A crowd of onlookers cheered after state Attorney General Kathleen Kane announced her office would not defend Pennsylvania’s version of the Defense of Marriage Act against a federal lawsuit brought by the American Civil Liberties Union because she believes it’s unconstitutional. Forgive us for not joining in that applause, even though we oppose discrimination against gay people in marriage or anything else.
By law, one of the fundamental duties of her office is to represent the commonwealth against lawsuits. Any attorney general swears to support, obey and defend both the U.S. and state constitutions and, most pertinently, discharge the duties of the office with fidelity.
In choosing partiality to her own ideas over fidelity, the Democrat refuses to do her job. Someone does have to determine the constitutionality of Pennsylvania’s law prohibiting gay marriage and that duty properly falls to U.S. District Court Judge John E. Jones III. That is his job.
Some supporters of gay marriage may argue that these objections are pedantic and that the rightness of the cause justifies Ms. Kane’s taking an expansive interpretation of her oath of office. But there’s a large, practical problem with deciding to pre-judge the case before the judge has had a chance. This cavalier approach cuts both ways for liberals and conservatives.
In Ms. Kane’s case, a liberal attorney general refuses to defend a law, this one barring same-sex marriage, that is scorned by many liberals. In so doing, she garners political support from liberals. Some other year it could be a conservative attorney general who decides that because of the free speech rights she will turn a blind eye to restrictions on protesters outside abortion clinics, with the result that women are harassed and the attorney general is applauded by conservatives.
How do we feel about taking oaths lightly now?
Ms. Kane is not the first to take such a step. U.S. Attorney General Eric Holder did it with the federal DOMA. California’s governor and attorney general declined to defend the ban there on same-sex marriage and the U.S. Supreme Court decided no one else had standing, allowing the marriage of gays to proceed.
As it turns out, in this case, Gov. Tom Corbett’s Office of General Counsel will likely defend the state law. But the state pays an elected attorney general to do that.
America has become a nation of people who, as a matter of principle, know better than anyone else. But there is principle, too, in process, that old bulwark against anarchy. Ms. Kane thinks she struck a blow for liberty when in fact she failed to do the job she promised to do.