AG Kane will not defend Pa. against gay marriage suit

It was part press conference and part pep rally in Philadelphia's Constitution Center as Attorney General Kathleen Kane announced she couldn't defend Pennsylvania's ban on gay marriage.

“I cannot ethically defend the constitutionality of Pennsylvania's version of DOMA (Defense of Marriage Act) where I believe it to be wholly unconstitutional,” she said.

The supportive crowd erupted in applause several times as Kane read from prepared remarks her rare decision not to defend a Pennsylvania law because of personal reservations.

“It is exciting,” Kane said following the event. “I think it's very historic. The fact that we are breaking down yet another wave of inequality or discrimination is a good day.”

ACLU lawyers, who just this week sued the state, Kane and Gov. Tom Corbett for what they call an unconstitutional ban on gay marriage, were in the crowd and said it was a very good day.

“To have the top law enforcement officer of the Commonwealth, one of the top law enforcement officers in the country, two days after we bring a case tell us we're right, is earth shattering,” said Philadelphia attorney Mark Aronchick. “You can't even discuss the size of this decision, it's national, it's major, it's huge.”

It's now up to the governor's lawyer to defend DOMA.

General Counsel James Schultz will take up the case but issued this statement about Kane's decision.

“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,” he said. “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.”

When asked about her decision, Kane responded with a wry smile and chuckle from the crowd.

“The governor's going to be ok. He has a team of lawyers, very good lawyers,” she said.

But Kane's decision is not being received with giggles and chuckles everywhere.

“Saying because she is personally, morally opposed to this law she wouldn't defend it is not what Pennsylvanians elected their attorney general to do, which is very disappointing,” said Michael Geer of the Pennsylvania Family Institute.

Geer worries that judges and lawsuits are circumventing the will of the people and their elected representatives, who passed Pennsylvania's DOMA in 1996.

“Virtually every time, with one exception, when people have had the opportunity to vote at the ballot box whether marriage should remain as it always has been a union of one man and one woman that's what the people want. We think the people should have a voice,” said Greer.

During her event, Kane directly addressed such naysayers.

“I'm asking them to believe in the constitution. I'm asking them for tolerance. I'm asking them for understanding and I'm asking them for equality and due process.”

But there are critics that insist Kane's position is more political than personal. They say she sees the polls suggesting more and more Pennsylvanians support gay marriage and is capitalizing.

They also accuse her of grandstanding the issue because attorneys general rarely, almost never, appear in court personally. They say she could easily have assigned the case to one of her many lawyers.

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