Kane's Views on Same-Sex Ban Fuel Suit

By Smeltz, Adam | Tribune-Review/Pittsburgh Tribune-Review, August 9, 2013 | Go to article overview
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Kane's Views on Same-Sex Ban Fuel Suit

Smeltz, Adam, Tribune-Review/Pittsburgh Tribune-Review

Kathleen Kane's refusal to defend the Pennsylvania ban on same- sex marriage might not keep the new attorney general out of a pending state court fight over gay rights.

Instead, legal analysts say her public declarations calling the ban unconstitutional could help the American Civil Liberties Union's lawsuit against her, Gov. Tom Corbett and Health Secretary Michael Wolf to overturn the law.

"It's a statement by the highest official in the state who's charged with enforcing the law. That's not nothing," said John G. Culhane, a law professor at Widener Law School in Wilmington, Del. He said ACLU attorneys could use Kane's assessment in larger arguments against gay marriage restrictions.

Former state Attorney General Ernie Preate went further, suggesting the ACLU "certainly" will use statements by Kane in litigating the case.

"They'd be fools not to raise it. She's the chief defendant of constitutionality of statutes by law, and she called it (the marriage ban) unconstitutional," said Preate, a Scranton lawyer who was attorney general from 1989 to 1995. "I'd be waving her statement. I'd be calling her as a witness."

Kane spokesman Joe Peters said she did not corrupt the case because her public statements did not delve into evidence or details. He said Kane was acting simply to educate the public in "a watershed event."

"This is very different from commenting on trial specifics," Peters said. He argued Kane's first oath is to defend the state and U.S. constitutions, and that "she can't defend something she doesn't believe is constitutional."

Reached on Friday, ACLU senior staff attorney Mary Catherine Roper would not discuss case strategy or the legal nuances of Kane's position.

Still, "it's great to have a public official who stands up for fairness," Roper said. "It means a lot to our clients personally and to the lawsuit generally that the top law enforcement official in the commonwealth thinks that we've got it right. That's a terrific boost, I think, for people in Pennsylvania."

The ACLU joined a Philadelphia law firm -- Hangley, Aronchick, Segal, Pudlin & Schiller -- to sue state officials July 9 over the statute that defines marriage as a union of one man and one woman. The rule, on the books since 1996, also forbids recognition of same- sex marriages licensed in other states.

A June 26 decision by the U.S. Supreme Court undermines the prohibitions, according to the ACLU complaint filed on behalf of 23 plaintiffs.

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