AG Kathleen Kane addresses the marriage-equality movement
by Jen Colletta
May 08, 2014 | 1270 views | 1 1 comments | 16 16 recommendations | email to a friend | print
Pennsylvania Attorney General Kathleen Kane was the recipient of Equality Forum’s Distinguished Equality Award, presented Saturday at the organization’s International Equality Dinner. Prior to accepting the award, Kane, who last summer announced she would not defend the state’s ban on marriage equality — and who was the subject of an impeachment hearing this week in part for that action — sat down with PGN to discuss Pennsylvania’s LGBT-rights progress.

PGN: Prior to your election, did you anticipate that marriage equality would become the issue that it currently is in Pennsylvania?

KK: Yes, because I knew the Windsor decision was out there and eventually it would fall during my administration. Quite frankly, I’m happy that it did because then it gave me the opportunity to shape the policy that our office had going into the aftermath in Pennsylvania from the Windsor decision.

PGN: Can you talk about the conversations that took place prior to your announcement that you would not defend the state’s ban on marriage equality in Whitewood?

KK: We knew that eventually Windsor would be coming down and we went through all the different scenarios of what the Supreme Court could and could not do and then how it affected Pennsylvania law. We have a great civil division and they deal with constitutional issues all the time, although we haven’t seen this magnitude in Pennsylvania in a very long time. So we went through with them for weeks and weeks — “If this is the decision, then how does that affect Pennsylvania?” — and we went through all the different scenarios and how then we would react as an office. We also then went to our own legal decision of what was happening and we all determined the law to be wholly unconstitutional. According to the Pennsylvania Constitution and the Supreme Court decision, this law could not be upheld. I was hired as the commonwealth’s lawyer, and as a lawyer, I have to follow the rules of professional conduct. In deciding that we felt that DOMA was unconstitutional in Pennsylvania, we had to then turn to the rules of professional conduct. What do we do in this situation because we are charged with representing the governor but also charged with protecting, obeying, defending the constitution? When those two clash, what do you do then? So the rules of professional conduct very clearly laid out that if you have a material difference with your client — and in this case, that was the essence of the case: unconstitutional versus constitutional — you cannot take it. We delegate cases all the time back and forth, between the governor’s office and our office. They have 400 lawyers, we have 200 lawyers. It’s a daily occurrence. So the rules dictated we had to give that case to them and say, “We cannot defend this according to the rules, you need to find your own representation.” After that, I lost track, but I was sued six or seven times. We were let out of every single case because the court ruled we didn’t actually enforce the marriage statute in Pennsylvania. But we are still in one case. And in Whitewood, we’re going to be asking the court for leave to submit an amicus brief. That’ll be our contribution to the issue of constitutionality.

PGN: What were the subsequent days like for you and your office in terms of public feedback about your decision? Best and worst?

KK: The best was the people. The best was the tremendous outpouring from not just the LGBT community but people whose neighbor or cousin or son happens to be in a same-sex relationship. You wouldn’t believe the scope this has reached — not just this community but all those who love them. Their outpouring has been unbelievable. They made T-shirts that say “Team Kathleen”; I have it in my office. And they come up to me at stores everywhere I go and thank me for stepping out. My response is, “That’s my job, I just did my job.” And their response is, “Somebody in your position didn’t have to do it that way, you could’ve done it quietly but you took a stance.” On the other hand, my impeachment hearing is scheduled for Tuesday, 9 a.m.

PGN: Did you ever see the impeachment effort led by state Rep. Daryl Metcalfe to be serious?

KK: Here’s my problem with this. Any time you waste taxpayer time and money putting forward a personal or political agenda in the capitol, on our time, that is a serious issue to me. They’re wasting time and money. The legislator who brought the impeachment resolution forth does not understand the law. He does not understand what was actually done. The basis of the impeachment is that I’m insubordinate. First of all, I’m an independent agency so that falls. But he just doesn’t understand the law. He’s wasting time and money. We have so much to do. We have child predators, we have drug cartels, everywhere we have things to do but now he’s making us go and defend a legal opinion. So it’s annoying to me. And I hope it doesn’t go anywhere because I think for the most part the legislature understands that the law is the law and we in Pennsylvania have to follow it.

PGN: Do you have any inkling as to which of the current marriage-equality challenges stands the best chance of bringing marriage equality to the state?

KK: I don’t. I do leave that up to the court. As advocates, we can argue our position and the other side argues theirs, and then it’s up to the court. So no, I’m not sure where they’re going to go. My personal feeling is I feel a wave of people understanding we cannot accept inequality in any form. It’s always failed, in Pennsylvania and in this nation. It’s failed in gender — you and I would not be here today — it failed in race, religious beliefs and hopefully it will then fail in sexual orientation. Once you say, “Well, one group is not equal to the next,” that affects our freedom. We are not truly a free nation then because inequality does not allow you the full protections the constitution guarantees. If something takes that away from certain people, that must fail. I don’t care what the issue is. Substitute gender, substitute religion, substitute sexual orientation. It must always fail.

PGN: If the court legalizes same-sex marriage in Pennsylvania, how do we make sure the public and the legislature ultimately get on board?

KK: That’s a great question. Equality PA has been going to the hearts and minds of people and letting them know there is nothing to be afraid of. These people are good neighbors, business people, doctors, they’ve raised great children. They’re changing hearts and minds. But we also need to pass House Bill 300, the nondiscrimination bill. It is appalling that you can lose your job or home because of who you like or love. Appalling. The legislature has work to do. The governor has work to do. Our office will safeguard the constitution every chance we get. And there are great organizations invested in LGBT rights and equality, civil rights, who will go out and educate the public.

PGN: There is an effort right now to have state and federal probes into the death of local transwoman Nizah Morris. If DA Seth Williams refuses to meet with Morris advocates, would you consider meeting with them to hear their concerns?

KK: They have written us two letters. Our authority comes from the Commonwealth Attorneys Act. We cannot look at that case, we cannot investigate, we cannot prosecute, because we do not have original jurisdiction over that case. And unless and until a DA of any county refers it to our office, either on conflict of interest or lack of resources, we can’t take the case. And we did let them know that.

PGN: You spoke earlier about gender inequality. Has it been challenging or empowering for you that you are the state’s first elected female attorney general?

KK: I think it’s been both. There are people out there who are not ready to have a female in the position I’m in. But the voters spoke and I am the dually elected attorney general. I have to go forth and do the best job I can. I love the law. I love justice. But it is empowering because it’s incredible the amount of women who come and say, “You’re an inspiration. If you can do it, I can do it.” We need more of that. We need more women in government. And I am hopeful that I can be the sickle that clears the path a little bit for them because it’s time.

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May 10, 2014
Section 205 (a) (4) of the Commonwealth Attorney's Act clearly states that your office can initiate a proceeding, if more likely than not, the DAO has refused or failed to prosecute a case, and it constitutes abuse of discretion. I think the AG is stonewalling on the Nizah Morris case.

You can't get married when you are a murder victim, Mrs. Kane. There is an epidemic of violence against transgender women, especially of color, and while marriage equality is a good thing, it does not keep certain parts of the LGBT community safe. You have the power to get justice for our community.