Pa. AG won’t defend state’s same-sex marriage ban

Pennsylvania’s elected attorney general said Thursday that she will not defend the state law effectively banning same-sex marriage from a legal challenge in federal court, meaning the task will be left up to Gov. Tom Corbett. 

“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.

Plaintiff Helena Miller married her partner, Dara Raspberry, in Connecticut, but Pennsylvania law does not recognize the marriage. They brought their six-week-old daughter, Zivah, to court.

Miller said, “It really does center around equality and protections for our family. And so this is really all about Zivah – look at that smile! – and so I really couldn’t be more proud.”

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.

Kane, a Democrat who supports same-sex marriage, said she will leave the job to Corbett, a Republican who opposes same-sex marriage. Both were named in a lawsuit filed in federal court Tuesday seeking to overturn the law and legalize same-sex marriage in Pennsylvania.

Pennsylvania is the only northeastern state that does not allow same-sex marriage or civil unions.

A 1996 state law defines marriage as a civil contract in which a man and a woman take each other as husband and wife. The state also does not allow civil unions or recognize same-sex marriages from other states that allow it.

The plaintiffs in the lawsuit are a widow, 10 couples and one of the couples’ two teenage daughters. The group includes four couples who were legally married in other states but whose marriages go unrecognized by Pennsylvania.

Same-sex marriage is legal or soon will be in 13 states. The lawsuit asks a federal judge to prevent state officials from stopping gay couples from getting married and to force the state to recognize the marriages of same-sex couples who wed in other jurisdictions.

Lawyers in the case believe it is ultimately bound for the U.S. Supreme Court, probably along with similar cases in other states, and could force the high court to rule on the core question of whether it is unconstitutional to deny same-sex couples the right to marry.

Professor John Culhane, director of the Health Law Institute at Widener Law School in Delaware says the move will not “make any substantive difference in terms of the defense the law is going to receive.

He points out that the Justice Department under President Barack Obama declined to defend the federal Defense of Marriage Act but that other parties provided effective representation.

Pennsylvania’s so-called “mini-DOMA,” also became law in 1996. The Attorney General of Illinois has also declined to defend that state’s version of the law in on ongoing lawsuit.

In Pennsylvania, he says, “I think it puts the governor in possibly an uncomfortable position.”

“Despite his stated position this is probably not something he wants to be seen as really pushing too hard on given that now a majority of Pennsylvanians support the rights of same sex couples to marry.”

Late Wednesday, Governor Corbett’s General Counsel James D. Schultz issued a non-commital statement saying that his office would continue to review the lawsuit pending a “formal notification of Attorney General Kane’s decision.

“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.”

Separate legislation permitting same-sex marriages has been re-introduced in the state legislature but would face a very tough road to the Governor’s desk.

The Associated Press contributed to this report.