July 11 (Bloomberg) -- Pennsylvania Attorney General Kathleen Kane said she won’t defend a court challenge to the state’s same-sex marriage ban, which she called “wholly unconstitutional.”
“Denying equality is the very definition of discrimination,” Kane, a Democrat, said today at a press conference in Philadelphia. “It’s now the time here in Pennsylvania to end another wave of discrimination.”
Twenty-three plaintiffs backed by the American Civil Liberties Union sued Republican Governor Thomas Corbett in federal court July 9 over a state law that defines marriage as a union between a man and a woman. Some of those gathered to hear Kane’s announcement held pictures of the plaintiffs.
Advocates for same-sex marriage are seeking to increase the number of states where it’s legal after the U.S. Supreme Court last month struck down the Defense of Marriage Act, or DOMA, which denied federal benefits to married gay couples. Thirteen states and the District of Columbia allow same-sex marriage.
“I cannot ethically defend the constitutionality of Pennsylvania’s version of DOMA,” Kane, 47, said today. Pennsylvania’s Office of General Counsel will take the case on the state’s behalf, she said. “The governor is going to be OK. He has a team of lawyers.”
General Counsel James D. Schultz said in a statement that his office hasn’t received formal notice of Kane’s decision and is still reviewing the lawsuit, which also names as defendants Kane in her capacity as attorney general and Michael Wolf, the secretary of Pennsylvania’s Department of Health.
“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,” Schultz said.
Kane was elected last year with 3.1 million votes, the most of any candidate on the state ballot. During the campaign, she promised to review how the attorney general’s office handled the Jerry Sandusky sex-abuse investigation, which began in early 2009, when Corbett, 64, held the post. He was elected governor in 2010.
Sandusky, a former assistant football coach at Pennsylvania State University, was found guilty in June 2012 of 45 counts of abusing boys over a 15-year period and sentenced to 30 years in prison. In February, Kane appointed a special prosecutor to handle the Sandusky review.
In a poll released June 6 by the Quinnipiac University Polling Institute, 58 percent of voters said Corbett didn’t do enough as attorney general to investigate the Sandusky case.
Kane this year also rejected a deal negotiated by Corbett to hand over management of the state’s $3.48 billion lottery to a U.K. company. She said the agreement with Camelot Group Plc violated the state’s constitution because it lacked the required legislative approval.
“We are pleased that the attorney general recognizes what we have long known -- that Pennsylvania’s ban on marriage for same-sex couples is indefensible,” Reggie Shuford, executive director of the ACLU of Pennsylvania, said in a statement.
Her move mirrors the decision by President Barack Obama to seek to overturn the federal Defense of Marriage Act before the U.S. Supreme Court, and California Attorney General Kamala Harris’s opposition to her state’s ban on gay marriage.
The Obama administration announced in February 2011 that it would no longer oppose court challenges to DOMA after deciding that the law was unconstitutional.
Kane echoed that sentiment today, saying she believed Pennsylvania’s law to be “wholly unconstitutional” and not representative of the will of the people. Kane said that while it’s her job to defend the constitutionality of Pennsylvania’s laws, she also serves as a voice for all residents of the state.
Mark Aronchick, an attorney for the plaintiffs with Hangley Aronchick Segal Pudlin & Schiller, called the announcement “earth-shaking.” Lawyers are planning to re-evaluate the suit in light of her decision, Aronchick said.
Kane said her decision today won’t affect her relationship with Corbett.
“We’re both professionals,” she said.
The case is Whitewood v. Corbett, 13-cv-01861, U.S. District Court, Middle District of Pennsylvania (Harrisburg).
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