Pennsylvania attorney general refuses to defend gay marriage ban

Just as the government of California decided not to defend Proposition 8, and the Obama Administration decided not to enforce the Defense of Marriage Act long before the Supreme Court ruled on it, the attorney general of Pennsylvania has elected not to defend that state’s law against gay marriage from a legal challenge.  The Washington Post reports:

Pennsylvania attorney general Kathleen Kane will not defend the state in a federal lawsuit filed this week challenging the constitutionality of the state’s ban on same-sex marriage,  lawyers involved in the case said.

The American Civil Liberties Union filed suit Tuesday on behalf of 23 Pennsylvania residents, including 10 couples, a widow and two children. The Philadelphia Daily News first reportedKane’s decision, which she is expected to announce Thursday.

The decision was confirmed by lawyers involved in the case, who asked not to be identified because Kane had not made a public announcement.

Kane is named as a defendant in the suit, along with the state’s governor Tom Corbett (R-Penn.). Kane is the first woman and the first Democrat ever elected to the position of Pennsylvania state attorney general, which became an elected office in 1980.

It’s still possible for third parties to step forward and mount a legal defense, but citizens have a right to expect state and federal officials lavishly funded with their taxes to enforce and defend laws passed by their duly elected representatives.  This business of a few elites deciding to ignore laws they don’t like is getting out of hand.  Does this work for other issues as well?  Can a motivated few get rid of other laws they don’t like by electing administrations that refuse to defend them in court?  Would it be okay with everyone if an Attorney General chose not to stand up for a duly enacted pro-gay marriage law in court?

It’s one thing when gay marriage proponents are able to win through the electoral and legislative process.  Whether you agree with their position or not, that’s a fair process, which properly recognizes the importance of representative government in such a momentous decision.  But the Pennsylvania lawsuit is one of several coming in the wake of the Supreme Court’s DOMA decision which are expressly designed to short-circuit representative government, as the New York Times conceded on Wednesday:

The legalization of same-sex marriage has primarily come through the political process, with lawmakers and voters approving it in six states in just the past year. But earlier victories were achieved through state courts, in states including Massachusetts and Iowa. The A.C.L.U. acknowledged that it was bringing suit in Pennsylvania because overturning the state’s gay marriage ban in the Republican-controlled legislature is a near-term impossibility.

Pennsylvania’s law defines marriage as between a man and a woman — similar to the federal law struck down by the Supreme Court — and it denies recognition to same-sex marriages legally performed elsewhere.

Gay-marriage opponents say using the courts undermines the will of the voters. Michael Geer, president of the Pennsylvania Family Institute, which opposes same-sex marriage, said that in 1996 when the state passed its law, fewer than 25 out of some 240 legislators opposed it. “The fact the A.C.L.U. is turning to the courts to try to redefine marriage takes it out of the hands of the people,” he said.

The A.C.L.U. plans to file suit soon in two other states, Virginia and North Carolina. In Michigan, a federal judge blocked a state law denying domestic partner benefits to public employees, citing the Supreme Court rulings. And on Wednesday the A.C.L.U. and Lambda Legal plan to seek summary judgment in Illinois in two year-old gay marriage cases.

“You’ll have these things filed all over the place,” said Frank Schubert, political director of the National Organization for Marriage, which opposes same-sex marriage.

It’s a strategy ultimately designed to manipulate the Supreme Court into imposing gay marriage nationwide by judicial fiat:

Supporters believe that enlarging the map of states that allow same-sex marriage will ultimately influence the Supreme Court when it next takes up the issue of a constitutional right to same-sex marriage, as it is expected to do in the next few years. Activists are pressing legislatures in three more states that appear ready to pass measures legalizing same-sex marriage: New Jersey, Hawaii and Illinois.

“We think what the map of the country looks like is going to make a big difference to how the issues in the case feel to the Supreme Court,” Mr. Esseks said. “Will we have the 13 states plus D.C., or will we be at 20 or more?”

Opponents are fighting back under the same logic. They see an opportunity to add Indiana to the 29 states with constitutional bans on same-sex marriage.

“Our challenge is to let the court see they’re not going to get away with this without a massive public revolt,” Mr. Schubert said.

Both sides are focusing on one man, Justice Anthony M. Kennedy, the frequent swing vote on the court, who wrote the 5-to-4 majority opinion striking down a key part of the federal Defense of Marriage Act. Justice Kennedy did not say whether there was a constitutional right to same-sex marriage, leaving it up to individual states. But he defined the terms of battle.

What good is a public revolt going to do you, Mr. Schubert?  There is no recourse from the ultimate power of the Supreme Court.  The quest to influence god-emperor Anthony Kennedy’s thinking with legislative victories won’t get very far if the government colludes with plaintiffs to arrange lower-court deletion of those victories.  In an age when we hear much talk about respecting the “will of the people,” here we have an issue where the “right” answer has been pre-ordained, and the people must be re-programmed to accept it, by any means necessary.

Gay-marriage proponents seem oddly insecure about their ability to win the right way, through elections and legislative victories, since by any objective measure they’ve been doing very well in that arena.  I’m not a wholehearted supporter of the Pennsylvania law under challenge, as it prohibits civil unions, which I’ve always supported.  I’ve never been in favor of arbitrarily denying simple legal considerations that any consenting adults should be able to arrange between each other – to take one example from USA Today’s description of the Pennsylvania case, why shouldn’t you be able to designate anyone you please to receive automatic power of attorney for health care decisions?

But the right way to make law is through the legislature.  It’s hard work, changing enough minds to influence representatives, or replace them in elections.  Winning the favor of a few administrative officials, judges, and swing Justices is much easier, but it’s not the right way to handle an issue of this gravity.