Point-Counterpoint on Kathleen Kane and Defense of Gay Marriage Ban

Jul 17, 2013 Full story: www.mcall.com 27

Attorney General Kathleen Kane announced Thursday she would not defend the state in a federal lawsuit challenging a 1996 state law banning same-sex marriages because she said the law is unconstitutional. This article discusses the role of the PA Attorney General in defending, or not defending, unconstitutional laws.

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Since: Mar 09

Location hidden

#1 Jul 17, 2013
Her OFFICE has the duty to Defend all the Laws of the State of Pennsylvania. How she feels personally is ... well ... personal.

Remember what we all thought when some employees of some County Clerk's Offices refused to serve samesex couples seeking Civil Marriage Licenses even though the Laws in that State allowed them?

Since: Apr 08

Chagrin Falls, OH

#2 Jul 17, 2013
snyper wrote:
Her OFFICE has the duty to Defend all the Laws of the State of Pennsylvania. How she feels personally is ... well ... personal.
Remember what we all thought when some employees of some County Clerk's Offices refused to serve samesex couples seeking Civil Marriage Licenses even though the Laws in that State allowed them?
Her role as Attorney General for the state, and her office's role, is also to determine whether state laws are constitutional or not. It is the Attorney General's discretion to not defend unconstitutional laws.

County Clerks, on the other hand, do not have the authority to decide which laws are constitutional.

There's a big difference.

Since: Mar 09

Location hidden

#3 Jul 17, 2013
Gay And Proud wrote:
<quoted text>
Her role as Attorney General for the state, and her office's role, is also to determine whether state laws are constitutional or not. It is the Attorney General's discretion to not defend unconstitutional laws.
County Clerks, on the other hand, do not have the authority to decide which laws are constitutional.
There's a big difference.
It is the SOLE purview of the COURT to determine what the Law is, and is not.

Not the County Clerk employees, the County Clerk, the Attorney General, the Legislature, the Governor, nor the People.

The COURT.

She is foresworn in her office. Charges should be brought for her removal from that Office of Public Trust.

Since: Apr 08

Chagrin Falls, OH

#4 Jul 17, 2013
snyper wrote:
<quoted text>
It is the SOLE purview of the COURT to determine what the Law is, and is not.
Not the County Clerk employees, the County Clerk, the Attorney General, the Legislature, the Governor, nor the People.
The COURT.
She is foresworn in her office. Charges should be brought for her removal from that Office of Public Trust.
You are entitled to your opinion even though it's not supported by precedent.

Another recent example of a law being declared unconstitutional by a state Attorney General happened in Colorado just last month. In that instance, Colorado Attorney General John Suthers declared a new Colorado marijuana law that required pot magazines to be treated like pornography and kept behind a counter at shops to be unconstitutional and said the state will not defend it in court.

In the Colorado case the new law was the result of a voter-approved amendment. So even with voter support for a law it can't hold if it is unconstitutional.

“Equality First”

Since: Jan 09

St. Louis, MO

#5 Jul 17, 2013
There seems to be a difference of opinion on whether she can legally refuse to defend a law. However opinion is not the deciding factor. What does the law say about her duty? And is it different in different states?

Since: Mar 09

Location hidden

#6 Jul 17, 2013
RalphB wrote:
There seems to be a difference of opinion on whether she can legally refuse to defend a law. However opinion is not the deciding factor. What does the law say about her duty? And is it different in different states?
Not appreciably.

“ reality, what a concept”

Since: Nov 07

this one

#7 Jul 17, 2013
snyper wrote:
It is the SOLE purview of the COURT to determine what the Law is, and is not.
Not the County Clerk employees, the County Clerk, the Attorney General, the Legislature, the Governor, nor the People.
The COURT.
She is foresworn in her office. Charges should be brought for her removal from that Office of Public Trust.
The Attorney General has determined that the only possible defense of the law is to throw it at the mercy of the Courts. The message to the Court is, if you don't think the plaintiffs make their case and it's constitutional, fine and if you think they prove it as unconstitutional as this office believes it to be now, we can live with that too, but we are under no legal obligation to mount a legal defense of a law that has no legitimate defense, no matter how it was approved.

DNF

“Religious Freedom to Marry”

Since: Apr 07

Newark OH / Baltimore MD

#8 Jul 17, 2013
snyper wrote:
Her OFFICE has the duty to Defend all the Laws of the State of Pennsylvania. How she feels personally is ... well ... personal.
Remember what we all thought when some employees of some County Clerk's Offices refused to serve samesex couples seeking Civil Marriage Licenses even though the Laws in that State allowed them?
With all due respect my friend, I also DO NOT recall ever hearing you insist that Mississippi enforce their slavery laws that were on the books until last year.

There's a mea culpa somewhere with your name on it.

“Equality First”

Since: Jan 09

St. Louis, MO

#9 Jul 17, 2013
snyper wrote:
<quoted text>
Not appreciably.
I read on another thread that the Atty. Gen. has the option of tossing the case to another government entity, which she did in turning it over to the Governor. I think that meets state law in PA.

Since: Mar 09

Location hidden

#10 Jul 17, 2013
Rick in Kansas wrote:
<quoted text>The Attorney General has determined that the only possible defense of the law is to throw it at the mercy of the Courts. The message to the Court is, if you don't think the plaintiffs make their case and it's constitutional, fine and if you think they prove it as unconstitutional as this office believes it to be now, we can live with that too, but we are under no legal obligation to mount a legal defense of a law that has no legitimate defense, no matter how it was approved.
Nope.

Nolo contendere is not an option of the Office.

Since: Mar 09

Location hidden

#11 Jul 17, 2013
RalphB wrote:
<quoted text>
I read on another thread that the Atty. Gen. has the option of tossing the case to another government entity, which she did in turning it over to the Governor. I think that meets state law in PA.
I think that the AG, an agent of the Executive, has no authority to autonomously refuse. Passing it to the Governor is equivalent to "I can't (for whatever reason) do my job." It's then up to the Executive what to do.

“ reality, what a concept”

Since: Nov 07

this one

#12 Jul 17, 2013
Unless you can find a state statute requiring the AG to defend the law despite their opinion that it is unconstitutional, they are under no obligation to do so. It really is that simple, they are required to enforce the law, not defend it.

Since: Mar 09

Location hidden

#13 Jul 17, 2013
Rick in Kansas wrote:
Unless you can find a state statute requiring the AG to defend the law despite their opinion that it is unconstitutional, they are under no obligation to do so. It really is that simple, they are required to enforce the law, not defend it.
It's in the job description of the AG to represent the State in Court proceedings.

“ reality, what a concept”

Since: Nov 07

this one

#14 Jul 17, 2013
Unless you can find a statute requiring the AG to defend a law that they view as unconstitutional, they are under no obligation to do so, despite the job description.

“Equality First”

Since: Jan 09

St. Louis, MO

#15 Jul 18, 2013
snyper wrote:
<quoted text>
I think that the AG, an agent of the Executive, has no authority to autonomously refuse. Passing it to the Governor is equivalent to "I can't (for whatever reason) do my job." It's then up to the Executive what to do.
I normally agree with most of what you post, but I must take exception here. If it were not intended for the Atty. Gen. to have latitude in these cases, they would not have entered it into law. I am not talking about the morality of her decision, but rather the legality of it.

Since: Mar 09

Location hidden

#16 Jul 18, 2013
Rick in Kansas wrote:
Unless you can find a statute requiring the AG to defend a law that they view as unconstitutional, they are under no obligation to do so, despite the job description.
The job description IS the Law.

If you don't think that such definitions matter, I refer you to PropH8.

<evil chuckle>

Since: Mar 09

Location hidden

#17 Jul 18, 2013
RalphB wrote:
<quoted text>
I normally agree with most of what you post, but I must take exception here. If it were not intended for the Atty. Gen. to have latitude in these cases, they would not have entered it into law. I am not talking about the morality of her decision, but rather the legality of it.
Same here. The morality is her personal issue.

My reference point is California, where the definition of the Office of the AG, the job description, is written in Law. It's one thing to have a longstanding practice of playing loose with that Definition, and may be reasonable from the standpoint practical considerations, but technically it IS violation of the Law.

There IS a Constitutional mechanism to deal with the situation where the duly Elected Officials disagree with a Law on the books of a State. It is called "Repeal". If the objectionable Law is Constitutional in nature, and cannot be repealed by Governmental action alone, then a "Constitutional Crisis" exists.

Since: Mar 09

Location hidden

#18 Jul 18, 2013
Rick in Kansas wrote:
Unless you can find a statute requiring the AG to defend a law that they view as unconstitutional, they are under no obligation to do so, despite the job description.
The purpose of the AG is to represent the Government of the State in ALL actions duly certified to be heard by the Court, however brought.

“ reality, what a concept”

Since: Nov 07

this one

#19 Jul 18, 2013
snyper wrote:
The job description IS the Law.
If you don't think that such definitions matter, I refer you to PropH8.
Sweetie, the last two Attorneys General of California declined to defend the amendment on the grounds that they saw it as unconstitutional. Are you sure that is what you want to use as your example? The job description isn't the statutes that lay out the duties and obligations of the job, it's just the job's description.

“ reality, what a concept”

Since: Nov 07

this one

#20 Jul 18, 2013
snyper wrote:
The purpose of the AG is to represent the Government of the State in ALL actions duly certified to be heard by the Court, however brought.
The purpose, not the statutes spelling out their legal obligations. See the battles against both California's amendment and DOMA as examples of the purpose of an Attorney General not being a statutory requirement.

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