On Gay Marriage, Kathleen Kane Shirks Her Duties

Kathleen Kane might be a really good politician, but she’s probably so-so as a lawyer.

That’s one conclusion to be drawn this week from Kane’s announcement that she, as attorney general for Pennsylvania, will not defend the state’s law banning gay marriage. “If there is a law that I feel that does not conform with the Pennsylvania state constitution and the U.S. Constitution, then I ethically cannot do that as a lawyer,” she said.

Sounds good, and possibly noble. Certainly, I hate the ban on gay marriage and would welcome its demise in Pennsylvania. I want my gay friends to get married. Period. But there’s a not-insignificant problem in the way Kane is leaving the law undefended — like officials in California left Proposition 8 undefended, clearing the way for gay marriages there — and it has to do with a critical underpinning of, well, democratic civilization: the rule of law.

Let’s go back to basics here. Kane ran for Pennsylvania attorney general last year, and state law is pretty clear about the duties of attorney general:

To represent the Commonwealth and all Commonwealth agencies and upon request the Auditor General, State Treasurer and Public Utility Commission in any action brought by or against the Commonwealth or its agencies; to furnish upon request legal advice to the Governor or the head of any Commonwealth agency.

Basically, Kane last year asked the state’s voters to hire her as the state’s lawyer — to make the Commonwealth of Pennsylvania her biggest and only client. Now that she’s got the job, though, she’s decided that the client’s actions are unsavory and unethical to defend. So she’s backing out, leaving the client without representation.

And it seems very possible that Kane’s refusal could lead to the rise of gay marriage here. Certainly, that’s what happened in California when the governor and attorney general both refused to defend Proposition 8, which banned gay marriage there. (Gov. Corbett could decide to defend the law, but no decision has been announced.) The Supreme Court decided last month that the third parties who stepped forward to defend the law didn’t officially represent the state, and thus that the law had gone officially undefended. Rather than rule on the constitutionality of Prop 8 or the merits for or against, the Supreme Court allowed gay marriage by letting officials take a pass on defending the law.

So what’s the matter with that? One way of getting gay marriage is as good as any other, isn’t it? I’m not so sure. In descending order of democratic legitimacy, it seems there are three main ways to end gay marriage bans in this country:

• A state’s voters or its legislature votes to overturn the ban, confirming that the overturn is the will of the people.

• A court finds, after hearing from both sides, that the ban is in violation either of state or U.S. constitutions, violating the rights of individuals.

• A court overturns the ban because one side didn’t show up.

The first option carries with it the notion that the Will of the People is being expressed. The second, that larger legal truths that form the basis of our law cannot be evaded. The third? It’s meaningless, and thus carries only legal power — not the social weight the first two options carry that might persuade gay marriage opponents they have legitimately lost the issue.

Segregation didn’t end because one side didn’t show up. Contraception wasn’t legalized because one side didn’t show up. Interracial marriage wasn’t legalized because one side didn’t show up. In each case, the battle of ideas was joined — and eventually, the better ideas won, and won so decisively that society itself moved as a result.

The problem with Kane’s maneuver is that it sets a precedent that can come back to bite liberals in the butt. Say — and yes, this is a fantasy — that Pennsylvania legislators decided to pass a law banning fracking in the state. All it would take to overturn the law, then, would be one lawsuit and one Republican attorney general who refused to defend it. The state’s voters would, rightly I think, be angered that their democratic will was undermined by a single official’s shirking of their duty.

Or, as gay-marriage opponent Rod Dreher points out:

Are you really okay with state governments picking and choosing which laws they are going to defend? What if Pennsylvania backed (same-sex marriage), and someone filed a federal suit to overturn the state’s law — and the Attorney General, a Catholic, refused to defend the law because he personally disagreed with it?

A lawyer’s job isn’t to love her client, but to represent her client zealously. Abandoning the playing field may work to the advantage of gays, lesbians and their liberal allies — this time. Over the long term, though, it has the potential to undermine democracy. Gay marriage is strong enough to win on its merits — in court now, but probably soon at the ballot box. A victory because Kane wouldn’t go to court might be too cheap to last.