Updated, 6:30 p.m. EDT
PHILADELPHIA — Pennsylvania’s elected attorney general said Thursday that she will not defend a 17-year-old state law effectively banning same-sex marriage from a legal challenge in federal court, meaning the task will be left up to Gov. Tom Corbett.
In a brief statement to reporters and a small crowd of supporters at the National Constitution Center in Philadelphia, Attorney General Kathleen Kane said she cannot ethically defend the constitutionality of Pennsylvania’s marriage law, and that she believes it to be unconstitutional.
“Today, the attorney general chooses to protect all those without high-priced lawyers, all those who suffer discrimination and inequality, those thousands of families who have been denied of the dignity and respect that the constitution protects and guarantees in marriage equality,” Kane said. “Today we represent everyone who does not have representation.”
Kane, a Democrat who supports same-sex marriage, said the state and U.S. Constitution each stress equal protection under the law.
“It is our duty, each and every one of us … to protect the equality of all men and women in this commonwealth,” she said.
The job of defending the law now falls to Corbett, a Republican who opposes same-sex marriage. He and Kane were both named in a lawsuit filed in federal court Tuesday seeking to legalize same-sex marriage in Pennsylvania and require the state to recognize the marriages of same-sex couples who wed in other jurisdictions.
Corbett has not said whether he will fight the lawsuit, but his general counsel, James Schultz, attacked Kane in a statement.
“We are surprised that the attorney general, contrary to her constitutional duty … has decided not to defend a Pennsylvania statute lawfully enacted by the General Assembly, merely because of her personal beliefs,” Schultz said.
Longtime lawyers for the state Legislature said they could not think of another time when an attorney general refused to defend a state law because they questioned its constitutionality. Meanwhile, House Speaker Sam Smith, R-Jefferson, and 23 other House Republicans issued a letter to Kane, saying they were troubled by her decision and urged her to reconsider. Still, no one issued an immediate threat to seek a court order forcing Kane to defend the lawsuit.
Under Pennsylvania law, it is the attorney general’s duty to defend the constitutionality of state laws. But the law 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.
The Office of General Counsel, which is under the governor, is accustomed to handling the state’s legal affairs and routinely hires outside lawyers to either defend state laws or prosecute lawsuits.
For instance, the office is helping in the defense of Pennsylvania’s year-old voter identification law and it handled Corbett’s anti-trust lawsuit, now thrown out of federal court, seeking to undo the NCAA sanctions against Penn State relating to the Jerry Sandusky child sex abuse scandal.
Pennsylvania is the only northeastern state that does not allow same-sex marriage or civil unions, and Kane’s stance is unlikely to change opinions in a Republican-controlled Legislature where resolutions to insert a constitutional ban on same-sex marriages have made more progress in recent years than bills to legalize them.
The state Republican and Democratic parties quickly tangled over Kane’s position. GOP chairman Rob Gleason attacked Kane as “blatantly politicizing” the attorney general’s office, while Democratic Party chairman Jim Burn applauded her “courageous and firm stand against a law with little merit.”
Trends in Pennsylvania show increasing support for same-sex marriage. A January poll by Quinnipiac University of 1,221 registered voters found 47 percent support it and 43 percent oppose it, with voters ages 18 to 34 supporting it, 68 percent to 25 percent.
Lawyers in the case believe it is ultimately bound for the U.S. Supreme Court, probably along with similar cases 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.
It was not, however, prompted by the high court’s pair of decisions three weeks ago that delivered two victories for same-sex marriage supporters.
Pennsylvania’s 1996 state law defines marriage as a civil contract in which a man and a woman take each other as husband and wife. The state also does not allow civil unions or recognize same-sex marriages from other states where it is legal.
The American Civil Liberties Union, which is co-counsel in the lawsuit, welcomed the decision.
“This is a huge boost,” said Pennsylvania staff attorney Mary Catherine Roper. “You’ve got the chief law enforcement officer of the commonwealth saying, ‘You’re right. This is not legal.’ I think it’s a sign that things are changing.”
The plaintiffs in the lawsuit are a widow of a woman who died in May after they were legally married in Massachusetts, 10 couples and one of the couples’ two teenage daughters. The group includes four couples who were legally married in other states. Same-sex marriage is legal or soon will be in 13 states.
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