Pa. AG defends refusing to defend same-sex marriage case

Attorney General Kathleen Kane insists she is not violating her oath of office in deciding not to defend Pennsylvania’s marriage law.

Kane announced last week that she would not represent Governor Tom Corbett and other state officials who are being sued by the American Civil Liberties Union in an effort to legalize same-sex marriage in Pennsylvania.  Speaking on WHYY’s Radio Times, Kane said she thinks a ban on homosexual marriages is unconstitutional and discriminatory.

The suit on behalf of 23 Pennsylvania residents comes after the U.S. Supreme Court struck down the federal Defense of Marriage Act, often called DOMA, last month.

Pennsylvania’s own “mini-DOMA” remains on the books. That law defines marriage as a civil contract between a man and a woman and recognizes neither civil unions nor same-sex marriages from other states.

The Attorney General said that her duty to protect the state and United States Constitutions as well as her duty to enforce state laws supersedes her oath to represent the Governor and state agencies in court.

“Sometimes those duties are in conflict with each other,” she said, “and when that conflict happens, the Attorney General must decide what is in the best interest of the state.”

In this case, she said the best interest of the state is for another office — the Office of General Counsel — to take on the case for the Governor.

But in a statement reacting to Kane’s initial announcement Thursday, General Counsel James Schultz said Kane had broken her oath “merely because of her personal beliefs” and denied receiving formal notification that the Attorney General’s Office was passing on the suit.

Schultz is not the only public figure to challenge Kane’s announcement.

Earlier this week, 24 members of Pennsylvania’s Republican caucus signed a letter accusing Kane of ignoring her sworn duties.

“We would simply urge you to reconsider your decision to refuse to fulfill the duties of the office to which you were elected,” they wrote.

In the Radio Times interview, Kane maintained that legal ethics requires her to withdraw from any case in which she has “a fundamental difference of opinion” with her client or finds the cause “repugnant.”