“We are surprised that the attorney general, contrary to her constitutional duty under the Commonwealth Attorneys Act, has decided not to defend a Pennsylvania statute lawfully enacted by the General Assembly, merely because of her personal beliefs.” – James Schultz, Pennsylvania general counsel
It’s so cute when the irony escapes people like Mr. Schultz, Gov. Corbett, PA House Speaker Sam Smith, et al. Golly, doing something in PA law “merely because of personal beliefs”? Oh say it isn’t so! They of course don’t mention that the members of the PA General Assembly decided to take equal rights away from everyone because of their personal beliefs. The 1996 Defense of Marriage Act for PA wasn’t just a bunch of people forcing others to obey their personal beliefs was it? And that’s what AG Kane is refusing to defend. The wannabee theocrats want to try to keep the statute which seems to be quite unconstitutional? Well, then Mr. Schultz, Gov.Corbett, Sam Smith, et al can do if they think it’s worth it. Alas, for them they can’t hide behind someone else’s metaphorical skirts and avoid having their names attached to such nonsense. They get to take direct responsibility for it.
Here’s the Commonwealth Attorneys Act. Mr. Schultz says that the Act has something to do with Attorney General Kane’s “constitutional duty”. Here’s the parts I’m guessing he means “(3) It shall be the duty of the Attorney General to uphold and defend the constitutionality of all statutes so as to prevent their suspension or abrogation in the absence of a ontrolling decision by a court of competent jurisdiction.” And farther down “(c) Civil litigation; collection of debts.–The Attorney General shall represent the Commonwealth and all Commonwealth agencies and upon request, the Departments of Auditor General and State Treasury and the Public Utility Commission in any action brought by or against the Commonwealth or its agencies, and may intervene in any other action, including those involving charitable bequests and trusts or the constitutionality of any statute.”
As I see it, this depends if the statutes are indeed constitutional. If one goes up a bit in the Act, you get this “The Governor may request the advice of the Attorney General concerning the constitutionality of legislation presented to him for approval in order to aid him in the exercise of his approval and veto powers and the advice, if given, shall not be binding upon the Governor. In all other cases the advice when received shall be followed and, when followed, the recipient shall not in any way be liable for doing so, upon his official bond or otherwise.” So, we have an Act that says that the Attorney General can offer opinion on constitutionality but the Governor, et al, can ignore it, no matter if it is true or not. At this point, AG Kane says that the statute is not constitutional and thus is not what her oath indicates she should do. Her oath (just like everyone in the Executive Branch)? “”I do solemnly swear (or affirm*) that I will support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth and that I will discharge the duties of my office with fidelity.” So, to fulfill her oath, if she believes that the statue is unconstitutional, she must refuse to defend something some legislators and governors before her put into place. I am unaware of what the AG at the time of the acceptance said about the law but we do know that the Republicans knew it was going to be controversial back in 1996 when an effort was made to deem it unconstitutional then.
Now, we know that the Attorney General evidently can legally refuse to defend the constitutionality of a statue from the Act down in the part about the General Counsel “(6) Initiate appropriate proceedings or defend the Commonwealth or any executive agency when an action or matter has been referred to the Attorney General and the Attorney General refuses or fails to initiate appropriate proceedings or defend the Commonwealth or executive agency;” If there were no ability to refuse action, then there would be no part of the Act that says the General Counsel can initiate proceedings. So, it seems that Mr. Schultz is incorrect about what the Act says or that he’s trying to argue himself out of a job. I might suspect the latter since this case is not going to be any fun for him at all.
There was no mention of who gets to marry who in the US Constitution when it was first written. But it was declared that everyone deserved the same rights, even though it took a long time to get them to people of color, women, etc. Attempts to claim that it is constitutional to deny equal rights is going backward, forgetting any advancement of human freedom and dignity that has occurred.
Once upon a time, even straight people couldn’t marry who they wanted due to ignorant “values” of the times. If you were of different “color” you couldn’t marry. If you were a Catholic and your love was a Protestant, your ignorant family might make it impossible for you to marry (which happened to my aunt who then never married). Just because some people want to pretend their personal beliefs are “eternal values” certainly doesn’t make it so.