Penn. AG Won't Defend State's Marriage Ban

Pennsylvania Attorney General Kathleen Kane said she "cannot ethically defend the constitutionality of Pennsylvania's version of DOMA. I believe it to be wholly unconstitutional."

BY Sunnivie Brydum

July 11 2013 12:42 PM ET UPDATED: September 12 2013 5:26 PM ET

Pennsylvania Attorney General Kathleen Kane announced Thursday that she will not defend the state's so-called Defense of Marriage Act in a legal challenge filed by the American Civil Liberties Union Tuesday, and will refuse to defend the other named defendant, republican governor Tom Corbett.  

“I cannot ethically defend the constitutionality of Pennsylvania’s version of DOMA," said Kane, according to BuzzFeed. "I believe it to be wholly unconstitutional.”

Kane, a Democrat and the first woman ever elected to serve as AG, made the announcement at Philadelphia's National Constitutional Center Thursday afternoon, according to BuzzFeed. Kane also made clear that she was unable to speak for the Republican governor or speculate as to how he would handle the legal challenge. She did confirm that when the AG declines to defend a law, defense for the governor's office is turned over to the office of General Counsel. 

The group of plaintiffs challenging Pennsylvania's 1996 so-called Defense of Marriage Act includes 10 couples, two minor children of those couples, and one widow who recently lost her partner of 29 years. Following recent landmark rulings in the Supreme Court that struck down a key segment of the federal DOMA, the Penn. couples allege that the state's refusal to recognize their relationships violates both the fundamental right to marry and the Equal Protection Clause of the Fourteenth Amendment.

Kane's refusal to defend the law mirrors current California governor Jerry Brown's refusal to defend Proposition 8 when it faced a similar legal challenge in 2009, when Brown was the state's attorney general. In that case, which reached the Supreme Court as Hollingsworth v. Perry, then-governor Arnold Schwarzenegger also refused to defend the law in court. Since none of the public officials named in the suit were willing to defend the voter-approved ban on same-sex marriage, the proponents who got the initiative on the ballot stepped in to defend it in court. But the Supreme Court ruled last month that those civilians had no legal right to defend the law, essentially dismissing the suit and restoring marriage equality to California. 

Brian Sims, Pennsylvania's first openly LGBT elected state official, applauded Kane's pledge not to defend the discriminatory law. “Attorney General Kane, Pennsylvania’s lead legal authority, has a keen legal mind and in her determination has decided that continuing to defend the Commonwealth’s DOMA has no legal merit," Sims said in a statement Thursday. "While this does not mean that marriage equality will become the law in Pennsylvania today, certainly AG Kane’s announcement is a step in the right direction to address the legal inequalities impacting LGBT Pennsylvanians."

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