees with the ACLU on their merits, then she shouldn’t waste the taxpayers time/money fighting to defend bigotry. Because let’s face it, bigotry is the ONLY purpose of these laws.

  25. Larry says:

    The response to this decision has been interesting. Liberals praise Kane for standing up for gay marriage, ignoring that Kane is violating the Commonwealth Attorneys Act in doing so. Conservatives point to the Commonwealth Attorneys Act, and are called bigots for doing so. I have no objection to gay marriage, and I truly believe that the party devoted to keeping the government out of individual’s lives should be consistent on this point. But I am very concerned that Kane will pick and choose, based on her own political beliefs (and ambitions), which cases she wants to defend. What precedent does this set for future AGs, and how will the liberals feel when their ox is gored?

  26. delco observer says:

    This is why PA has an independent AG and the Governor has his own Office of General Counsel. Recall that back in 2010, a certain Attorney General went his own way, and wasted taxpayer dollars to politicize his office on a fool’s errand to try and have the Affordable Care Act declared unconstitional. Here, PAs DOMA is unconstitutional, and the AG has made that assessment, exercising her constitutional independence. Let the Governor do his thing and defend the unconstitutional Pa DOMA.

  27. She won’t defend the indefensible.

    It’s nice having a good AG in PA.

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