AG Kane will not defend commonwealth against same-sex marriage lawsuit

By Jon Campisi | Nov 29, 2014

Pennsylvania’s top law enforcer will not, well, enforce the law.

Only one specific law, actually. The one that says gay people can’t marry in the commonwealth.

During a visit to the National Constitution Center in Philadelphia on Thursday, state Attorney General Kathleen Kane announced that her office would not defend Pennsylvania’s Defense of Marriage Act in the case of Whitewood et al. vs. Corbett et al.

The civil action was filed in federal court earlier this week by the American Civil Liberties Union on behalf of gay and lesbian couples who contend the state’s ban on same-sex marriage violates their constitutional rights.

Kane is named as a codefendant in the suit, which also names Gov. Tom Corbett and others.

The plaintiffs hail from across the commonwealth.

“I cannot ethically defend the constitutionality of Pennsylvania’s version of DOMA where I believe it to be wholly unconstitutional,” Kane said in her prepared remarks.

The law prohibits same-sex marriage and also says that gay nuptials performed in states where the practice is legal are null and void in the Keystone State.

In her remarks, Kane conceded that while it is typically her duty to defend the state against such civil suits, under the Commonwealth Attorneys Act she also has the ability to defer certain cases to the Office of General Counsel, or Gov. Corbett’s legal team.

“Additionally, it is a lawyer’s ethical obligation under Pennsylvania’s Rules of Professional Conduct to withdraw from a case in which the lawyer has a fundamental disagreement with the client,” Kane noted.

After her visit to the City of Brotherly Love, Kane’s office released a statement in which the attorney general listed her problems with the state’s Defense of Marriage Act, which mirrors the federal statute recently struck down by the U.S. Supreme Court as unconstitutional.

Pennsylvania’s DOMA imposes a “disadvantage, a separate status, and a stigma on those who enter into same-sex marriages,” the law “wrongly denies same-sex couples the fundamental right to marry in Pennsylvania,” it has “no legitimate purpose other than to disparage and injure same-sex couples by placing them in a less respected position than others,” and the “discriminatory treatment explicitly authorized by DOMA violates both the US and Pennsylvania Constitution,” reads the AG’s Office’s news release.

In her statement, Kane called same-sex marriage a civil rights issue, and said that while she is sure many in the commonwealth would disagree with her position to pass the buck to the Office of General Counsel as far as defending against the litigation, she believes it is the right thing to do in the name of the constitution.

“We have always stood strong in the face of discrimination, which in its various forms has never withstood the test of time,” Kane stated. “It is our duty, each and every one of us, to protect the constitutionality, to protect the rights and dignity of others, and to protect the equality of all men and women in this Commonwealth.”

In a statement, James Schultz, Corbett’s general counsel, said the following: “We are 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. We have not received any formal notification of Attorney General Kane’s decision. While we await that notification and accompanying legal justification, we will continue to review the lawsuit filed by the ACLU.”

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