Now that the US Supreme Court has ruled on the Proposition 8 and DOMA cases in ways that were favorable to same-sex marriage but left unresolved the question of whether bans on such marriages were unconstitutional, as expected new cases are being filed at the state level that go to the heart of the matter. About 14 such cases are already in the works with more expected and at least one of these cases are expected to reach the Supreme Court fairly soon.
An interesting wrinkle is in Pennsylvania where the state’s Attorney General Kathleen Kane has said that she will not defend the 17-year old state law banning same-sex marriages.
In an interview, Kane — who endorsed the idea of gay marriage while running for her post last year — said she was obligated to drop the case “because I endorse equality and anti-discrimination laws.”
“If there is a law that I feel that does not conform with the Pennsylvania state constitution and the U.S. Constitution, then I ethically cannot do that as a lawyer,” she said.
The governor of the state supports the ban and his general counsel will likely take on the job of defending the law.
The move by Kane follows in the steps of California refusing to defend Proposition 8 (leaving it to the proponents of that measure to step in) while in the DOMA case the Obama administration refused to defend the law, and the Republican party in the House of Representatives had to do so. The Supreme Court said that the Proposition 8 supporters did not have standing while the House of Representatives did.
The US legal system is based on a adversarial system in which the executive branch is expected to defend laws that have been properly passed. There are concerns that allowing the executive to choose to not defend certain laws gives the executive branch a new kind of veto power over laws that it does not like, and creates a hole in the system, since it remains ambiguous as to who has the standing to argue the position that the executive has declined to do. One could make the case that the Pennsylvania AG’s personal views (and those of similar executive branch people) are immaterial and that she is obligated by virtue of her position to defend laws that have been properly passed.
But it is not clear that this would be a good thing for opponents of same-sex marriage either. Would they really want their law defended by someone who opposes it and does a half-hearted job, effectively sabotaging their case?