PHILADELPHIA (AP) - Pennsylvania's elected attorney general said Thursday that she will not defend the state law effectively banning same-sex marriage from a legal challenge in federal court, meaning the task will be left up to Gov. Tom Corbett.

"I cannot ethically defend the constitutionality of Pennsylvania's (law banning same-sex marriage), where I believe it to be wholly unconstitutional," Kathleen Kane announced to reporters at the National Constitution Center in Philadelphia on Thursday.

Under Pennsylvania law, it is the attorney general's duty to defend the constitutionality of state laws. But the law also says the attorney general may 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, a Democrat who supports same-sex marriage, said she will leave the job to Corbett, a Republican who opposes same-sex marriage. Both were named in a lawsuit filed in federal court Tuesday seeking to overturn the law and legalize same-sex marriage in Pennsylvania.

Corbett's office has declined to comment on the lawsuit.

Pennsylvania is the only northeastern state that does not allow same-sex marriage or civil unions.

A 1996 state law defines marriage as a civil contract in which a man and a woman take each other as husband and wife. The state also does not allow civil unions or recognize same-sex marriages from other states that allow it.

The plaintiffs in the lawsuit are a widow, 10 couples and one of the couples' two teenage daughters. The group includes four couples who were legally married in other states but whose marriages go unrecognized by Pennsylvania.

Same-sex marriage is legal or soon will be in 13 states. The lawsuit asks a federal judge to prevent state officials from stopping gay couples from getting married and to force the state to recognize the marriages of same-sex couples who wed in other jurisdictions.

Lawyers in the case believe it is ultimately bound for the U.S. Supreme Court, probably along with similar cases in other states, and could force the high court to rule on the core question of whether it is unconstitutional to deny same-sex couples the right to marry.


Posted earlier on Cumberlink:

HARRISBURG - The elected official tasked with defending state laws supports same-sex marriage, but now she faces a decision about whether to defend a law that bans it.

State Attorney General Kathleen Kane, the first Democrat to be elected to that position, was scheduled to talk to reporters Thursday at the National Constitution Center in Philadelphia. So far, she has been silent on the first known legal challenge seeking to overturn a 17-year-old law effectively banning same-sex marriage in Pennsylvania, the only northeastern state that doesn't allow it or civil unions.

The lawsuit, filed Tuesday in federal court in Harrisburg, seeks to make Pennsylvania the 14th state to allow same-sex marriage by asking a federal judge to prevent state officials from stopping gay couples from getting married. Lawyers in the case believe it is ultimately bound for the U.S. Supreme Court, probably along with similar cases that are cropping up in other states, and could force the high court to rule on the core question of whether it is unconstitutional to deny same-sex couples the right to marry.

The lawsuit names as defendants Gov. Tom Corbett, a Republican who opposes gay marriage, and Kane, who said during her campaign last year that she believes gay couples should be able to marry.

Pennsylvania law says it is the attorney general's duty to defend the constitutionality of state laws. But it also says the attorney general may 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.

That means Corbett could end up defending the law in Pennsylvania, where polls show the public is increasingly accepting of the concept of same-sex marriage. Corbett's office declined to comment Wednesday on whether he will defend the law.

Corbett, who faces a run for re-election next year with weak job approval polling numbers, will be in a tricky political situation, said Christopher Borick, a pollster and political science professor at Muhlenberg College in Allentown.

"Being forced to fight for a state policy that is going counter to a majority of what Pennsylvanians think is not necessarily the place you want to be in an election year," Borick said.

However, not defending the law could hurt Corbett's standing among members of his Republican base, the majority of whom oppose same-sex marriage. Those who vote in a midterm election, like 2014, are likely to be older, more conservative and more divided on the issue, Borick said.

The case was assigned to U.S. District Judge John E. Jones III, a Republican and an appointee of former President George W. Bush who is perhaps best known for his handling of one of the biggest courtroom clashes between faith and evolution since the 1925 Scopes Monkey Trial.

In that 2005 decision, Jones barred the Dover Area School District in southern Pennsylvania from teaching "intelligent design" in biology class and said its first-in-the-nation decision to insert it into the science curriculum violated the constitutional separation of church and state. He called it "a religious view, a mere re-labeling of creationism, and not a scientific theory."

The American Civil Liberties Union helped argue the case against Dover, and it is co-counsel in the lawsuit seeking to overturn a 1996 state law that defines marriage as a civil contract in which a man and a woman take each other as husband and wife.

(11) comments

bcliff

Per the recent SCOTUS opinion,know no one has the ability to appeal this soon to be decision. What's good about that?

michael

Not surprising. We have an executive branch at the federal level that decides which laws it will or will not uphold. I could be wrong, but that is seems like lawlessness. And it is no better than a despot or monarchy. So Ms Kane is doingg what the party wants, and isfollowing marching orders. Only thing missing is the brown shirts, or red coats. Ms Kane should resign, if her job does not agree with her "morals". Can I decide which laws I will or will not obey?

RaySampsin

Funny michael, you can have your opinions but she can't follow her beliefs? I'd rather have a government official who isn't a mindless puppet. And please, pick up a dictionary or use spelling/grammar check. Doingg? Ms? isfollowing? You certainly decide which grammar and spelling rules you care to follow. :-)

Ben D

allowing gays to marry is fine by me. my problem is with the AG not willing to defend the constitution of this state. with that display of leadership I guess police if they don't agree with the laws they are bound to enforce can just over look them. government either local, state or federal is so jacked up they forget who they are here to serve.........themselves? nope, who might it be?

tmm336
tmm336

Ben D I like the comparison to cops.
It is playing by the instructions (Constitution) that allows our form of gov’t to survive. The Fed Executive Branch is “willfully ignorant” obstinate & and has disregard to rules. A leaching of this brazenness to state Dems- ie Kane is occuring. The attitude of you can't touch me is clear

The Balance of Power is off in the 3 brances of federal gov't. No checks & Balance. Like Michael said isn't this lawlessness. It will increase if we don't restore balance

tmm336
tmm336

Govt actions are changed 2 main ways: making laws (Legislative Branch) or lawsuits (Judicial Branch). In this case the quickest way is a lawsuit while other supporters work on passing legislation aspect.
Overturning DOMA (1/2 approach) while upholding State's Rights set the stage for years of chaos, uncertainity, & a plethora of lawsuits. Justice Scalia’s conscience was comforted yet did he do the duties of the Supreme Court or what he wished was so and the right thing to do.

CarlisleGirl

Remember what happened in Nazi Germany, when high-ranking officials just went along, with disastrous inhumane results. Then they used that stance as a defense. I admire Ms. Kane's willingness to take the stand she has, especially when her action has not stopped it cold, but simply shifted the task over to the Governor. She has shown courage and leadership.

michael

Ok, lets play the list for me all the inhumane things that happen to gays who can't marry. Nobody is being put in prison camp and no mass murders are being committed. What if the military decides that the president isn't doing what the generals see fit? Would you like to live in a land where individuals on a one by one basis can decide whether or not they obey the law? What if I decided your dog came into my yard and I tell you it is now my property?
This is no different, lawless society.

Ben D

Carlislegirl, take a look at what her job requires her to do. So what your telling all of us is if you don't agree with something then you shouldn't have to do it? I hope your job does not require you to ever do anything that your boss wants you to do that you don't agree with. If she would have said, I don't agree with the law but I am bound to defend it. I would have more respect, but to just say the Gov. can defend it. That's crap.

RaySampsin

CarlisleGirl, you're so right. She hasn't damned the issue, but she's following her beliefs. More people should do that rather than blindly following a religion or a government.

tmm336
tmm336

I personally would have rather had AG Kane select someone else to defend the case if see didn’t want to do it herself. I don’t want the Conservative Governor Corbett selecting the attorneys who will be defending the lawsuit.

I want an unbiased neutral 3rd party who can rise above their personal views. In my dream world I’d like to see a “jury style” selection process for deciding on the defense attorneys that will be used to defend the state in these types lawsuit(s). Please forgive grammar

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