By Cherri Gregg

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PHILADELPHIA (CBS) — Defending Pennsylvania’s law effectively banning same-sex marriage against a legal challenge in federal court will fall to Gov. Tom Corbett.

Pennsylvania’s elected attorney general, Kathleen Kane, said today that she won’t defend the law.

Kane is a supporter of same-sex marriage; Corbett is an opponent.  Both were named in a lawsuit filed in federal court on Tuesday seeking to overturn the law and legalize same-sex marriage in Pennsylvania (see related story).

The state’s “Defense of Marriage Act” defines marriage as between a man and a woman, and refuses to recognize out-of-state gay marriages.

According to Pennsylvania law, it is the attorney general’s duty to defend the constitutionality of state laws.  But the statute also says the attorney general may allow lawyers for the governor’s office or agencies to defend a lawsuit if it’s more efficient or in the state’s best interests.

Today, at the National Constitution Center in Philadelphia, Kane told an enthusiastic crowd that her duty to the Constitution in this case supercedes her duty to the state legislature or the governor.

Noting that other forms of discrimination have fallen in Pennsylvania over the years, she said she could not defend a measure that codifies discrimination against one particular group of citizens (see related story).

“I cannot ethically defend the constitutionality of Pennsylvania’s version of DOMA, where I believe it to be wholly unconstitutional,” she said.

Kane asked those who disagree with gay marriage to have tolerance.

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“I’m not asking them to believe in it,” she said. “I’m asking them to believe in the Constitution.”

Hear Pa. Attorney General Kathleen Kane’s full statement (runs 11:34)…


Mark Aronchick, the lead attorney in the ACLU lawsuit (see related story), says they are thrilled.

“I couldn’t have imagined a better day,” he told KYW Newsradio, “and we’re going to have to figure out what we will do with it in the case right now.”

The Office of General Counsel, which represents the governor, issued a statement today saying, “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.   We have not received any formal notification of Attorney General Kane’s decision.  While we await that notification and accompanying legal justification, we will continue to review the lawsuit filed by the ACLU.”

Whether or not the governor’s Office of General Counsel decides to challenge the ACLU lawsuit, plaintiffs Helena Miller and Dara Raspberry, who married in New York, say it’s a step forward.

“However hard this might be, it’s 100 percent worth it if we get to be a legally respected family,” Miller said.


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