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Monday, September 16, 2019

Pa. AG seeks dismissal from federal lawsuit over same-sex marriage ban

By Jessica M. Karmasek | Dec 11, 2013

PHILADELPHIA (Legal Newsline) -- Pennsylvania Attorney General Kathleen Kane, who has come under fire for not defending the state's Defense of Marriage Act, wants out of a separate lawsuit that challenges the same-sex marriage ban.

On Monday, Kane filed a motion in the U.S. District Court for the Eastern District of Pennsylvania asking Judge Mary A. McLaughlin to dismiss all claims against her in Palladino et al. v. Corbett et al.

In the case, plaintiffs Cara Palladino and Isabelle Barker, a lesbian couple, want the state to recognize their Massachusetts marriage license.

In her motion, Kane argues the plaintiffs lack standing to assert the claims against her and they have failed to allege "any involvement by the attorney general" in the violation of their rights.

Gov. Tom Corbett filed a similar motion in the case late last month. He cited a lack of jurisdiction and the plaintiffs' failure to state a claim.

In July, Kane, a Democrat, announced her office would not defend the Defense of Marriage Act, commonly referred to as DOMA, in Whitewood et al. v. Corbett et al.

The law prohibits marriage between people of the same sex. In addition, under DOMA, same-sex marriages that are legally made in other states are void in Pennsylvania.

Whitewood challenges DOMA based on the Equal Protection and Due Process clauses of the U.S. Constitution.

"I cannot ethically defend the constitutionality of Pennsylvania's version of DOMA where I believe it to be wholly unconstitutional," Kane said at the time.

"It is my duty under the Commonwealth Attorneys Act whenever I determine it is in the best interest of the Commonwealth to authorize the Office of General Counsel to defend the state in litigation.

"Additionally, it is a lawyer's ethical obligation under Pennsylvania's Rules of Professional Conduct to withdraw from a case in which the lawyer has a fundamental disagreement with the client."

One state lawmaker has gone as far as introduce a House resolution calling for Kane's impeachment, arguing that the attorney general has violated state law by refusing to defend the state law.

In October, Rep. Daryl Metcalfe, a Republican, circulated a co-sponsor memo to members of the state House of Representatives, asking for their support of an impeachment resolution for Kane.

Metcalfe introduced his resolution late last month.

"All public officials in Pennsylvania swear an oath to uphold and defend the Constitution and laws of this Commonwealth," he said in a Nov. 26 statement. "Attorney General Kane's repeated violation of her constitutional, statutory and ethical duties cannot be tolerated if our system of government is to work properly."

According to Metcalfe's House Resolution 572, Kane's decision and declaration was based solely on her personal opinion that the law is "wholly unconstitutional."

He argues that the Commonwealth Attorneys Act imposes a mandatory duty on the attorney general to defend the constitutionality of all lawfully enacted statutes, regardless of personal opinion.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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