Pennsylvania A.G. won’t defend anti-gay law

Pennsylvania Attorney General Kathleen Kane (D)
Pennsylvania Attorney General Kathleen Kane (D)
Associated Press

On Tuesday, the ACLU filed an important lawsuit in Pennsylvania on behalf of 23 plaintiffs –10 gay couples, two children of one of the couples, and the surviving widow of a same-sex couple that was together for 29 years. The argument was simple: in light of the Supreme Court’s ruling on the Defense of Marriage Act, Pennsylvania’s ban on same-sex marriage should be struck down.

In theory, Pennsylvania’s state Attorney General, a named defendant in the case, would defend the existing law, but in this case, that’s not going to happen.

Pennsylvania Attorney General Kathleen Kane announced on Thursday that she could not ethically defend the state’s ban on gay marriage – and would not do so against a lawsuit filed by the American Civil Liberties Union.

“We are the land of the free and the home of the brave, and I want to start acting like that,” Kane told reporters during a raucous news conference at the National Constitution Center in Philadelphia. Dozens of supporters of same-sex marriage erupted into cheers and applause as she spoke.

As a practical matter, the decision from the Democratic A.G. does not mean the law will go without a defense, only that Kane wants nothing to do with providing that defense. Her decision will probably shift the burden to Gov. Tom Corbett (R).

If this seems familiar, there’s a good reason for that – the Obama administration similarly said it would not defend the federal DOMA law when it was challenged in the federal courts, causing congressional Republicans to choose to sponsor the defense of DOMA.

Of course, Kane is the first state A.G. to make this bold move in the wake of the high court ruling, but as more challenges to state anti-gay laws become more common, more Attorneys General will soon find themselves facing similar questions.

My colleague Laura Conaway, for example, noted that in Michigan, a state ban on gay marriage and adoptions by same-sex couples is also facing a legal challenge. Michigan Attorney General Bill Schuette (R) is defending the law, saying the state should be allowed to set its own rules defining marriage.