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Pennsylvania AG Kane will not defend DOMA
July 11, 2013 11:17 pm
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By Rich Lord, Megan Rogers and Kate Giammarise / Pittsburgh Post-Gazette
PHILADELPHIA -- Attorney General Kathleen Kane, who is the state's chief legal officer, declined Thursday to defend against a lawsuit challenging the state's prohibition on same sex marriage, calling it unconstitutional and leaving the job of bolstering the ban to Gov. Tom Corbett.
Ms. Kane is a named a defendant in the lawsuit filed Tuesday by the American Civil Liberties Union and a Philadelphia law firm on behalf of 10 gay couples who want the state to recognize them as married, plus two minor children and one widow. Ms. Kane's office also is charged under state law with the "duty ... to uphold and defend the constitutionality of all statutes."
Somebody else will have to fight for the Defense of Marriage Act, said Ms. Kane, a Democrat. That likely is Mr. Corbett, a Republican.
"It's very historically significant that this lawsuit was filed and I think it is a step to move forward in this commonwealth," Ms. Kane said at a news conference at the National Constitution Center in Philadelphia. "It is now the time here in Pennsylvania to end another wave of discrimination."
Critics said Ms. Kane should just do her job.
"This is clearly dereliction of duty. It's her responsibility to defend the laws of the commonwealth regardless of her personal feelings," said state Rep. Daryl Metcalf, R-Cranberry. "If she doesn't want to do that, maybe she can resign and have the governor appoint someone who wants to do the job."
Jerry Pappert, who served as attorney general from 2003 through 2005, and was the office's first deputy for five years before that, said he didn't know whether Ms. Kane's predecessors had made similar moves.
"Given the attorney general's duty under the Commonwealth Attorney's Act to defend and uphold the constitutionality of all state statutes," he said, "it is unusual in my experience for the attorney general not to do so based solely on his or her personal belief that the law is unconstitutional."
Ms. Kane's decision resembles one made in 2011 by U.S. Attorney General Eric Holder, who opted not to defend the federal DOMA in the case Windsor v. United States. That kicked it to a legal arm of the U.S. House. The U.S. Supreme Court last month ruled the federal act unconstitutional in a 5-4 vote, but did not compel the states to recognize same-sex marriage.
In California, the attorney general and governor declined to defend a ban on same-sex marriages, known as Proposition 8, approved by voters. That left the job to a legal defense fund, but the Supreme Court last month ruled that the fund did not have standing to challenge a lower court decision upending the ban.
Those decisions added momentum to an ACLU plan to challenge the state act, and the organization worked with law firm Hangley Aronchick Segal Pudlin & Schiller to craft the complaint filed Tuesday. The case, Whitewood v. Corbett, is before U.S. District Judge John E. Jones III, and could conceivably reach the Supreme Court.
The first procedural hurdle, though, will be the entries of appearances of defense lawyers. And though Ms. Kane said her office will file a formal answer to the complaint by July 30, it won't be taking its usual position as Mr. Corbett's legal shield.
"I cannot ethically defend the constitutionality of Pennsylvania's version of DOMA," she said. "I believe it to be wholly unconstitutional."
Evan Smoak, 25, of Philadelphia, attended the news conference, along with the husband he married in 2011 in New York, one of 13 states that allow same-sex marriage.
"Having the attorney general come out in support for the LGBT community makes me feel valued," said Mr. Smoak, who is a Ph.D candidate in biochemistry at the University of Pennsylvania.
Ms. Kane said she will send a letter to the governor, delegating the defense to the Office of General Counsel.
While state law charges the attorney general with defending against challenges to statutes, it tasks the separate Office of the General Counsel to "defend the commonwealth or any executive agency when ... the attorney general refuses or fails to initiate appropriate proceedings." The general counsel is appointed by and reports to the governor.
General Counsel James D. Schultz issued a statement saying he was "surprised that the attorney general, contrary to her constitutional duty under the Commonwealth Attorneys Act, has decided not to defend a Pennsylvania statute lawfully enacted by the General Assembly, merely because of her personal beliefs."
Ms. Kane publicly disagreed with the state's voter identification law during her 2012 bid for attorney general, but has not pulled the office's lawyers off the challenge to that law, which will be the subject of a trial starting Monday.
An attorney general isn't positioned to decide, at the beginning of a court challenge, that a statute is unconstitutional, said Michael Geer, president of the nonprofit Pennsylvania Family Institute, which opposes gay marriage.
"No one elected her to be a judge," he said. "Are we getting to the point where an elected attorney general from one party refuses to defend all laws signed by governors of the other party?"
Mr. Geer said he was troubled that the announcement was "done in what might be described as a political setting, with a big audience."
Indeed, Ms. Kane's move could have political reverberations, giving a poor-polling governor a hot potato, while opening a line of attack against the new, popular attorney general.
State Republican Party chairman Rob Gleason issued a statement calling it "unacceptable" for Ms. Kane "to put her personal politics ahead of her taxpayer-funded job by abdicating her responsibilities."
"Pennsylvanians are left with the question, if Kathleen Kane's political beliefs are the standard for law enforcement, what law will she ignore next?"
"I think the AG is making it very clear that she opposes [DOMA], and fairness and equity ought to be the rule," countered Stephen Glassman, former chairman of Pennsylvania Human Relations Commission and CEO of the Design Center of Pittsburgh, who is a board member of the Pittsburgh chapter of the ACLU but does not speak for that organization. "All of the polling is showing a dramatically rapid increase in support for same-sex marriage all across the nation, and in Pennsylvania."
Though there is as yet no clear challenger to Mr. Corbett in for next year's Republican primary, the potential for a conservative uprising might increase if the governor didn't vigorously defend DOMA.
"Corbett does not favor gay marriage," pollster G. Terry Madonna of Franklin & Marshall College wrote in an email. "I would be stunned if he did not have his general counsel or hire outside counsel to defend it. His base expects it and he would have serious problems within conservative ranks if he did not."
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