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.