Attorney General can’t decide which laws to enforce and defend, she must defend all
By Duane D. Milne, Special to The Times
State Rep. Duane Milne
Pennsylvania State Attorney General Kathleen Kane has apparently decided to approach her elected post as if it was one of the “Choose Your Own Adventure” books that were popular in the 1980s and 1990s.
Kane is now selectively choosing which duly enacted Pennsylvania laws she will defend against challenges of constitutionality, and which simply to ignore. Regardless of whether one agrees or not with the substance of the current law, the reality is that its original approval took place in conformity with proper constitutional processes.
The matter most immediately in question centers on Kane’s recent pronouncement that she will not defend the Commonwealth’s law that currently prohibits gay marriage, a law being challenged in a lawsuit filed the American Civil Liberties Union (ACLU).
Kane, a named defendant in the ACLU’s case, has argued that she is morally opposed to the law and has deemed it unconstitutional. Unfortunately for her, she is the attorney general, and not a Supreme Court judge, and claims of authority to rule on the constitutionality of a law fall outside her job description – a public office which she voluntarily sought.
The responsibilities of her office are clearly laid out in the Commonwealth Attorneys Act of 1980. The act in no way affords the attorney general the unilateral right to determine the constitutionality of state law, but in fact makes it the duty of that office to defend the state against any such challenges.
Kane’s decision is a case of playing politics with a hot-button issue, but the politics of the marriage equality debate are not germane here. The criticism being put forth is for not upholding “the duties of her office with fidelity” as she swore to do in January.
While understandably it might be a difficult position, Kane must defend the law despite her personal feelings. She is entitled to personal opinions as a citizen, but as the duly elected attorney general, she also incurs an obligation to defend the laws that were created by an elected legislature and signed by an elected governor.
Laws can and should be changed at times as our democracy grows and evolves, but the way to do that is either through a constitutional challenge before the judiciary or to pass new legislation. Kane’s office does not write or interpret laws; it enforces them. That is the job she was elected to perform.
In this case, counsel for Gov. Tom Corbett will likely defend the current law – one he supports. But if the governor happened to agree with Kane’s ideology, who would defend the laws of our state? This is a slippery slope that allows individual elected officials to pick and choose which laws to uphold and defend. We no longer need the democratic process and our three branches of government if we allow books of law to become “Choose Your Own Adventure” books. And anarchy begins when the rule of law ends.
Ironically, Kane herself agreed with this very sentiment in 2012 when she was campaigning for her current post. At that time, she declared it would be a “dangerous proposition” for the attorney general to pick and choose which laws to enforce as she disagreed with one of her political opponents. Her opinion might have changed, but one wonders if her motive remains the same – to garner as much political support out of a statement as possible.
The Office of the Attorney General needs to defend the state in this legal challenge, because it has an obligation to do so. If Kane is so morally opposed, she can always have one of her deputies be in charge of the case. Either way, her office must defend the state.
Unfortunately, there are provisions in current law that allow an attorney general to pass a case along to the governor’s counsel. We in the legislature need to examine these provisions, because they are unwise and because political pandering cannot be a substitute for sound legal reasoning.
Duane Milne is the State Representative for the 167th District in Chester County.
There is a big difference between enforcing a law and defending it in court. Take the Defense of Marriage Act (DOMA): It was transparently unconstitutional, since it set up differing legal standards for legally married Gay and Straight couples. That’s why the Obama Administration chose not to DEFEND it in court. This doesn’t mean that the law was not enforced while it was still on the books.
Similarly, Kathleen Kane will continue to enforce Pennsylvania’s ban on marriage for Gay couples for as long as the law is on the books. But in terms of its constitutionality, why should she be forced to defend in court something that she knows is indefensible, especially given the Supreme Court’s decisions on DOMA and Prop. 8?
Those of us who support marriage equality for law-abiding, taxpaying Gay couples didn’t really have a choice but to “target” all the piecemeal, state-by-state bans, didn’t we? The Supreme Court could have issued a comprehensive ruling requiring Gay and Straight couples to be treated equally, at ALL levels of government, but instead they chose to punt on the some of the details.
So what now? Most of the legal benefits of marriage come from the federal government. Take survivor benefits under Social Security, for example. Legally married Gay couples in Iowa are now entitled to those benefits, but suppose one of those couples relocates to West Virginia, which has a statutory ban on same-sex marriage. Does the state have the power to forcibly annul that marriage? And if so, does the couple now LOSE those federal benefits?
Don’t fault US for continuing this fight. The Supreme Court left us no choice.