I usually end posts like this with the line ‘The march goes on ….’ But I think it best to start that way, today.
Up there, round Pennsylvania way, state Attorney general, Kathleen Kane, has announced that she will not defend Pennsylvania in a federal lawsuit filed this week that challenges the constitutionality of the state’s ban on same-sex marriage. In fact, Kane called the ban “wholly unconstitutional.”
Holy unconstitutionality, Batman!
It all began when the American Civil Liberties Union [ACLU] filed suit on behalf of twenty-three Pennsylvania residents naming Kane and the state’s Republican Governor Tom Corbett—who supports a ban on same-sex marriage—as defendants. But, with Kane’s move, the onus of defending the law falls on the governor’s general counsel.
Kane—who endorsed the idea of gay marriage while running for her post last year—said she was obligated to drop the case “because I endorse equality and anti-discrimination laws” and if “there is a law that I feel that does not conform with the Pennsylvania state constitution and the U.S. Constitution, then I ethically cannot do that as a lawyer.”
Kane also says the Pennsylvania General Counsel, James Schultz, was fully capable of defending the governor: “I’m not leaving them high and dry,” she said. “They have their own team.”
Thomas Peters, spokesman for the National Organization for Marriage, said Kane’s refusal to defend the ban represented a sort of “pocket veto” of the law: “This is just one more example of how the Supreme Court set a bad precedent [last month] in allowing elected officials to not represent the will of the people when they find it expedient.”
Actually, Thomas, it allows elected officials to enforce the Constitution of their state, and of the country. And this could work out like it did in California back in 2008, when then Governor Arnold Schwarzenegger and current Governor Jerry Brown—who, at the time, was California’s attorney general—declined to defend the proposition.
It may go the the Supreme Court, but we already know how that story ends.
James Schultz, the Pennsylvania General, expressed his surprise that Kane “contrary to her constitutional duty…has decided not to defend a Pennsylvania statute lawfully enacted by the General Assembly, merely because of her personal beliefs.”
Actually, what she has said is that she finds the ban runs against the state Constitution, and therefore she finds it indefensible. And, for her part, Kane has said, time and again, that she made her decision because, in a choice between defending the law and serving the public, “I choose you.”
Mary Catherine Roper, a senior staff attorney for the ACLU of Pennsylvania, calls Kane’s announcement a big step forward: “To have the highest law enforcement official of the Commonwealth come out and say, ‘I agree with you, this law is unjust, that’s huge for us.’”
Of course, the state GOP chairman Rob Gleason called it “unacceptable for Attorney General Kathleen Kane to put her personal politics ahead of her taxpayer-funded job by abdicating her responsibilities.”
She.Is.Upholding.The.Constitution. The GOP—like Corbett, Schultz and Gleason—are the ones putting their personal beliefs before the law.
Finally, yes, you guessed it, the march goes on ….