Gay Marriage

Shades of Prop. 8? Pa. AG Refuses to Defend Ban on Gay Marriage Recognition

The governor's office may step in, though, avoiding another possible fight about standing


Pa. Attorney General Kathleen Kane
Credit: Pa. Attorney General's Office

The ACLU Tuesday announced lawsuits targeting gay marriage recognition bans in three states – Pennsylvania, North Carolina and Virginia. The focus on the Pennsylvania case is partly connected to the recent Supreme Court ruling on the Defense of Marriage Act, which determined that the federal government cannot refuse to recognize same sex marriages in states where it has been declared legal. Now they're trying to get courts to rule that states cannot refuse to recognize gay marriages from other states where it's legal.

Today, Pennsylvania Attorney General Kathleen Kane announced her office will refuse to defend the state's ban on recognizing gay marriage, which has been in place since 1996. The Associated Press reports:

"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.

While this may look similar to what happened with California's Proposition 8, there's one big difference. The governor of Pennsylvania, Tom Corbett, is a Republican who opposes same-sex marriage. He didn't comment to the Associated Press, but he could take on the responsibility to defend the law. In California, there was no defense from the state in any respect, leaving the ballot initiative proponents to represent it in court.

If Corbett's office does decide to defend the law, there will likely be little conflict with the recent Supreme Court ruling on Proposition 8. That suit was punted back in the state because the majority ruled that the proponents of a ballot initiative did not have standing. They were not recognized state officials responsible for the creation or enforcement of the law and they could not show any direct harm from the law. The governor's office here would obviously fit the first category of standing.

It also means, if Corbett's office does defend the law, gay marriage recognition could end up back in front of the Supreme Court for a determination whether states can refuse to acknowledge gay marriages recognized in other states. Based on the United States v. Windsor ruling striking down part of the Defense of Marriage Act and the way Justice Anthony Kennedy wrote the ruling (read Jacob Sullum's analysis of the confusing logic here), it's not a leap to see this court also ruling that states also cannot refuse to honor these contracts.

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  1. it’s not a leap to see this court also ruling that states also cannot refuse to honor these contracts.

    A state-issued license is not a contract, you know.

    1. I consider a marriage license to automatically come with a boilerplate contract– in a community property state, that is.

      It’s certainly an implicit contract which essentially says:

      Either signatory may dissolve the partnership with no limitations, on demand, and receive half the value of the estate including but not limited to real property, cash and responsibility of debt(s).

    2. It seems like a contract between the couple and the state.

      1. The couple agrees to love and obey the state, for better or worse, for richer or poorer, in sickness or in health. Then the suprise sex begins.

      2. ^^ THIS

  2. “I cannot ethically defend the constitutionality of Pennsylvania’s (law banning same-sex marriage), where I believe it to be wholly unconstitutional,”

    That’s too bad cupcake, it’s your fucking job to defend the shitty laws of your shitty state.

    Just like it was the AG of California’s job.

    1. But on the other hand would you really want her to just phone it in and do a shitty job?

      I was unhappy with SCOTUS for dismissing the Prop 8 case on lack of standing because if the AG won’t defend it then someone should be allowed to. Just have the state designate someone as acting in an official capacity.

      1. That is what California *tried* to do, but the USSC said they didn’t do it right.

      2. Agreed. I wasn’t a fan of prop. 8, but I’m also not a fan of people banging the judicial activism drum for the rest of time. It would’ve been better to have it actively defended and struck down (or upheld, but repealed later) and have it be over with. Harris would have never defended it aggressively enough to satisfy critics.

      3. Is there any reason why the state can’t simply hire an outside firm to defend the statute, and then leave them to it? California tried to use a contract to transfer its standing in the case to a third party, which didn’t fly, because standing can’t be transferred – either you have a tangible interest in the case or you don’t. But if they’d just hired the same attorneys as the Prop 8 defenders and then got out of their way, the case would have proceeded the same but standing wouldn’t have been an issue.

        1. So I have to pay the AG’s salary and and subcontractor’s fee?

    2. Thousands of un- and under-employed attorneys in the state to take her job. Hit the bricks, ho.

    3. That’s too bad cupcake, it’s your fucking job to defend the shitty laws of your shitty state.

      Just like it was the AG of California’s job.

      As a general rule, public servents who refuse to enforce/defend laws are usually in the right.

      If I was governor of california i’d pardon all drug criminals, even though my shitty state passed laws to put them in jail.

      If I was the AG I’d issue orders to all assistant DAs to never prosecute drug violations, even though my shitty state passed shitty laws about drugs.

      I wouldn’t have rounded up the Japanese in California either.

      1. As a general rule, public servents who refuse to enforce/defend laws are usually in the right.

        Jim Crow era DA’s throughout the South, that refused to prosecute crimes against blacks, Heartily agree with this statement.

        1. But ends always justify means!

    4. I cannot ethically defend the constitutionality of Utah’s (law banning polygamy), where I believe it to be wholly unconstititutional,”

      Yea, when I see people say this I’ll take the gay marriage thing as an equality fight and not just the cool thing to fight about this decade.

    5. “I cannot ethically defend…”

      Oh, ok. So we’re safe in reading this as a personal endorsement of every other law in every other case that’s ever come before her.

      I imagine a review of all those cases would reveal that AG Kane operates under a very complex and nuanced set of “ethics”.

  3. This is a sort of worrying piece of fallout from the SC ruling. While I very much applaud the outcome, it seems like it just sets up for all sorts of political kabuki where elected officials can simply ignore laws passed by predecessors or (more importantly) by initiative petition to the people if they think said laws are unconstitutional. It gets even messier if, as here, you have an AG and a governor at odds politically.

    In the Prop 8 case basically California was able to throw out a duly-passed state constitutional change by simply refusing to defend it officially. Again, I like the outcome, but IIRC one of the Iron Laws said something about “Me Today, You Tomorrow.” I presume at some point the same tactic will be used to ignore something we do care about (for example, the politicians here in Mass ignoring the many passed initiatives to lower the tax rate).

    1. Yup, and in AZ our lovely Jan Brewer is refusing to defend the medical MJ proposition, despite the fact that it’s passed no less than three times in our state and been overruled variously by the legislature, the executive, and the judiciary.

      1. Not just failing to defend – she’s actively trying to undercut it.

        1. Ugh. She really is loathesome.

    2. I wonder if the court would consider having to pay a higher tax rate than you voted for a “harm” in order to grant standing?

      I’m concerned about ballot initiatives that don’t involve money or rights but do involve our control over the process of how we are governed, like term limits for example. Or supermajority rules for tax increases.

    3. Wonder how this would be viewed if it was a 2A law instead? My guess is the arguments would be reversed as the progs wail and moan about process and activism.

  4. The a member of the political class just deciding on their own what duly enacted laws they will defend? There’s no way this undermines this type of action undermines the rule of law in favor of the rule of man. Republicanism is largey dependent on the leaders obeying the rituals of law, once they get the idea they can safely ignore those responsibilities, the structure does not work anymore.

    1. It’s another parallel between us and the Roman Republic’s slide to tyranny.

  5. This case basically comes down to predicting the vote of Justice Kennedy (unless the Supremes get new personnel) – there’s four justices against SSM, four in favor, and Kennedy wanting to play the Heroic, Chin-Stroking Moderate.

    Hard to tell how this would come out. Depends on what Kennedy had for breakfast.

    1. I would think Kennedy is actually a ‘for” but he’s scared to actually do it, hence his incoherent opinion on DOMA.

  6. Today, Pennsylvania Attorney General Kathleen Kane announced her office will refuse to defend the state’s ban on recognizing gay marriage, which has been in place since 1996.

    Maybe it’s the alcohol and drugs in my system (or being overworked) but she looks gorgeous enough to me not to care what she does.

    1. you didn’t have to put up with the campaign commercials. her voice, nails on chalkboard with a mothers condescension.

  7. Would she defend the right of a man to have intimate relations with pool rafts? What if he’s born that way, you know?

  8. More important than any legal precedents set is the fact that history has already made its judgment on this issue, and those who held out in favor of obstructing this civil rights progress will be remembered as poorly as their predecessors in the racial and gender civil rights movements.

    1. Presumably history has ended? The last guy to make that claim is now universal point and laugh material.

  9. Commonwealth Attorneys Act:

    (3) 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 a court of competent jurisdiction


    The Attorney General may, upon determining that it is more efficient or otherwise is in the best interest of the Commonwealth, authorize the General Counsel or the counsel for an independent agency to initiate, conduct or defend any particular litigation or category of litigation in his stead.

    Translated: It’s her duty to do this, but she can weasel out.

    She’s the most liberal, by far, of any statewide elected official in PA. I’m really surprised we elected her. It was a big Obama turnout in Philly that did it for her. We usually elect moderates, D or R, for statewide office.

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  11. The whole “I’m going to choose what laws I like” position that apparently is all the rage today from Obama to this chick is not a good thing for the legitimacy of our country’s legal system.

    Laws must be followed. If they suck, then the legislature or properly passed initiatives need to step in and make things right. However, jumping over that process is dangerous to liberty.

    It is also concerning that the SCOTUS has undercut the standing of citizens to stand for an initiative that was legally passed in their state.

    Both of these factors are harmful to the rule of law. I could give two shits about the GM issue, just get it done the right way and not via a shortcut that is going to fuck us all in the long run.

    1. …just get it done the right way and not via a shortcut that is going to fuck us all in the long run.

      Well normally you wouldn’t get much argument around these parts with that logic, but you see, gay marriage is the most important civil rights issue since Malcolm X freed all the slaves, so we’re all obligated as good libertarians to support this result whatever the procedure.

      Besides, you’ve got nothing to worry about, because the young people totally dig pot, porn, and teh gayz, so it’s not like we’ll ever have to worry about government overreach in the future. Most libertarian generation evah!

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