Is Kathleen Kane playing politics on DOMA issue? Sort of — but that’s cool

Attorney General Kathleen Kane

Attorney General Kathleen Kane

The ACLU of Pennsylvania made national headlines last week when they announced a lawsuit on behalf of 23 LGBT Pennsylvanians who either want to get married or want the state to recognize their marriage. The suit claimed excluding their right to marriage “undermines the plaintiff couples’ ability to achieve their life goals and dreams, threatens their mutual economic stability, and denies them ‘a dignity and status of immense import’” — and the state law doesn’t exactly make things easy on their kids, either.

Before the end of the week, there was another revelation: Pennsylvania Democrat Attorney General Kathleen Kane stated she will not serve as the state’s attorney in the case.

“I cannot ethically defend the constitutionality of Pennsylvania’s version of DOMA when I believe it to be wholly unconstitutional,” she said at the National Constitution Center in Philadelphia on Friday.

Both Kane and Gov. Corbett were named in the original lawsuit. The ACLU applauded Kane’s decision to avoid the case.

“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. We look forward to continuing the fight to make sure that one day every Pennsylvanian will be free to marry the person he or she loves,” said ACLU of Pennsylvania executive director Reggie Shuford, in a statement.

Now, the state GOP and others are pouncing on Kane for her so-called hypocrisy.

“Kane’s shameless publicity stunt is now revealed as stunning hypocrisy,” the Pennsylvania GOP said in a press email. They additionally released a short video explaining that hypocrisy.

Turns out, when debating former Democratic primary foe Patrick Murphy in 2012, Kane noted, “The attorney general does not have the right to pick and choose which laws he or she enforces,” then added: “We need to make sure we enforce the laws, or you are just playing politics.”

The GOP haven’t been the only ones to jump on Kane’s position. Daily News columnist Stu Bykofsky released a blog on Monday titled, “Resign, Ms. Kane.” (Really?)

In said blog, he compared Kane’s position to segregationists of the Civil Rights Movement.

This is materially no different than George Wallace blocking the entrance to a school because he didn’t agree with the court knocking down segregation. It is different only in that we don’t like where he was, but (most of us) do like Kane’s position. But that it not the issue. The issue is obeying (and in Kane’s case) defending the law, even if not palatable.

Of course, while similar on the surface (the law is involved?), Kane’s position isn’t really like Wallace’s at all! In Brown v. Board of Ed., the Supreme Court said that states could no longer segregate their own schools. In the Supreme Court’s DOMA decision this year, it was ruled that the federal Defense of Marriage Act is not constitutional, though doesn’t say the same about Defense of Marriage Acts passed in individual states.

When Wallace stood in front of the University of Alabama in 1963, he was refusing to enforce a federal court order to allow three students with perfect qualifications to attend the school. Kane is avoiding a case in which she believes her potential opponent to hold the constitutional viewpoint.

Similarly, there is a difference between defending and enforcing a law. In the hypothetical “enforcement” of the transvaginal ultrasound law, the attorney general would find herself prosecuting doctors who did not follow the rules — like, say, if said doctors did not turn the ultrasound video toward the woman in question who was seeking an abortion, as the original writing of that now-dead bill required.

Kane made other statements during the campaign that the GOP is currently overlooking.

“In and of itself, that bill is unenforceable,” she also said of the ultrasound legislation. “It is a disgusting bill. It should never make its way out of the legislature. And if elected Attorney General, there is no possible way that that bill could be enforced, and nor will it because it is a violation of constitutional rights.”

And then there’s this: Kane is sort of playing politics. Her position very much like (though not as extreme) as the Obama Administration’s, when it decided to stop enforcing DOMA before the U.S. Supreme Court’s decision.

Kane’s statements and backtracks during the campaign were par for the course. She played politics the way politicians looking to win the popular vote play politics during campaign seasons. Now, she’s playing politics in a different way—one which the Republicans in state government shouldn’t be upset about, really. Because do you, anti-DOMA crusaders in the Corbett Administration, really want your lawyer doing a potential half-assed job defending what is quickly becoming the indefensible?

And then: Pennsylvania used to appoint attorney generals. Now we elect them. We’ve created a situation in which our state’s lawyer is a politician who represents a political party. And political parties, politicians: They play politics. Try to enjoy it.

Follow Randy on Twitter: @RandyLoBasso

One Response to “ Is Kathleen Kane playing politics on DOMA issue? Sort of — but that’s cool ”

  1. There is a big difference between enforcing a law and defending it in court. Take the Defense of Marriage Act (DOMA): It was transparently unconstitutional, since it set up differing legal standards for legally married Gay and Straight couples. That’s why the Obama Administration chose not to DEFEND it in court. This doesn’t mean that the law was not enforced while it was still on the books.

    Similarly, Kathleen Kane will continue to enforce Pennsylvania’s ban on marriage for Gay couples for as long as the law is on the books. But in terms of its constitutionality, why should she be forced to defend in court something that she knows is indefensible, especially given the Supreme Court’s decisions on DOMA and Prop. 8?

    Those of us who support marriage equality for law-abiding, taxpaying Gay couples didn’t really have a choice but to “target” all the piecemeal, state-by-state bans, didn’t we? The Supreme Court could have issued a comprehensive ruling requiring Gay and Straight couples to be treated equally, at ALL levels of government, but instead they chose to punt on the some of the details.

    So what now? Most of the legal benefits of marriage come from the federal government. Take survivor benefits under Social Security, for example. Legally married Gay couples in Iowa are now entitled to those benefits, but suppose one of those couples relocates to West Virginia, which has a statutory ban on same-sex marriage. Does the state have the power to forcibly annul that marriage? And if so, does the couple now LOSE those federal benefits?

    Don’t fault US for continuing this fight. The Supreme Court left us no choice.

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