It has been a landmark year for same sex marriage rights in the United States, culminating in last month’s historic Supreme Court decision in United States v. Windsor, 133 S.Ct. 2675 (2013), overturning Section 3 of the federal Defense of Marriage Act (“DOMA”). A few days after the Windsor verdict was announced, both proponents and opponents of same sex marriage began sifting through the legal implications of the ruling. Does Windsor mean that all same sex couples can file joint federal tax returns? What if the couple got married in a state where same sex marriage is legal, but lives in a state where it is not? What about social security benefits? What about federal inheritance tax? At this point, there are still more questions than answers.
What we do know is that, as significant as Windsor is, it does not automatically confer additional rights to legally married same sex couples who live in a state, like Pennsylvania, where same sex marriage is not permitted. Here, and in the other 36 states like us, same sex marriage remains a matter of state law.
Less than two weeks after the Windsor verdict was announced, a group of 23 people (10 couples, a widow, and a lesbian couple’s two children), represented by the American Civil Liberties Union, filed the first post-Windsor lawsuit challenging a state’s gay marriage ban. The case, Whitewood v. Corbett, was filed in federal court in Harrisburg, Pennsylvania, where it is expected to take several years to wind through the judicial system. The lawsuit names, among other state officials, Pennsylvania Governor Tom Corbett and Pennsylvania Attorney General Kathleen Kane as defendants.
Tracing the political paths of Attorney General Kane and Governor Corbett leads you to an interesting crossroads. Corbett was first appointed as Pennsylvania Attorney General in 1995, by then Governor Tom Ridge, to fill the remainder of the term when Attorney General Ernie Preate was criminally convicted of racketeering and corruption. A condition on Corbett’s appointment, placed on him by PA Senate Democrats, was that he could not run for re-election as an incumbent the following year. After two terms out of office, Corbett ran for Attorney General and was elected in 2004 and again in 2008. Corbett served as AG for six years before being elected Governor of Pennsylvania in 2010.
Upon Corbett’s departure, he appointed his own interim successor, Attorney General Linda Kelly, to fill the remaining two years of his term. In 2012, Kathleen Kane became the first woman – and first Democrat – elected Pennsylvania Attorney General. By garnering more than three million votes, Attorney General Kane outperformed both President Obama and PA Democratic Senator Bob Casey on the 2012 ballot. In the short time since her election, Kane has often used this mandate to lobby against the Governor’s conservative initiatives.
Perhaps, then, it is no surprise that three days after the Whitewood lawsuit was filed, Attorney General Kane announced that her office will not defend the Pennsylvania DOMA statute. While Kane’s move is by no means the final word on the issue, it is a blow to the ban’s supporters. To understand how much so, one must examine the important and unique role of Pennsylvania’s Attorney General.
In 1980, with passage of the Commonwealth Attorneys Act, the PA Attorney General became an elected (as opposed to appointed) position. The Attorney General is the chief law enforcement officer in the state and is completely independent from the Governor. The AG’s office is responsible for state criminal prosecution and consumer protection. It is also tasked with defending the Commonwealth and its various state agencies (including the Governor’s office) against civil lawsuits, like Whitewood.
Indeed, since her announcement not to defend PA DOMA, state Republicans have argued that Kane’s decision is a dereliction of her duties as Attorney General. Thus far, there appears to be no teeth to this argument, since the Commonwealth Attorneys Act contains conflicting provisions. One provision states that the AG shall defend all state statutes absent an appropriate court ruling overturning them, another section states that the AG may refer defense of statutes to the Governor’s office if such a move is in the best interests of the Commonwealth. One thing is certain, however: Attorney General Kane’s decision is identical to that made by United States Attorney General Eric Holder and the Obama administration, which decided that the Department of Justice would not defend federal DOMA in the Windsor case.
In announcing her decision not to defend the PA gay marriage ban, Kane stated “I cannot ethically defend the constitutionality of Pennsylvania’s version of DOMA as I believe it to be wholly unconstitutional.” At this point, defense of the PA DOMA statute falls to the Governor’s Office who must delegate the case to one of its own attorneys or hire counsel from the private sector. Because the Governor and the Attorney General are completely independent from one another, Governor Corbett cannot force Attorney General Kane to defend the statute. Thus far, there has been no comment from the Governor’s office regarding whether or how he will defend the ban, although Governor Corbett’s spokesman has said the Governor supports PA DOMA. With the Governor’s run for re-election just a year away, his handling of the case will have both personal political and public implications. To say the least, stay tuned!