HARRISBURG, Pa. — The elected official tasked with defending state laws has previously said she supports same-sex marriage, but now faces a decision about whether to defend a Pennsylvania law that bans it.
State Attorney General Kathleen Kane, the first Democrat to be elected to that position, was scheduled to talk to reporters Thursday at the National Constitution Center in Philadelphia. So far, she has been silent on the first known legal challenge seeking to overturn a 17-year-old law effectively banning same-sex marriage in Pennsylvania, the only northeastern state that doesn’t allow it or civil unions.
The lawsuit, filed Tuesday in federal court in Harrisburg, seeks to make Pennsylvania the 14th state to allow same-sex marriage by asking a federal judge to prevent state officials from stopping gay couples from getting married.
Lawyers in the case believe it is ultimately bound for the U.S. Supreme Court, probably along with similar cases that are cropping up in other states, and could force the high court to rule on the core question of whether it is unconstitutional to deny same-sex couples the right to marry.
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The lawsuit names as defendants Gov. Tom Corbett, a Republican who opposes gay marriage, and Kane, who said during her campaign last year that she believes gay couples should be able to marry.
Pennsylvania law says it is the attorney general’s duty to defend the constitutionality of state laws. But it also says the attorney general may allow lawyers for the governor’s office or executive branch agencies to defend a lawsuit if it is more efficient or in the state’s best interests.
That means Corbett could end up defending the law in Pennsylvania, where polls show the public is increasingly accepting of the concept of same-sex marriage. Corbett’s office declined to comment Wednesday on whether he will defend the law.
Corbett, who faces a run for re-election next year with weak job approval polling numbers, will be in a tricky political situation, said Christopher Borick, a pollster and political science professor at Muhlenberg College in Allentown.
“Being forced to fight for a state policy that is going counter to a majority of what Pennsylvanians think is not necessarily the place you want to be in an election year,” Borick said.
However, not defending the law could hurt Corbett’s standing among members of his Republican base, the majority of whom oppose same-sex marriage. Those who vote in a midterm election, like 2014, are likely to be older, more conservative and more divided on the issue, Borick said.
The case was assigned to U.S. District Judge John E. Jones III, a Republican and an appointee of former President George W. Bush who is perhaps best known for his handling of one of the biggest courtroom clashes between faith and evolution since the 1925 Scopes Monkey Trial.
In that 2005 decision, Jones barred the Dover Area School District in southern Pe nnsylvania from teaching “intelligent design” in biology class and said its first-in-the-nation decision to insert it into the science curriculum violated the constitutional separation of church and state. He called it “a religious view, a mere re-labeling of creationism, and not a scientific theory.”
The American Civil Liberties Union helped argue the case against Dover, and it is co-counsel in the lawsuit seeking to overturn a 1996 state law that defines marriage as a civil contract in which a man and a woman take each other as husband and wife.
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