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Pa. Attorney General Kane's views on same-sex marriage ban fuel ACLU lawsuit

Pennsylvania Attorney General Kathleen Kane last year dismissed a case against former confidential informant, Tyron B. Ali, contending the investigation by her predecessors was legally flawed, tainted with racism, and inactive for nine months before she took office in January 2013.

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By Adam Smeltz
Friday, Aug. 9, 2013, 11:18 p.m.

Kathleen Kane's refusal to defend the Pennsylvania ban on same-sex marriage might not keep the new attorney general out of a pending state court fight over gay rights.

Instead, legal analysts say her public declarations calling the ban unconstitutional could help the American Civil Liberties Union's lawsuit against her, Gov. Tom Corbett and Health Secretary Michael Wolf to overturn the law.

“It's a statement by the highest official in the state who's charged with enforcing the law. That's not nothing,” said John G. Culhane, a law professor at Widener Law School in Wilmington, Del. He said ACLU attorneys could use Kane's assessment in larger arguments against gay marriage restrictions.

Former state Attorney General Ernie Preate went further, suggesting the ACLU “certainly” will use statements by Kane in litigating the case.

“They'd be fools not to raise it. She's the chief defendant of constitutionality of statutes by law, and she called it (the marriage ban) unconstitutional,” said Preate, a Scranton lawyer who was attorney general from 1989 to 1995. “I'd be waving her statement. I'd be calling her as a witness.”

Kane spokesman Joe Peters said she did not corrupt the case because her public statements did not delve into evidence or details. He said Kane was acting simply to educate the public in “a watershed event.”

“This is very different from commenting on trial specifics,” Peters said. He argued Kane's first oath is to defend the state and U.S. constitutions, and that “she can't defend something she doesn't believe is constitutional.”

Reached on Friday, ACLU senior staff attorney Mary Catherine Roper would not discuss case strategy or the legal nuances of Kane's position.

Still, “it's great to have a public official who stands up for fairness,” Roper said. “It means a lot to our clients personally and to the lawsuit generally that the top law enforcement official in the commonwealth thinks that we've got it right. That's a terrific boost, I think, for people in Pennsylvania.”

The ACLU joined a Philadelphia law firm — Hangley, Aronchick, Segal, Pudlin & Schiller — to sue state officials July 9 over the statute that defines marriage as a union of one man and one woman. The rule, on the books since 1996, also forbids recognition of same-sex marriages licensed in other states.

A June 26 decision by the U.S. Supreme Court undermines the prohibitions, according to the ACLU complaint filed on behalf of 23 plaintiffs. The ruling in United States v. Windsor rendered the federal Defense of Marriage Act unconstitutional. Five justices agreed that excluding same-sex couples from legal recognition at the federal level violates an equal protection guarantee in the U.S. Constitution.

Kane soon echoed the high court, announcing July 11 at the National Constitution Center in Philadelphia that she found the state gay marriage ban “wholly unconstitutional” and could not develop a defense in good conscience. The Defense of Marriage Act was almost identical to the law in Pennsylvania, Peters said.

She referred the state's defense against the ACLU to the Office of General Counsel under Corbett, an action she said is permitted under the Commonwealth Attorneys Act. The 1980 act allows attorneys general to refuse to defend state laws if a court has effectively repealed the regulations in question.

It also lets an attorney general shift a case to the general counsel if it's in “the best interest of the commonwealth.”

But legal observers are split over whether Kane was too extreme in denouncing the marriage law and whether the Supreme Court decision should apply to state-level rules. In a July 30 letter, General Counsel James D. Schultz wrote that Kane evaded her sworn duties and applied “her personal opinion” improperly.

Likewise, law professor Kermit Roosevelt said the high-court decision did not, in fact, strike down marriage limits at the state level.

“It's given us a decision that gives suggestions for the future, but is not controlling” for state law, said Roosevelt, a law professor at the University of Pennsylvania in Philadelphia.

Preate said Kane also went too far in calling a state statute unconstitutional. Lawyers generally should not make public statements that could prejudice the handling of a case, according to professional conduct rules.

“I don't know what's going to happen,” said Preate, who noted that Kane remains a listed defendant in the ACLU case. “I've never seen this happen before.”

A conference in the ACLU case is scheduled for Sept. 30 in Harrisburg, where the matter is pending before U.S. District Judge John E. Jones III.

Adam Smeltz is a staff writer for Trib Total Media. He can be reached at 412-380-5676 or

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