Same-sex marriage ban ‘wholly unconstitutional,’ Pa. attorney general says

Gail Lloyd, left, and her partner of 17 years Angela Gillem react to an announcement by Pennsylvania Attorney Gen. Kathleen Kane during a news conference at...
Gail Lloyd, left, and her partner of 17 years Angela Gillem react to an announcement by Pennsylvania Attorney Gen. Kathleen Kane during a news conference at...
Matt Rourke/AP

Two days after a lawsuit challenging Pennsylvania’s ban on same-sex marriage was filed, the state’s chief law enforcement officer flatly refused to defend it, passing off that responsibility to the governor’s office.

Pennsylvania Attorney General Kathleen Kane said it was her “ethical obligation” as a lawyer to withdraw from the case—the first federal lawsuit since the Supreme Court dismantled the Defense of Marriage Act (DOMA)— given her ”fundamental disagreement” with state’s ban against same-sex marriage.

“I cannot ethically defend the constitutionality of Pennsylvania’s version of DOMA where I believe it to be wholly unconstitutional,” Kane, a Democrat, said at the National Constitution Center in Philadelphia on Thursday.

The suit was filed Tuesday by the American Civil Liberties Union, the ACLU of Pennsylvania, and outside volunteer counsel on behalf of 23 plaintiffs who contend the law violates the fundamental right to marry, as well as the Equal Protection Clause of the Fourteenth Amendment.

Speaking to reporters on Thursday, Kane said that Pennsylvania’s DOMA—enacted in 1996, the same year as the federal version—imposes a separate status and stigma on same-sex couples who wish to marry. Like the now-defunct federal law, Pennsylvania’s DOMA defines marriage as a union between one man and one woman, and prevents the state government from recognizing same-sex marriages performed where they are legal. The Keystone State is one of 35 that prohibits same-sex marriage through a constitutional or statutory provision.

Kane argued that the law had no legitimate purpose other than to disparage same-sex couples, and as such violated both the U.S. and Pennsylvania constitutions.

“I know that in this state, there are people who don’t believe in what we are doing, and I’m not asking them to believe in it,” said Kane. “I’m asking them to believe in the constitution.”

The ACLU of Pennsylvania’s Executive Director Reggie Shuford applauded Kane’s actions, saying in a statement that he was “pleased” with the attorney general for recognizing “what we have long known—that Pennsylvania’s ban on marriage for same-sex couples is indefensible.”

Conservatives were less enthused. Rob Gleason, chairman of the Pennsylvania Republican Party, said in a statement that it was “unacceptable for Attorney General Kathleen Kane to put her personal politics ahead of her taxpayer-funded job by abdicating her responsibilities.”

Kane defended herself in an interview with the Washington Post, however, saying that Pennsylvania general counsel, James D. Schultz, who was also named as a defendant in the lawsuit, was fully capable of the defending the state. “I’m not leaving them high and dry,” she said. “They have their own team.”

Still, Kane’s actions do put the state’s Republican Gov. Tom Corbett in a tight spot politically. Recent poll numbers show both rising support among Pennsylvanians for same-sex marriage, and tanking ratings for Corbett, who next year could become the first governor to lose re-election in Pennsylvania history.

If Corbett chooses to defend the ban, which he’s supported in the past, he risks angering the growing percentage of his constituency in favor of marriage equality. But if he too backs down from the fight, he will be letting down a bulk of his Republican base.

Schultz said in a statement Thursday that Corbett’s office “will continue to review the lawsuit.”

Kane’s decision to stand down comes amid a tide of similar forfeitures, as state challenges continue to spread. Attorneys general in Illinois and California had also declined to defend their states’ marriage laws. And under the direction of President Obama, the Justice Department this year withdrew its defense of DOMA for the first time in 15 years.