On January 15, 2013, newly inaugurated Attorney General Kathleen Kane took an oath to defend the Constitution of the Commonwealth of Pennsylvania. On July 11, 2013, Kane made a bold and principled move that demonstrated that she is one of the few publicly elected Pennsylvanians that actually understands our Constitution.
In a public statement on Thursday, Kane said, "I cannot ethically defend the constitutionality of Pennsylvania's version of DOMA where I believe it to be wholly unconstitutional," adding, “It is my duty under the Commonwealth Attorneys Act whenever I determine it is in the best interest of the Commonwealth to authorize the Office of General Counsel to defend the state in litigation. Additionally, it is a lawyer's ethical obligation under Pennsylvania's Rules of Professional Conduct to withdraw from a case in which the lawyer has a fundamental disagreement with the client."
So Kane didn’t kill the case. Not at all! Instead, she rightfully disclosed a conflict of interest due to a difference of opinion, and passed the case along to Gov. Corbett.
How many politicians do you know that disclose a conflict of interest? You can count that number on one hand.
Kane also didn’t sabotage the case by accepting it and then giving it to a lackey – an awful suggestion that has been made by some.
Instead, she took the high road and essentially recused herself and her office from handling the case.
Kane’s decision is making national news. But it shouldn’t. She’s hardly the first attorney general to refuse to participate in a case involving this or any other hotbed social issue.
Back when California Gov. Jerry Brown was the state’s Attorney General, he refused to defend California’s anti-gay-marriage measure, Proposition 8. Just last month, the U.S. Supreme Court addressed the case, ruling that those who defended Proposition 8 didn’t have legal standing to do so.
Time will show very soon that PA’s DOMA law is unconstitutional, too – the same way that Loving v. Virginia declared that banning interracial marriages was illegal.
So it’s in the governor’s hands at this point. If he believes the law is constitutional, he has every right to defend it, especially since he opposes gay marriage. Credit Corbett for one principled stand, as well. He has never permitted poor polling numbers to influence his decisions. So I expect he will fight it. And that’s his prerogative and consistent with his views.
But for the sake of Pennsylvania – the only state in the Northeast to have such a ban – I hope he doesn’t challenge the new federal decision. Quoting Kane: "It is our duty, each and every one of us, to protect the constitutionality, to protect the rights and dignity of others, and to protect the equality of all men and women in this Commonwealth."
For demonstrating that she understands our Constitution, as well as ethics and conflict of interest disclosures, we should be congratulating our independent Attorney General.
Contact John Featherman at firstname.lastname@example.org