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Pennsylvania attorney general won't defend gay marriage ban

| Thursday, July 11, 2013, 12:29 p.m.
State Attorney Gen. Kathleen Kane announced on Thursday, July 11, 2013, in the National Constitution Center that she will not defend Pennsylvania’s law effectively banning same-sex marriage against a legal challenge in federal court, meaning the task will be left up to Gov. Tom Corbett.

HARRISBURG — Attorney General Kathleen Kane's refusal to defend a 1996 state law banning same-sex marriage touched off debate on Thursday about when it is legal and proper for the state's top lawyer to decline to represent the commonwealth.

Kane, a Democrat, and Republican Gov. Tom Corbett are defendants in a lawsuit filed this week by the American Civil Liberties Union asking a federal judge to strike down the law and prevent state officials from blocking gay and lesbian marriages. Under the law, Pennsylvania does not recognize legal same-sex marriages from other states.

“I cannot ethically defend the constitutionality of Pennsylvania's (law), where I believe it to be wholly unconstitutional,” Kane told reporters in Philadelphia.

Kane, who supports same-sex marriage, said she will leave the job to Corbett, who opposes it.

Corbett's general counsel, James D. Schultz, said Kane did not notify the governor's office of her decision.

“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,” Schultz said.

Though gay rights advocates praised her stance, critics questioned it.

Gary Van Horn, president of the board of directors for Delta Foundation of Pittsburgh, a leading gay rights organization, called it “a huge development” for lesbians, gays, bisexuals and transgender individuals.

“We are one step closer to finally being treated as equal citizens and will anxiously await word from our governor on his plans,” he said.

Robert Gleason, chairman of the Pennsylvania Republican Party, said Kane's decision “leaves a gaping doubt in her ability to fairly execute her job.”

“The people of Pennsylvania elect citizens to carry out constitutional responsibilities based on the tradition that no one is above the law,” Gleason said, adding that it's unacceptable for Kane “to put her personal politics ahead of her taxpayer-funded job by abdicating her responsibilities.”

Democratic Party Chairman Jim Burn of Millvale fired back that Kane is “taking a courageous and firm stand against a law with little merit.”

Pennsylvania law stipulates it is the attorney general's duty to defend the constitutionality of state laws but says the attorney general can allow lawyers for the governor's office or executive-branch agencies to defend a lawsuit if it is more efficient or in the state's best interests.

Kane told reporters that she “chooses to protect all those without high-priced lawyers, all those who suffer discrimination and inequality, those thousands of families who have been denied the dignity and respect that the Constitution protects and guarantees in marriage equality. Today we represent everyone who does not have representation.”

Kane can say she won't defend the case, but she remains a defendant in the lawsuit regardless, said former Attorney General Ernie Preate, who's from Kane's hometown of Scranton.

Still a practicing attorney, Preate, who resigned amid scandal in 1995, said: “You're a named defendant telling the court (the statute) is unconstitutional? How does she get out of the case? As a named defendant, she needs to be there (in court) or get permission from the court to withdraw.”

Tom Baldino, a political science professor at Wilkes University in Wilkes-Barre, said Kane's position could help her popularity with urban voters and younger people in a Democratic primary, perhaps “down the road” if she were to run for governor. Kane is not considered a likely candidate against Corbett in 2014.

“It is her job as attorney general to defend laws that the Legislature has passed,” said state Rep. Daryl Metcalfe, R-Cranberry, who opposes legalizing same-sex marriages. Metcalfe believes Kane doesn't have a choice. He raised the possibility of impeachment.

The 1981 Commonwealth Attorneys Act, which established an independent attorney general, 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 the court of competent jurisdiction.”

Walter Cohen, a former acting attorney general, said the attorney general can delegate cases to the governor or agency lawyers. It is not unusual for attorneys general to do so, Cohen said.

That's more often done with lawsuits against the commonwealth or agencies and not with specific challenges to the constitutionality of a statute, said former Attorney General Jerry Pappert.

“It is unusual in my experience ... for an attorney general to not do so, based on his or her personal beliefs that a statute is unconstitutional,” he said.

The ACLU said its lawsuit is the first known legal challenge seeking to overturn a state law effectively banning same-sex marriages. The law, signed by former Republican Gov. Tom Ridge, defines marriage as a union between one man and one woman.

Mark Aronchick, a Philadelphia attorney who is co-counsel with the ACLU in Whitewood v. Corbett, said Kane “should be applauded for taking such a strong, principled stand in favor of the freedom to marry. Pennsylvanians should be proud that their highest law enforcement official is standing up for their rights.”

The Associated Press contributed to this report. Brad Bumsted is Trib Total Media's state Capitol reporter. He can be reached at 717-787-1405 or bbumsted@tribweb.com.

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