Experts: Gay marriage ruling cripples Metcalfe's efforts to oust Kane

Brad Bumsted
| Saturday, May 31, 2014, 10:40 p.m.

HARRISBURG — A federal judge's ruling overturning Pennsylvania's gay marriage ban effectively cripples a conservative House member's proposal to impeach state Attorney General Kathleen Kane for refusing to defend the law, political experts say.

When Rep. Daryl Metcalfe, a Cranberry Republican, authored a resolution to impeach Kane last fall, he based it on the allegation that she refused to do her duty and defend the constitutionality of the 1996 law.

Kane said the law was unconstitutional and that she could not, in good conscience, defend it. She referred it to Republican Gov. Tom Corbett's Office of General Counsel.

U.S. District Judge John E. Jones III, a Republican appointed by President George W. Bush, ruled in May that the state law is unconstitutional because it violates due process and equal protection provisions of the U.S. Constitution.

“Practically speaking, that bursts his bubble, doesn't it? That's a huge blow if you're Daryl Metcalfe,” said Colleen Sheehan, a former Republican House member who teaches politics at Villanova University. She did not serve with Metcalfe.

The rule “completely undercuts his effort,” said Bev Cigler, who teaches state government at Penn State University's Harrisburg campus. “Kane is independently elected, and she can make the decision. That's her prerogative.”

Metcalfe, considered one of the most conservative members of the General Assembly, insists that Jones' ruling “doesn't validate” Kane's position. She failed to comply with the Commonwealth Attorney's Act and represent the state in a constitutional challenge by the American Civil Liberties Union, he said.

He believes the issue is not decided, because the U.S. Supreme Court could weigh in on cases pending in federal or appeals courts elsewhere in the country.

Kane, the first Democrat and first woman elected as the state's top law enforcement officer, is one of seven attorneys general who refused to defend laws banning gay marriage. She could not be reached but has argued that the law gives her discretion.

A campaign issue?

To social conservatives, Metcalfe offers “an important voice,” said J. Wesley Leckrone, a political science professor at Widener University.

Though the impeachment idea was derailed, Leckrone does not discount the possibility that it will be revved up to “embarrass Democrats” before the November election, which Metcalfe has denied.

Metcalfe, who was elected in 1998, is seeking his ninth term. He won the GOP nomination on May 20, but 44 percent of the vote went to write-in candidate Gordon Marburger. Metcalfe blames that on unions trying to oust him.

Metcalfe, who chairs the House State Government Committee, held a hearing on his resolution last month, inviting only supporters to testify. He did not invite Kane, and Democrats refused to participate.

Rep. Mark Cohen of Philadelphia, the ranking Democrat, said lawmakers should reserve impeachment for wrongdoing, not policy disagreements.

Metcalfe won't rule out more hearings.

“The gay marriage issue is very important to social conservatives, so holding further hearings would keep this issue alive going into the fall campaign,” Leckrone said.

Corbett, who supports marriage only between a man and a woman, declined to appeal Jones' ruling.

“Someone should ask (Metcalfe) whether he'll impeach Corbett now,” said Cigler of Penn State.

Though “lacking the courage” to continue the case, Corbett was not obligated by law to appeal, Metcalfe said.

“Gov. Corbett faced this difficult decision with courage and based on his review of the facts,” said spokeswoman Lynn Lawson.

Even longer odds

Even in a Republican-controlled House, analysts considered Metcalfe's resolution a long shot.

Now the odds are even longer, barring developments in a criminal case Kane declined to prosecute despite video and audio recordings of four Philadelphia Democratic legislators accepting a total of $16,650 from an undercover informant, analysts said.

Metcalfe added the so-called legislative sting case, which became public in March, to his resolution, along with an Article of Impeachment for promoting her twin sister, something Kane said her top aide handled. Her sister, Ellen Granahan, worked for the Attorney General's Office before Kane's election.

The sting potentially “has legs” that could keep Metcalfe's effort moving, Sheehan said.

Kane gave the case file to Philadelphia District Attorney Seth Williams at his request to decide whether to prosecute the lawmakers. She said the case was legally flawed.

One witness at Metcalfe's hearing, Westmoreland County native J. Christian Adams, limited his comments to the sting, saying Kane needed to “take action against criminal behavior, not excuse it.”

Adams, who is on the policy board of the American Civil Rights Union, said he did not mention the same-sex marriage issue because it is not his area of expertise.

“I can tell you, when the attorney general refused to appear in court and defend a law, it became more likely that the law would be overturned,” he said.

Kane's refusal to prosecute the sting is “outrageous on so many levels. At a minimum, she ought to do something to get the money back,” Adams said.

Tom Baldino, acting dean of humanities at Wilkes University, said it could hurt Kane politically if Williams successfully prosecutes the case. However, if Williams determines he cannot prosecute, or if he tries the case and loses, “her judgment is upheld,” Baldino said.

Brad Bumsted is Trib Total Media's state Capitol reporter. Reach him at 717-787-1405 or

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