Same-sex marriage (SSM) In Pennsylvania
Part 2: Officials won't defend discriminatory laws.
Polls show public support. 4 SSM licenses sold.
Some state officials are refusing to defend state laws:
Traditionally, when state laws are challenged in court, senior state officials are expected to defend those laws. However, there has been a recent political trend in which top officials are refusing to defend existing laws that deal with socially divisive statutes that they believe are unconstitutional. One high profile case happened in California where a Federal District Court determined that Proposition 8 -- a citizen initiative to ban same-sex marriage -- was unconstitutional. Both the Governor and the Attorney General refused to defend the marriage law. ProtectMarriage, the organization that had originally promoted Prop. 8, was allowed to appeal the case to a panel of judges at the 9th U.S. Circuit Court of Appeals, and later to the whole court. They lost both times, and appealed the case to the U.S. Supreme Court. That Court ruled that ProtectMarriage did not have standing, either before the Court of Appeals or the Supreme Court. Thus, the decision of the Court of Appeals was vacated, and the decision by the District Court was held to be valid.
According to the Washington Post, other state officials are also refusing to defend state laws:
"In Hawaii, Gov. Neil Abercrombie (D) filed court papers calling that state’s gay marriage ban unconstitutional.
And in Indiana, Attorney General Greg Zoeller (R) has come under fire from conservatives for refusing to defend a portion of that state’s immigration law. He said a recent Supreme Court ruling on a similar Arizona provision means that Indiana’s law is unconstitutional. 1
The moves have put officials in both parties under attack from opponents, who accuse them of basing their decisions on political, rather than legal, motives. As a result, groups on both sides of the spectrum are laying plans to target the officials in upcoming elections." 2
On 2013-JUL-11, Pennsylvania Attorney General Kathleen Kane, (D, 47) refused to defend the state's SSM ban in the case "Whitewood v. Corbett." It has been filed at the U.S. District Court for the Middle District of Pennsylvania -- a federal court. Kane believes it to be "wholly unconstitutional" She had expressed her viewpoint earlier, on the day after election day when she had said:
"It’s the role of the attorney general to be an independently elected voice. People see politics as a close-knit, good ol’ boy network, and I want to change that starting Day One." 1
Criticism of Attorney General Kane's refusal to defend the state's "marriage inequality" statute:
The National Organization for Marriage (NOM) -- a group whose main function is to work tirelessly to prevent marriage by same-sex couples -- re-published an article from The Mercury in the NOM blog. It is an Op-Ed titled "Pennsylvania Attorney General Ignores 'Rule of Law'." 8,9 Author of the Op-Ed is Randall Wenger, the chief counsel for the Pennsylvania Family Institute in Harrisburg, PA. He also published the article in the Institute's "The Capitol Watch." 10
The article said in part:
"Attorney General Kathleen Kane’s decision to forgo defending Pennsylvania’s Defense of Marriage Act has undermined the rule of law in Pennsylvania. ..."
"What unites us, however, as Pennsylvanians and as Americans is a commitment to the process by which these political disputes are resolved. Regardless of what side of a controversy we’re on, there is solace in the rule of law — the concept that we are all playing by the same rules, and that those rules will not be arbitrarily changed to fit personal or political agendas.
We submit ourselves to this rule of law, and we expect our elected officials to submit themselves to it. This is a fundamental principle of the American republic. Nothing undermines political comity and stability more than when the rule of law is seen as contingent on the whims of politicians.
And yet this state of instability is exactly where we find ourselves in Pennsylvania due to Kane’s abandonment of our commonwealth’s overwhelmingly approved Defense of Marriage Act. Her actions beg the question: Which Pennsylvania laws are actually laws, and which are just suggestions? Only Kathleen Kane knows. ..." 8
On AUG-13, reader Grisha Tigger posted a comment to The Mercury article:
"The Constitution has primacy over any law passed by a legislative body. The AG is supposed to uphold the Constitution first. Kane has understood that PA's DOMA violates several provisions of the Constitution."
Bruce Robinson, the webmaster of this web site, filed the following comment to The Mercury's web site, NOM's blog, and Capitol Watch:
"There is an alternate explanation for Attorney General Kane's action. She looked at the ban on same-sex marriage in Pennsylvania. She also looked at the 14th Amendment of the U.S. Constitution. She probably looked at the U.S. Supreme Court's recent ruling on the Defense of Marriage Act. She concluded that the PA law was hopelessly unconstitutional. Because of her oath of office to defend the U.S. Constitution, she refused to defend the state law. To do otherwise would cause her to violate her oath of office and violate the U.S. Constitution.
Please consider trying to present all sides to issues in the future."
NOM does not seem to review comments before posting them, so Robinson's comment was accepted immediately. The same comment submitted to The Mercury and the Pennsylvania Family Institute web sites were not posted initially because they must first be reviewed. I am curious to find out which comments make it past the review process.
Rob Gleason, Pennsylvania's GOP chairman, issued a statement criticizing the Attorney General. He wrote:
"It is unacceptable for Attorney General Kathleen Kane to put her personal politics ahead of her taxpayer-funded job by abdicating her responsibilities. She is blatantly politicizing the highest law enforcement office in our Commonwealth at the expense of a core responsibility of the Attorney General’s office. ... Pennsylvanians are left with the question, if the Kathleen Kane’s political beliefs are the standard for law enforcement, what law will she ignore next?" 1
Governor Tom Corbett (R) is also a named defendant in the case. Through his general counsel, he will have the state marriage act defended. A.G. Kane said:
"I’m not leaving them high and dry. They have their own team." 1
Public opinion polls:
There has been a continual increase in support for, and decrease in opposition to SSM in recent years:
- 2006: A poll by Franklin & Marshall College 33% of Pennsylvania voters favored allowing SSM.
- 2011-NOV: Public Policy Polling conducted a low resolution poll among only 504 registered voters. The margin of error was ±4.4 percentage points. They found 36% support and 52% opposition to SSM.
- 2013-JAN-29 to FEB-03: Another poll conducted by the Franklin & Marshall College found that 52% favored SSM while 41% were opposed, for a margin of 11 percentage points. Number of persons sampled was 622. The margin of error was ±3.9 percentage points. The increase in support from their 2006 survey is almost 3 percentage points a year, which is similar to many national polls.
- 2013-MAR 08 to 10: Another poll by Public Policy Polling found that 45% of voters favored SSM while 47% were opposed. The poll sampled 504 registered voters and had a margin of error of ±4.4 percentage points. This is an increase of 9 percentage points over 18 months since the 2011-NOV poll. That represents a 6 percentage points per year. This is an unusually high rate of increase in support. PPP reported:
"Seniors continue to be opposed to gay marriage by a 28/62 margin, but voters under 45 support it 58/35, suggesting that it's only a matter of time. ... 'The massive generational gap on gay marriage in Pennsylvania reflects what we see most places,' said Dean Debnam, President of Public Policy Polling. 'Majority support for it is just around the corner'." 3,4
- 2013-JUL-09: PoliticsPA announced the results of their poll among their web site readers. They were asked the question: "Will same-sex marriage be legal in PA? When?" Responses were:
- 46%: Within 5 years.
- 28%: in 5 to 10 years.
- 12%: in 10 to 20 years.
- 4%: more than 20 years.
- 10%: Never. 5
It may well prove to be be increasingly difficult for organizations opposed to marriage equality to collect donations from a public which believes that SSM will arrive in Pennsylvania within a decade.
2013-JUL-24: The first lesbian couple in Pennsylvania marries. More same-sex couples obtain marriage licenses:
On JUL-23, D. Bruce Hanes (D), the Register of Wills in Montgomery County, PA announced that he would act contrary to the text of state law and issue licenses to same-sex couples. He says that the state law is unconstitutional and thus should not be enforced. He apparently based this remarkable decision on the U.S. Supreme Court's ruling in Windsor v. United States which found that the main section of the federal defense of marriage act (DOMA) was unconstitutional. Although Justice Kennedy's ruling was directed at this one federal law, many observers believe that his reasoning could be extracted from the Windsor ruling and applied directly in lawsuits attempting to declare discriminatory marriage laws -- and even anti-SSM amendments to state constitutions -- to be unconstitutional.
Alicia Terrizzi, 45, and Loreen Bloodgood have been together for 17 years. Terrizzi said:
"We've been waiting a long time for this. We're not setting out to be pioneers. We don't think our family is any different than anybody else. [sic]" 6
The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.
- Juliet Eilperin, "Who is Kathleen Kane?" Washington Post, 2013-JUL-11, at: http://www.washingtonpost.com/
- Juliet Eilperin, "State officials balk at defending laws they deem unconstitutional," Washington Post, 2013-JUL-18, at: http://www.washingtonpost.com/
- Thomas Fitzgerald, "Pa. polls show shift on gay marriage," The Philadelphia Inquirer, 2013-MAR-28, at: http://articles.philly.com/
- Support for gay marriage in Pennsylvania on the rise," Public Policy Polling, 2013-MAR-13, at: http://www.publicpolicypolling.com/
- Bryan Magee, "Reader Poll: Same Sex Marriage in PA by 2018," PoliticsPA, 2013-JUL-09, at: http://www.politicspa.com/
- Ivey DeJesus, "Lesbian couple weds, another four same-sex couples apply for marriage licenses in Pennsylvania," Patriot-News, 2013-JUL-24, at: http://www.pennlive.com/
- Craig Andrussier's home page is at: http://www.caweddingceremonies.com
- Randall Wenger, "Op-Ed: Pa. attorney general ignores ‘rule of law’," The Mercury, PA, 2013-AUG-11, at: http://www.pottsmerc.com/
- "Pennsylvania Attorney General Ignores Rule of Law," National Organization for Marriage, 2013-AUG-12, at: http://www.nomblog.com
- Randy Wenger, Pa attorney general ignores 'rule of law'," The Capitol Watch - Pennsylvania Family Institute, 2013-AUG-06, at: http://thecapitolwatch.com/
Copyright © 2013 by Ontario Consultants on Religious
Originally written: 2013-JUL-10
Latest update: 2013-AUG-15
Author: B.A. Robinson