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Pa. AG Kane’s Refusal To Defend Pa. Same-Sex Marriage Law Not Unexpected

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David Madden David Madden
David Madden is a Philadelphia native with virtually a lifetime of...
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By David Madden and Jenn Bernstein

PHILADELPHIA (CBS) – Pennsylvania Attorney General Kathleen Kane’s decision not to defend her state’s “Defense of Marriage Act” (see related story) comes as a surprise to no one, given her publicly held stance on gay marriage.

But it’s a victory for Pennsylvania progressives in support of same-sex marriage.

On Thursday, Kane announced she will not defend the state’s ban on gay and lesbian marriages from a lawsuit filed by the ACLU and a local law firm.

“I cannot ethically defend the constitutionality of Pennsylvania’s version of DOMA where I believe it to be wholly unconstitutional,” said Kane during a press conference inside The National Constitution Center.

It was an emotional moment for dozens of gay rights supporters, including Angela Gillem and Gail Lloyd, who have been together 17 years.

“I was excited, I was so glad, I felt validated,” said Gillem.

The lawsuit was filed on behalf of 23 plaintiffs, including Gillem and Lloyd.

The Attorney General, as well as the governor and the Secretary of Health, are three of five named in the lawsuit.

Kane said her decision was legally based.

“Once we reviewed the relevant provisions of the Pennsylvania Constitution and the United States Constitution, then it was very clear that inequality must cease to exist in Pennsylvania and in the United States,” said Kane.

Dave Cohen, an associate professor of law at Drexel University, says the move is certainly symbolic but is unlikely to affect the lawsuit.

“It’s now completely up to Governor Corbett and what he does,” said Cohen. “Presumably, he will defend it, his lawyers will defend the law, and the case will go forward as normal.”

Kane campaigned as a gay marriage supporter, so Randall Miller, a political science professor at St. Joseph’s University, says he is not surprised she opted out of the lawsuit.
“For her the political cost is zero. The political benefit as a Democrat is just not calculable now, but it’ll be worth something,” he thinks, if for no other reason than that she is putting Republican governor Tom Corbett in a bind.

Governor Corbett did not directly respond to the announcement made by Kane, but Pennsylvania General Counsel did Thursday afternoon. They said they will represent the Governor if he chooses to challenge the lawsuit.

Pennsylvania General Counsel James D. Schultz wrote in-part:

“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.”

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