I got a text earlier today from a friend, wondering if the State’s DOMA law is dead because PA AG Kane has said that she will not defend the law. Opponents of same-sex marriage claim that is why they lost in California- because the CA AG and Governor refused to defend the law.
Pennsylvania Attorney General Kathleen Kane today announced that her office will not defend the state against a lawsuit demanding that same-sex couples be permitted to marry here.
“I cannot ethically defend the constitutionality of Pennsylvania’s version of DOMA,” she said, referring to the Defense of Marriage Act. “I believe it to be wholly unconstitutional”
But PA isn’t CA, and that wasn’t the reason the anti-gay folks lost in CA anyway. The suit filed against PA lists a number of state and county officers, so there should be no problem with standing nor finding someone to defend the PA DOMA law.
Some may think that’s a bad thing, but I don’t at all. The case being heard before a judge in PA is the first huge step towards overturning the Keystone State law. No good reason for the State to discriminate against same-sex couples can be articulated, and that will come out in the testimony. Winning the case will create case law and the decision will help other cases in the future.
I want to make three additional points in this post.
California i an unusual state in that citizens have a very easy method for altering their State Constitution via the initiative process. It is possible to argue this is good or bad, but no matter how you see the process, it doesn’t allow the State Constitution to be emended in a way that is unconstitutional. In other words, citizens can introduce any initiative, and it can pass the vote. But, if the effort is unconstitutional (The US Constitution) then it will be struck down in the courts. That is precisely what happened in California. In an ideal world, citizens wouldn’t introduce unconstitutional initiatives in the first place, but we live in a highly politicized world that is far from ideal.
When same-sex marriage opponents claim that the state officials failed the people of California because they refused to defend the initiative upon appeal, they fail to mention that this was about an appeal. A Court had found the initiative unconstitutional. Opponents to same-sex marriage could only hope that a higher court would reverse the decision. But if the state had appealed the decision, it would only have cost California an enormous amount of money for nothing. The state officials acted in the best interest of the state by refusing to waste huge sums of money defending an unconstitutional initiative.
Consider the House GOP which originally claimed the case would cost about $500,000, but have authorized $3 million to pay their legal bills! At a time when the GOP is screaming about unnecessary spending, they have wasted 3 million!
Opponents like to call out what they say are activist judges, but the reality is that judges are doing exactly what they are intended to do, and that is determine the constitutionality of laws, amendments, and initiatives. This is not to say, that the judicial system is free from politics, but it is doing exactly what it ought to do in our democratic system of checks and balances. We don’t want to think about the complexity of decisions, which sometimes prompt more questions than they answer, but these detailed analysis of the legal questions form the basis of understanding allowing other judges as well as those who craft laws a guide for what is and isn’t within the constitutional bounds.
About Kane’s Decision
Kane can not be criticized for failing to defend the People of Pennsylvania or Pennsylvania Law. Just because she says she won’t defend the State’s DOMA, doesn’t mean that others won’t agree to defend it. Now that won’t stop the anti-gay movement from blaming her, but it will be undeserved.