Local Couples Part of a Lawsuit to Legalize Gay Marriage in PA

[SteelCityRising]

Originally Posted by Joe Magarac

I can't agree with this. An attorney general's job is to defend state law whether she agrees with it or not, just like a public defender's job is to defend criminals even if he thinks they are probably guilty. Doing so keeps the system honest, and God knows the system needs to be kept honest.

If we allow laws to be overturned just because somebody files a lawsuit and the AG doesn't feel like defending it, then we are essentially giving the executive branch a back-door way of getting rid of laws, even good laws.

If Pennsylvania's marriage law changes just because some people sued to block it and the AG was unwilling to defend it, I guarantee that gays will be dealing with an angry minority which claims to have been disenfranchised for years and years to come.

Supporters of gay marriage should not cheer this decision. They should look at it as though they got to the Super Bowl and won by forfeit: i.e., kind of a hollow victory.

From the article:

"The Commonwealth Attorneys Act gives the attorney general the "duty ... to uphold and defend the constitutionality of all statutes so as to prevent their suspension or abrogation in the absence of a controlling decision by a court of competent jurisdiction."

"It also says that the attorney general "may, upon determining that it is more efficient or otherwise is in the best interest of the Commonwealth, authorize the General Counsel or the counsel for an independent agency to initiate, conduct or defend any particular litigation or category of litigation in his stead."


If Kathleen Kane knows in good conscience she can't uphold a particular law due to her skepticism of the law's constitutionality (pretty intelligent, in my mind), then she is indeed determining that it's in the best interest of the Commonwealth to pass the buck to the Office of the General Counsel and recuse herself of defending a law she won't be able to fairly defend.

I don't know what will happen if the Office of the General Counsel also issues a statement later today saying that they, too, will refuse to defend the law. Will same-sex marriage then effectively be legalized in PA, only to be immediately vetoed by Governor Corbett, who doesn't support civil equality?

[Joe Magarac]

Originally Posted by SteelCityRising

I don't know what will happen if the Office of the General Counsel also issues a statement later today saying that they, too, will refuse to defend the law. Will same-sex marriage then effectively be legalized in PA, only to be immediately vetoed by Governor Corbett, who doesn't support civil equality?

It would be legalized unless the legislature were to hire someone to defend the law. (You may recall that Obama, who appoints the federal equivalent of the AG, would not defend DOMA, so the federal House and Senate hired a lawyer to defend the law; in California, neither the AG nor the state house nor state senate would defend Prop 8, so gay marriage was legalized).

If the legislature hired someone to defend the existing law, the lawsuit went forward, and the judge struck down the law as unconstitutional, there would be appeals, and if those appeals affirmed the judge's decision, then gay marriage would also be legalized.

Either way, Corbett has and will have no role in the process - as unlike the federal government, in which the AG serves at the pleasure of the President, in PA the AG is independently elected.

[SteelCityRising]

Originally Posted by Joe Magarac

It would be legalized unless the legislature were to hire someone to defend the law. (You may recall that Obama, who appoints the federal equivalent of the AG, would not defend DOMA, so the federal House and Senate hired a lawyer to defend the law; in California, neither the AG nor the state house nor state senate would defend Prop 8, so gay marriage was legalized).

If the legislature hired someone to defend the existing law, the lawsuit went forward, and the judge struck down the law as unconstitutional, there would be appeals, and if those appeals affirmed the judge's decision, then gay marriage would also be legalized.

Either way, Corbett has and will have no role in the process - as unlike the federal government, in which the AG serves at the pleasure of the President, in PA the AG is independently elected.

Thanks for this very detailed and informative reply. I'm admittedly much more ignorant about state government than Federal government and appreciate the clarification.

[Lobick]

Originally Posted by Joe Magarac

Either way, Corbett has and will have no role in the process - as unlike the federal government, in which the AG serves at the pleasure of the President, in PA the AG is independently elected.

That's true...up to a point.

Corbett will instruct the Office of General Counsel to defend the law.