Equality On Trial

Updated: Pennsylvania attorney general will not defend state’s marriage equality ban

July 11, 2013

By Jacob Combs

Marriage equality Marriage Equality Trials

By Jacob Combs

Updated (3:35 p.m. Eastern): Attorney General Kane announced today in a press conference that she would not be defending Pennsylvania’s marriage laws.

“I cannot ethically defend the constitutionality of Pennsylvania’s (law banning same-sex marriage), where I believe it to be wholly unconstitutional,” she said to reporters during a press conference in Philadelphia, the Associated Press reports.

In a follow-up statement to the media, obtained by the Washington Blade, Pennsylvania General Counsel James D. Schultz said, “We are surprised that the Attorney General, contrary to her constitutional duty under the Commonwealth Attorneys Act, has decided not to defend a Pennsylvania statute lawfully enacted by the General Assembly, merely because of her personal beliefs.”

Original post (11:00 a.m. Eastern): Citing multiple sources, the Philadelphia Daily News reports that Pennsylvania Attorney General Kathleen Kane will announce today that she will not defend the state’s marriage equality ban in a case brought in federal court by the ACLU.

The Washington Post confirmed the Daily News‘s reporting, noting that lawyers involved in the case who were aware of Kane’s plans asked to speak off the record since she had not yet made a public announcement.

We reported yesterday on the announcement of the Pennsylvania lawsuit, which will join two other ACLU challenges in federal courts in North Carolina and Virginia:

In the Pennsylvania case, Whitewood v. Corbett, the plaintiffs allege that Pennsylvania’s marriage equality ban violates both the due process and equal protection rights in the U.S. Constitution’s Fourteenth Amendment.  The complaint alleges that the law should be considered under heightened scrutiny “because it burdens the fundamental right to marry and because it discriminates based on sex and sexual orientation.”

Kane is one of five named defendants in the Whitewood complaint; one of the others is Republican governor Tom Corbett, who will likely defend the law even if Kane decides not to.  The AP noted yesterday after the filing of the lawsuit that Pennsylvania law allows the attorney general to leave the defense of the statute to the lawyers for the governor or other governmental agencies “if it’s more efficient or in the state’s best interest.”

Of course, a major point of contention in the most recent high-profile marriage equality case–the Prop 8 case–was the decision of California officials not to defend the states equal marriage ban.  The ballot initiative’s proponents stepped in to defend the statute in court, but were eventually deemed unfit to do so by the U.S. Supreme Court.  Given Corbett’s likely involvement, a similar outcome in the Whitewood case looks implausible.

Kathleen Kane isn’t the only attorney general–besides California’s Jerry Brown and Kamala Harris in the Prop 8 case–to decline to defend a marriage equality ban in court.  Last year, Illinois Attorney General Lisa Madigan announced that she would not defend her own state’s lack of marriage equality in two state court cases, one of which was also brought by the ACLU.

We’ll have updates on Kane’s announcement when it occurs later today.

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