State gov’t lawyers squabble over AG’s recusal from same-sex marriage case

Attorney General Kathleen Kane

Attorney General Kathleen Kane

When state Attorney General Kathleen Kane bowed out of defending the state against the American Civil Liberties Union’s lawsuit challenging the state’s Defense of Marriage Act, that left an opening for the Corbett Administration to find its own lawyers.

Kane’s recusal reasoning was simple: She would not defend a law she believed was unconstitutional—and despite knee-jerk anger from the media and others, a provision in the Commonwealth Attorneys Act allows her to do just that.

That leaves Gov. Tom Corbett’s General Counsel James D. Schultz to defend the state against the ACLU and others.

And while he’s doing it—it’s his job, after all—he’s been letting the attorney general’s office know that he’s not happy about her conduct. The counsel and the AG’s office have been exchanging letters with regard to the case; the latest correspondence from the AG’s office to the counsel was viewed by Philadelphia Weekly, and based on the language used by both parties, we imagine the passive-aggressive evil eyes that seem to be glaring back and forth between the attorney general’s office and the governor’s counsel are going to get worse before they get better.

The initial letter from the attorney general’s office came on July 12, the day after Kane’s announcement at the National Constitution Center in Philadelphia that she would not be defending the case. In that letter, the AG’s office told Schultz that Kane had not made a personal decision to ignore the case, but a legal determination based upon the U.S. Supreme Court’s ruling that a provision in the Defense of Marriage Act is unconstitutional. Kane has a “sacred obligation,” it was noted, to uphold the constitution of the United States as well as that of Pennsylvania. That letter was sent by Kane’s chief of staff, Adrian King.

A letter of response soon followed, in which Schultz noted the “attorney general’s unprecedented public adjudication of the statute’s alleged unconstitutionality was an improper usurpation of the role of the courts, which at a minimum causes confusion among those charged with administering the law and places any lawyer defending the case at a disadvantage from the outset.” Schultz has also noted the attorney general’s response sets a “very troubling precedent” in the state.

On Tuesday, King sent a letter back to Schultz pointing out—pointedly—that the legal precedent of the Commonwealth Attorney’s Act (a) had already been explained and (b) was in no way troubling. King lays out the law pretty clearly:

I indicated that the Attorney General, as an attorney bound by the Pennsylvania Rules of Professional Conduct, is in fact obligated to delegate the defense of the Whitewood matter to the Governor’s attorneys, OGC. As you know, Governor Corbett is a steadfast supporter of the Marriage Law. It is reasonable to assume that the Governor seeks to have his position vigorously represented before the court. Given the Attorney General’s fundamental disagreement with the Governor on this issue — in her capacity as his attorney — the Rules of Professional Conduct clearly require her withdrawal. Rule of Professional Conduct 1.16 — Declining or Terminating Representation— states: ‘[A] lawyer may withdraw from representing a client if . . . the client insists on taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.’

The letter continues:

Your position that the Attorney General’s action with respect to Whiíewood “establishes a very troubling precedent” is without merit. Universal equality is the essential ingredient of a fair and just society. The Marriage Law is one of the last discriminatory statutes in the Commonwealth. Just as discriminatory laws based on race, religion, gender, disability and ethnic origin have been struck down by the courts one by one, so too will the Marriage Law. In short, this is a watershed moment. It is certainly not the beginning of the “chaos and uncertainty” that you hysterically predict. Look no further than the Attorney General’s defense of the Voter ID case for proof.

Furthermore, it is not your job to tell the Office of Attorney General (“OAG”) — an independent agency — what its duties and obligations are. I previously expressed to you my hope that we could “agree to disagree” on the respective legal positions of the Attorney General and the Governor in this important matter, and further agree that each of us is acting in good faith to uphold the constitution and other legal duties and responsibilities of our respective offices. Going forward, I expect that OGC will respect OAG’s position.

So, readers who really enjoy watching bickering between politicians and lawyers: Get the popcorn ready. This isn’t going away.

Follow Randy on Twitter: @RandyLoBasso

One Response to “ State gov’t lawyers squabble over AG’s recusal from same-sex marriage case ”

  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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