By MARYCLAIRE DALE and MARC LEVY
Pennsylvania’s elected attorney general said Thursday that she will not defend a 17-year-old state law effectively banning same-sex marriage from a legal challenge in federal court, meaning the task will be left up to Gov. Tom Corbett.
In a brief statement to reporters and a small crowd of supporters at the National Constitution Center in Philadelphia, Kane said she cannot ethically defend the constitutionality of Pennsylvania’s marriage law, and that she believes it to be unconstitutional.
“Today, the attorney general chooses to protect all those without high-priced lawyers, all those who suffer discrimination and inequality, those thousands of families who have been denied of the dignity and respect that the constitution protects and guarantees in marriage equality,” Kane said. “Today we represent everyone who does not have representation.”
Under Pennsylvania law, it is the attorney general’s duty to defend the constitutionality of state laws. But the law also says the attorney general may allow lawyers for the governor’s office or executive-branch agencies to defend a lawsuit if it is more efficient or in the state’s best interests.
Kane, a Democrat who supports same-sex marriage, said she will leave the job to Corbett, a Republican who opposes same-sex marriage. Both were named in a lawsuit filed in federal court Tuesday seeking to overturn the law and legalize same-sex marriage in Pennsylvania.
Corbett’s office has declined to comment on the lawsuit. The Office of General Counsel, which is under the governor, is accustomed to handling the state’s legal affairs and routinely hires outside lawyers to either defend state laws or prosecute lawsuits on behalf of the state.
For instance, the office is helping in the defense of Pennsylvania’s year-old voter identification law and it handled Corbett’s anti-trust lawsuit, now thrown out of federal court, seeking to undo the NCAA sanctions against Penn State relating to the Jerry Sandusky child sex abuse scandal.
Pennsylvania is the only northeastern state that does not allow same-sex marriage or civil unions. The lawsuit, in the works since January, was not prompted by the U.S. Supreme Court’s pair of decisions three weeks ago ruling on aspects of gay marriage.
A 1996 state law defines marriage as a civil contract in which a man and a woman take each other as husband and wife. The state also does not allow civil unions or recognize same-sex marriages from other states where it is legal.
Recent polls show a growing majority are in favor of gay marriage in Pennsylvania, even though bills to legalize gay marriage have gone nowhere in recent years in the Legislature.
Kane had signaled her support of gay marriage during her campaign, but the ACLU, which is co-counsel in the lawsuit, was still unsure how she might respond to it, said staff attorney Mary Catherine Roper.
“This is a huge boost,” Roper said. “You’ve got the chief law enforcement officer of the commonwealth saying you’re right. This is not legal. I think it’s a sign that things are changing.”
The plaintiffs in the lawsuit are a widow, 10 couples and one of the couples’ two teenage daughters. The group includes four couples who were legally married in other states but whose marriages go unrecognized by Pennsylvania.
One of the plaintiffs who showed up to hear Kane speak, Maureen Hennessey, was in a relationship for 29 years with Mary Beth McIntyre and raised three children before they married in Massachusetts in 2011. McIntyre died in May, but Hennessey, 53, is not eligible for her Social Security benefits, and is subject to a non-spouse inheritance tax, because Pennsylvania does not recognize their marriage.
“It was really sad at the end of Mary Beth’s life, to have her worried about it,” Hennessey said. “But she knew things were changing. … Anybody who’s ever been in a committed relationship, raised children, spent 29 years together, if they thought about it, really wouldn’t want someone else to not have those benefits.”
Same-sex marriage is legal or soon will be in 13 states. The lawsuit asks a federal judge to prevent state officials from stopping gay couples from getting married and to force the state to recognize the marriages of same-sex couples who wed in other jurisdictions.
Lawyers in the case believe it is ultimately bound for the U.S. Supreme Court, probably along with similar cases in other states, and could force the high court to rule on the core question of whether it is unconstitutional to deny same-sex couples the right to marry.