Gay marriage: Pennsylvania attorney general pulls an Obama on DOMA

Pennsylvania’s attorney general, Kathleen Kane, announced Thursday that she will not defend her state’s ban on same-sex marriage in court.

In taking that step, Attorney General Kane (D) joins a select group: President Obama, US Attorney General Eric Holder, former California Gov. Arnold Schwarzenegger (R), and current California Gov. Jerry Brown (D) – all of whom declined to defend measures blocking recognition of same-sex marriage.

But in Pennsylvania, there’s a big difference: The state will still defend its own law. Gov. Tom Corbett (R) opposes gay marriage, and he can have his general counsel defend Pennsylvania’s anti-gay-marriage law in court.

Kane’s announcement came in response to a lawsuit filed on Tuesday by the American Civil Liberties Union, challenging Pennsylvania’s version of the Defense of Marriage Act (DOMA). The state law, passed in 1996, prohibits same-sex marriage and the recognition of same-sex marriages performed in other states.

"I cannot ethically defend the constitutionality of Pennsylvania's version of DOMA, where I believe it to be wholly unconstitutional," Kane told reporters at the National Constitution Center in Philadelphia on Thursday.

The ACLU lawsuit, known as Whitewood v. Corbett, was filed Tuesday on behalf of 10 same-sex couples, two children, and a lesbian widow, on the grounds that the Pennsylvania law denies them the “fundamental right” to marry regardless of gender or sexual orientation.

Last month, the US Supreme Court struck down a key portion of the federal DOMA, and cleared the way for gay marriages to resume in California after they had been banned there by Proposition 8. The court’s rulings also left room for further legal challenges in states that still ban gay marriage. Same-sex marriage is legal in 13 states plus the District of Columbia.

As in many states, public opinion has shifted dramatically in Pennsylvania in recent years. In March, a poll by Franklin & Marshall University found that 52 percent of Pennsylvanians now support gay marriage.  

Supporters of traditional marriage denounced Kane’s move.  

“She is blatantly politicizing the highest law enforcement office in our Commonwealth at the expense of a core responsibility of the Attorney General’s office,” state Republican chairman Rob Gleason said in a statement.  

Kane said she made her decision based on a desire to serve the public over defending the law. “I choose you,” she said.

But Pennsylvania politics are also unavoidably part of the mix, for both Kane and Governor Corbett. The governor is running for reelection, and can buff his conservative credentials as he fights efforts to undo the state’s marriage law.

Kane was just elected attorney general last November, and is not expected to run against Corbett for governor next year – but may well seek higher office in the future.

“Kathleen Kane’s decision is whether to run for Senate or governor,” says Ken Smukler, a Democratic strategist based in Philadelphia. “I think she will be a very strong candidate for either seat.”

In her election last year, Kane won with 3.1 million votes – more than any other candidate on the state’s ballot.

Sara Grove, a political scientist at Shippensburg University in Pennsylvania, points out that Pennsylvania has a history of top officials acting out of personal belief. When Robert Casey Sr. was governor, he refused to sign execution warrants, based on his devout Catholic faith, sparking a lawsuit from a county district attorney.

Since taking office, Kane has tackled a number of high-profile issues. In February, she named a former federal prosecutor to review the handling of the Jerry Sandusky sex-abuse case by the office of a previous attorney general – Corbett, now governor. Pennsylvania’s voter ID law is another hot topic.

“She’s got a lot going on, and she’s just not going to take on cases she doesn’t agree with,” says Terry Madonna, a political scientist at Franklin & Marshall College.