Pennsylvania Attorney General Kathleen Kane made the right legal and ethical decision not to defend Pennsylvania's Defense of Marriage Act (DOMA).
Critics who say Attorney General Kane made her decision based on politics, rather than law, are just flat-out wrong. Both the Commonwealth Attorneys Act, which provides for the roles and responsibilities of the attorney general, and the state Rules of Professional Conduct make it clear that Kane had a responsibility to decline to defend DOMA.
Kane's critics say the attorney general cannot issue opinions on constitutionality but the Commonwealth Attorneys Act specifically allows the attorney general to provide her legal opinion on the constitutionality of legislation. And Kane rightly made the determination that our DOMA law is unconstitutional.
Given her legal opinion that DOMA is unconstitutional, Kane had the ethical responsibility, under the Rules of Professional Conduct, to decline to represent the commonwealth in defending it.
I'll also note that Rule 1.16 of the Rules of Professional Conduct states that “a lawyer may withdraw from representing a client if … the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.”
The law is on the side of Attorney General Kane. And, perhaps more importantly, she is on the right side of history.
The writer, an attorney, represents the 33rd State House District and is the House Democratic Leader.
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