AG Kane declines to defend PA marriage ban
by Jen Colletta and Angela Thomas
Jul 11, 2013 | 2533 views | 1 1 comments | 96 96 recommendations | email to a friend | print
Pennsylvania Attorney General Kathleen Kane at the National Constitution Center in Philadelphia. 
Photo: Scott A. Drake
Pennsylvania Attorney General Kathleen Kane at the National Constitution Center in Philadelphia. Photo: Scott A. Drake
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PA Attorney General Kathleen Kane announces decision not to defend state DOMA
PA Attorney General Kathleen Kane announces decision not to defend state DOMA
The Pennsylvania Attorney General announced this week that she would not defend the state's ban on same-sex marriage against a pending lawsuit challenging its constitutionality.

AG Kathleen Kane made the announcement at a Thursday afternoon press conference at the National Constitution Center, which was packed with LGBT and ally supporters.

She likened the fight for marriage equality to other civil-rights struggles.

"Equality is the fundamental significance of a Democratic society. We have progressed to equality over our great history here in Pennsylvania and in the United States," she said. "Without this equality, our society would never have achieved segregation of our schools, marriage equality between interracial couples and women would still not be able to vote or hold office. Denying equality is the very definition of discrimination."

She went on to say she could not defend the ban on marriage equality based upon her duty to uphold the constitution.

“I cannot ethically defend the constitutionality of Pennsylvania’s version of DOMA, where I believe it is wholly unconstitutional,” she said. "Who represents you? Who is it in this commonwealth that stands up for your rights, your constitutional protections and, in thinking of that, I thought the only person who has that duty and responsibility is the office of the attorney general. And as attorney general, I choose you."

Kane was met with thunderous applause and a standing ovation from the nearly 200 people in attendance.

The pronouncement means that the defense of the law will now be left in the hands of Gov. Tom Corbett, a Republican opposed to marriage equality. Corbett's office has not yet announced its position on the suit.

Kane said her office will sent Corbett's a letter detailing her decision.

Kane's action mirrors that of the Obama administration, which declined to defend against challenges of the federal ban on same-sex marriage. In those cases, a Congressional legal group intervened to defend the law, a key provision of which was struck down last month by the U.S. Supreme Court. The Supreme Court also paved the way for the overturning of the ban on same-sex marriage in California, whose attorney general and governor also declined to defend.

The announcement came after a group of same-sex couples filed suit in federal court suing the state for the right to marry, the first such case to ever be filed in Pennsylvania.

The American Civil Liberties Union and its Pennsylvania chapter filed the suit July 9 in the U.S. District Court for the Middle District of Pennsylvania on behalf of 23 plaintiffs, who are calling on the federal court to declare that the denial of marriage rights to same-sex couples in Pennsylvania is a constitutional violation.

The ACLU is being assisted in the suit by firm Hangley Aronchick Segal Pudlin & Schiller, based in Philadelphia.

Named as defendants in the suit are Corbett, Kane, Health Secretary Michael Wolf and two registers of wills in Washington and Bucks counties, who denied marriage licenses to same-sex couples.

Nils Hagen-Frederiksen, Corbett’s press secretary, said the governor was not yet ready to release an official statement on the suit.

“The complaint was filed, we received a copy and we’re in the process of reviewing it,” he said.

The case has been assigned to Judge John E. Jones 3d, a Bush appointee.

Mary Catherine Roper, senior staff attorney at the PA ACLU, said the agency’s decision to file the suit was directly related to last month’s Supreme Court ruling striking down a key section of the Defense of Marriage Act, the federal ban on same-sex marriage, as unconstitutional.

Pennsylvania has had its own similar ban on same-sex marriage since 1996.

“We’ve been preparing for this for a long time but didn’t file sooner because we were waiting for the decision. We knew what the Supreme Court said was going to matter,” Roper said, noting that she anticipates the landmark DOMA ruling will be at play in the state suit. “Justice Kennedy really expressed beautifully the harm that comes from not recognizing marriage for committed couples, the lack of dignity and insult to the couple and their children. Hopefully what he said will help frame the conversation about what this is really about.”

The suit, Whitewood v. Corbett, contends that excluding gays and lesbians from marriage violates their constitutional rights to due process and equal protection, and does not “rationally further any legitimate government interest,” the question considered in the rational-basis review of a law.

“We’re making a lot of the same arguments that the ACLU made in the Windsor case,” Roper said. “We wouldn’t expect the same ruling because a lot of what Justice Kennedy talked about was the prerogative of the state to deal with marriage issues, as opposed to the federal government. But he identified a lot of reasons that the federal government really didn’t have a reason to discriminate against gay and lesbian couples, and in this case we feel that the state also does not have a reason to discriminate against gay and lesbian couples.”

Mark Aronchick will be handling the case for Hangley. Aronchick is the former city solicitor and former chancellor of the Philadelphia Bar Association. He helped draft the LGBT nondiscrimination legislation in Lower Merion and chaired the town’s human-relations commission.

He said his firm was eager to take the case pro-bono.

“When we were asked by the ACLU if our firm, and me in particular, would consider taking this on, it took less than a nanosecond to say yes,” Aronchick said. “The case filed today is as important as any civil-rights case pending in any federal court in the country. I think this is the next chapter following Windsor and Perry.”

The attorneys spent several months identifying and interviewing potential plaintiffs, Roper said, and limited the list to 10 couples, who represent all corners of the state. Some of the couples are married legally in other states, and others are not yet legally married.

The lead plaintiffs are Deb and Susan Whitewood of Bridgeville, just outside of Pittsburgh, as well as their two teenage daughters. The couple has been together for 22 years and is also raising a 2-year-old son. They have a civil union in Vermont.

Also from the Pittsburgh area are Dawn Plummer and Diana Polson and Fredia and Lynn Hurdle.

Philadelphia plaintiffs include Helena Miller and Dara Raspberry, Fernando Chang-Muy and Len Rieser and Angela Gillem and Gail Lloyd. Also from Philadelphia is Maureen Hennessey, whose partner of 29 years died in May.

Plaintiffs Ron Gebhardtsbauer and Greg Wright live in State College, Edwin Hill and David Palmer in Bangor, Heather and Kath Poehler in Downingtown and Marla Cattermole and Julia Lobur in Harrisburg.

The couples are diverse in age and other factors, Roper noted, with couples who are biracial, African-American and other races. They also run the gamut of socio-economic status, with both blue- and white-collar workers whose occupations range from bank executive to dog walker.

“We think it’s a really beautiful selection of people,” Roper said. “We wanted to show how broadly this impacts people.”

At a press conference Tuesday to announce the suit, Miller and Raspberry, Chang-Muy and Rieser and the Whitewoods joined the attorneys in speaking to the crowd.

“They spoke straight from the heart, and there wasn’t a dry eye in the house,” Aronchick said. “It was one of those times where you know you’re in the middle of a major historic movement, one of those transcendental moments that hopefully we’re all lucky enough to experience. I’ve been involved in a lot of high-impact litigation, and there is absolutely no other case I can remember that had more of a sense of history and urgency and importance to it.”

The defendants will have 30 days to respond, and could either file a motion to dismiss or answer the complaint, which would then prompt a discovery period, during which time depositions will be taken. Next would come a round of briefings several months later, before any potential trial.

“There’s nothing very sexy on the horizon, and litigation can go in lots of different directions depending on how the defendants respond,” Roper said.

State Rep. Dan Frankel (D-23rd Dist.), co-chair of the LGBT Equality Caucus, said that the court case may be the most expedient way to bring marriage equality to Pennsylvania, considering the legislative stalemate on issues such as the LGBT nondiscrimination legislation, of which he is lead sponsor.

“The majority of Pennsylvanians, who support rights for the LGBT community, are not being heard in state government right now,” he said. “I’d like to believe we could return to session and vote on a bill to protect Pennsylvanians from discrimination and a bill promoting marriage equality before the end of the year. But the Pennsylvania legislature seems to lag behind the public — not by years, but by decades — so, unfortunately, this court case may be the quickest way to full equality for our LGBT residents.”

Roper said the PA ACLU recently hired a community organizer who will lead a public-education campaign around the importance of marriage equality, an effort that will go hand-in-hand with the lawsuit.

“We are not filing for an immediate emergency motion to change the law,” Roper said. “It’s important for the court to hear basically every reason why this is important and why they don’t have any reason to oppose the freedom to marry — other than disapproval of the lesbian and gay lifestyle, and that is not enough. So we don’t expect this to be over in a month or six months; it’s really important to educate the court while we’re educating the public about how this affects people and why equality is necessary.”

To view the full complaint, visit www.aclupa.org/downloads/Whitewoodcomplaint.pdf.
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JordanGwendolynDavis
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July 12, 2013
I'll always remember how gaga everyone was over Murphy and how much disdain there was among people who were either LGBT and/or SEPA residents towards Kane. In fact, I will always remember I was one of the handful of people at Liberty City's spring endorsement meeting to push for Kane over Murphy. Now, I hope that I can hear some "you were right, Jordan".

And since it is apparent our AG does NOT view our constitution as toilet paper, may I suggest that she look into finding transgender discrimination as under the umbrella of sex discrimination. Currently, Article 1, Section 28 of PA's constitution states that "Equality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the individual." Furthermore, the PA Human Relations Act and PA Fair Educational Opportunities Act, while not protecting sexual orientation or gender identity specifically, does protect sex. Both do not define sex at all.

Now, here's a question for you legal eagles out there (I'm not an attorney, but I can read plain English). Given the fact that the federal government recognizes discrimination against transgender individuals as sex discrimination in various arenas (ie: Title IX, EEOC), might it be prudent for the attorney general to declare discrimination against transgender individuals to be illicit under the umbrella of sex discrimination?