Pennsylvania Attorney General Will Not Defend State’s Gay Marriage Ban In Court

Pennsylvania’s Democratic Attorney General announced today that she will not defend the state’s law against same-sex marriage in Court from a newly filed lawsuit challenging its constitutionality:

Pennsylvania Attorney General Kathleen Kane said Thursday she cannot defend that state’s version of the Defense of Marriage Act against a federal lawsuit that seeks to overturn the state ban on gay marriage.

“We are the land of the free and the home of the brave, and I want to start acting like that,” Kane told reporters at the National Constitution Center in Philadelphia.

Kane says she has not spoken to Gov. Corbett about her decision. Quoting Robert F. Kennedy to loud applause, she said ripples can create a wave to break down walls of intolerance.

State law says the attorney general is supposed to defend the constitutionality of Commonwealth laws, but also that the attorney general may allow lawyers for the governor’s office or executive branch agencies to defend a suit if that is more efficient or in the best interest of the state.

Kane’s move is similar to the what happened in the two same-sex marriage cases decided by the Supreme Court last month. In United States v. Windsor, the Obama Administration declined to defend the Defense Of Marriage Act on appeal. In Hollingsworth v. Perry, both California Attorney General Kamala Harris and Governor Jerry Brown declined to defend Proposition 8 on appeal.  Additionally, at the trial phase in that case then Attorney General Jerry Brown had declined to defend the case so that task was undertaken by the Governor’s Office. This is likely what will happen in Pennsylvania. 

What will be interesting with regard to the Pennsylvania case is what might happen after the 2014 elections. Governor Corbett is among the most vulnerable incumbent Governor’s out there right now and, if he loses, its likely that the Democrat who replaces him will make the same decision as Kane did. Since it’s unlikely that the appeals in this newly filed case will be exhausted by the time a new Governor takes office, that could leave the case in the same procedural posture as Hollingsworth as it makes its way through the Federal Court.

FILED UNDER: Law and the Courts, Quick Takes, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020.

Comments

  1. stonetools says:

    Looks like Pennsylvania may be the next SSM state-at least, so long as everyone’s favorite moderate Christie is around to block legislative change in New Jersey.
    Do any Pennsylvanians here know if there is a chance for a legislative SSM solution in Pennsylvania?

  2. Sam Malone says:

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

    Yes…
    Now lets see;
    Gay rights, Immigration reform, womens reporoductive rights, torture…nope…Republicans aren’treally so into freedom and bravery.

  3. Moosebreath says:

    @stonetools:

    “Do any Pennsylvanians here know if there is a chance for a legislative SSM solution in Pennsylvania?”

    The State Senate is 27-23 R, the General Assembly is 111-92 R. Maybe enough suburban Republicans can be found in the Senate to pass it, but no way in the GA. The best one can hope for is a repeat of this summer’s budget fight over expanding Medicaid, where the Senate included it to get a few D’s to support it, the GA refused and the Senate knuckled under.

  4. Moosebreath says:

    @Moosebreath:

    And BTW, there are very likely few seats available for the D’s to pick up in the 2014 elections. The Republicans did an excellent job of gerrymandering, at both the Congressional and State Legislature levels. Short of a massive D wave, I don’t see either house turning until the demographics change (which may be by the end of the decade, as PA has the 4th highest proportion of people 65 or older).

  5. stonetools says:

    @Moosebreath:

    Sigh. It’s not you. But I’m getting tired of hearing that we can’t expect to get sensible legislative solutions until 2020, at the earliest. Do people understand that 2020 is SEVEN FREAKING YEARS AWAY?
    So, anyway, for Pennsylvania it is the courts or nothing for a while, unless there is that Democratic wave all us liberals hope and work for.

  6. Jenos Idanian #13 says:

    So, will anyone be allowed to defend this law, or is this the new way to overturn a law? Just get the “right” people into the right offices, arrange for a court challenge, and then forfeit the fight?

  7. Moosebreath says:

    @stonetools:

    Not disagreeing, but in retrospect it is quite a shame that the Republican wave in 2010 coincided with the year that the legislature which had to deal with reapportionment after the census occurred. Had reapportionment occurred after the 2008 elections, we’d be looking at a far different future.

    And if the Wooden Horse of Troy had foals, horses would cost a lot less to feed.

  8. OzarkHillbilly says:

    But I’m getting tired of hearing that we can’t expect to get sensible legislative solutions until 2020, at the earliest.

    Me too, but here in MO it is absolutely true. The GOP is all but unable to win statewide office, but their gerrymandering was so thorough that they managed to get super majorities in both the State House and the State Senate. Proving once and for all that there is more than one way to disenfranchise voters.

  9. OzarkHillbilly says:

    @Jenos Idanian #13:

    Just get the “right” people into the right offices, arrange for a court challenge, and then forfeit the fight?

    Well, you could always work to get the other right people in office.

  10. stonetools says:

    @Jenos Idanian #13:

    I expect someone will be along to defend the “sanctity of traditional marriage” in Pennsylvania in due course.

  11. JWH says:

    Honestly, this makes me somewhat uncomfortable. I think that the executive should defend laws that were, well, lawfully passed and whose validity is an open question. I can understand if there is an adverse ruling at trial level and the executive chooses not to appeal. But I would think that executing the duties of the office includes at least trying to defend a defensible law.

  12. ernieyeball says:

    @stonetools: …2020 is SEVEN FREAKING YEARS AWAY?

    We will get Flying Cars first…Los Angeles 2019
    http://www.youtube.com/watch?v=L-qLglKXme8

  13. Moosebreath says:

    @JWH:

    As noted in the article, “State law says the attorney general is supposed to defend the constitutionality of Commonwealth laws, but also that the attorney general may allow lawyers for the governor’s office or executive branch agencies to defend a suit if that is more efficient or in the best interest of the state.” I have no doubt Gov. Corbett will defend this suit.

    I agree with you that this is a bad precedent, though.

  14. @stonetools:

    Do any Pennsylvanians here know if there is a chance for a legislative SSM solution in Pennsylvania?

    Are you kidding? Our legislature doesn’t even want to let them talk yet:

    ‘Archconservative’ state lawmaker prevents openly gay colleague from speaking because his comments would be ‘against God’s law’

  15. Tyrell says:

    Once again we have a law enforcement official, sworn to uphold a law, saying that they will ignore a law that was passed by the legislature. Since when did they get the right to do that? Will they give polygamists the same deference? Do we see lawsuits about this in the future?

  16. rudderpedals says:

    @Moosebreath: I agree with you that this is a bad precedent, though.

    But the AG shouldn’t be obligated to defend a bad law and she’d argue she has a duty to refrain from presenting a bad faith defense. The taxpayersxxx anti-SSM legislature and Gov are obviously more invested in the ban anyway.

  17. Craigo says:

    @Tyrell: Since the Commonwealth Attorneys Act explicitly gave her that right – 1980, to be exact.

  18. Barry says:

    @Jenos Idanian #13: “So, will anyone be allowed to defend this law, or is this the new way to overturn a law? Just get the “right” people into the right offices, arrange for a court challenge, and then forfeit the fight? ”

    Does it hurt to get something shoved up your *ss? If it’s good enough for the f-ing Tea Party, it’s good enough for us.

    After watching the past 12 years, I’ll take what I can get, and enjoy it more with the screams of defeated opponents.

  19. Jenos Idanian says:

    Oh, frabjous joy. Yet more arguments about how the ends justify the means. As long as the goal is good, whatever it takes to get there is just fine.

    But what a powerful precedent. PA has a pretty solid pro-life history. I can’t wait until a pro-lifer gets to be AG and uses this exact precedent to help strike down pro-choice laws. All that AG has to do is arrange for the laws to be challenged by some pro-lifers, then refuse to defend them.

    Or, perhaps, some gun control laws. Yeah, I like that one even better. The law that requires guns to be registered? Get the NRA to challenge it on 2nd Amendment grounds, refuse to defend the law, and bam! Down it goes.

    Why bother repealing a law, or amending it? Just get the AG on your side, and it’s dead.

  20. Moosebreath says:

    @Jenos Idanian:

    “Yet more arguments about how the ends justify the means. As long as the goal is good, whatever it takes to get there is just fine.”

    This is pretty rich coming from a died-in-the-wool supported of a party who believes in filibustering nominees for executive office that they have no objection to, just to keep the office from functioning. From a supporter of a party who engaged in mid-decade re-apportionment of congressional seats, just because they could. From a supporter of a party who holds votes on the floor open for hours longer than the 15 minutes allowed by law, just so they can perform arm-twisting and even threats against reluctant members of their party.

    Remove the beam from your own eyes first.

  21. Craigo says:

    @Jenos Idanian: You appear to be deeply confused about what is going on here. The law does not disappear because the AG declines to defend it.

    When it does disappear, it’s going to be because a court finds it in violation of Article 1, Section 26 of the PA Constitution, which forbids the Commonwealth to deny any person civil rights.

  22. Tyrell says:

    @Jenos Idanian: Watch for more governors and state legislators to say no and block federal regulations, court decisions, and “executive” orders from the president.