Montgomery Co., PA’s Novel Approach to Same-Sex Marriage

After the Doma and Prop 8 cases were handed down last month, lawyers all over the country and civil rights organizations like the ACLU got busy. Challenges to state constitutional amendments, and to laws denying recognition of same sex marriages performed elsewhere, have already been filed in many places, and petitions are circling to get measures legalizing same sex marriage on state ballots. Arizona. Arkansas.  Hawaii. Michigan. Nevada. New Jersey. New Mexico. North Carolina. Ohio. Oregon. Virginia.

The ACLU filed suit challenging Pennsylvania’s statutory ban on same-sex marriage. But something funny happened when Kathleen Kane, the Pennsylvania attorney general, got the lawsuit. She said she just could not defend it. She said things like, “I cannot ethically defend the constitutionality of Pa’s DOMA as I believe it to be wholly unconstitutional,” and  “It is up to all of us to stand up against intolerance,” and “I choose to represent those without lawyers.”


“I looked at it this way,” Ms. Kane said in explaining her decision in the lawsuit. “The governor’s going to be O.K.” But who would represent ordinary people, “the Daves and Robbies”? she asked. “Who represents the Emilys and Amys?”

“As attorney general,” she said, “I choose you.”

Kathleen Kane is doing what so many of us went to law school so we could do – make things better for our communities, our states, our country. She is actively being the change she wants to see in the world. She is representing ordinary people. She has too much integrity to want to defend an unconstitutional law.

Even though the challenge has not even been answered yet, the attorney general’s public decision not to defend the unconstitutional ban has had very real repercussions.

When the Montgomery County, Pennsylvania court clerks – the men and women who work in the county courthouses and issue marriage licenses to qualified applicants – heard the news, they said, “The AG says our state’s same sex marriage ban is indefensible? Cool! Everybody can get married!”

And they have started issuing marriage licenses to same-sex couples.

As of yesterday, at least five gay and lesbian couples had applied for and been granted their marriage licenses, and at least one couple was married on the courthouse lawn.

The clerk who made the decision to issue those licenses was on Rachel Maddow last night. To skip to the part where he enters the broadcast, skip to 8:32. His explanation as to how he arrived at the decision to issue the licenses is pretty cool. He’s right – when a state statute conflicts with a constitution, the constitution trumps. Every time.



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  • WoodyTanaka

    I find this decision troubling because, regardless of the AG’s opinion, until found unconstitutional by a court, it is still the law. It’s an unintended consequences thing. If an AG opined that it was unconstitutional to grant licenses to interracial couples and a county official refused to go so, citing the AG ‘s opinion, would we support that??

    • Kodie
    • EvolutionKills

      The difference here being, that you can easily make a plain constitutional argument against laws that discriminate on the basis of sex, and cannot use the constitution to argue for discrimination on the basis of race (it was kind of the whole point of the Civil Rights movement). It is still ‘the law’, but one that clearly violates both the state and federal constitutions. Is it illegal to no longer enforce a law that is itself unlawful?

      It think the AG made the right decision, and the clerk made the right decision. If however the AG proposed something as vapid as the unlawfulness of interracial marriage, I’d would simply disagree with AG and clerk (on the grounds of the constitution, civil rights, and equality) and wait for the ACLU to mop the floor with them in court.

      Still, it’s nice to see backwards-as-all-hell Pennsylvania actually take a step in the right direction for a change.

      • WoodyTanaka

        Sigh. Fine. Change the hypo to one where you would disfavor an AG’s opinion to disregard clear law. The specifics don’t matter because it is the principle that is the issue. An AG is nothing but the government’s lawyer, who has no power to declare an act unconstitutional, so we should not countenance sidestepping the legal process.

        And Pennsylvania isn’t backwards as hell. Like most places, it’s rural sections are not progressive, but you’ll find a lot of progressives in the urban and suburban areas in Philadelphia, and Pittsburgh and, to lesser degrees, the smaller cities.

        • EvolutionKills

          I get what you’re saying, but also take into account that they haven’t set a precedence so much as are following one. It’s my understanding that the federal AG and the President were not going to enforce DOMA, even before the Supreme Court case; and it wouldn’t surprise me if precedence for this type of thing went even further back. I’m not a legal historian by any means, so I could be entirely mistaken here.

          And while I get that they might not be following the ‘letter of the law’, I guess that it just troubles me far less than it appears to trouble you. I look around and see countless examples of the powerful gaming the system to their advantage, so that their actions are legal even if reprehensible in almost every sense of the word (the recent Treayvon Martin ruling, and not-so-recent lack of Wall Street prosecution comes to mind). So to see someone in power do what I agree is the ‘right’ thing for a change, instead of just copping out, is a refreshing change of pace.

          On a side note, if you’re at all familiar with D&D, you’d probably not be surprised that I tend to play Chaotic-Good characters.

          I understand the ‘slippery slope’ argument, and I would be angry if an AG or DA overstepped their authority in an effort to discriminate in the face of the law. But dammit, good news seems so scarce anymore, I’m going to take it where I can find it! I’ll celebrate what victories I can at this point. This way I won’t be so disgusted when I think about the bullshit Wall Street gets away with because it’s ‘legal’…

          On another side note, I’ve lived in western Pennsylvania most of my life (Erie, Pittsburgh, and more in between). We certainly do have our progressive places and moments, but it’s contrasted with a stark and obtuse traditionalism, even in the more ‘progressive’ cities. I love Pittsburgh’s South Side, but I’ll be damned if it the city doesn’t try it’s hardest to run itself into the ground. It’s not Detroit by any means, but to me they do seem to do a lot of stupid irrational crap…

  • Machintelligence

    There is some similarity to the decision not to enforce the federal law against marijuana in states where it has been legalized for medical or recreational use. It is still the law, but without someone to enforce it, the legality is moot.

    • Silent Service

      The only problem with not enforcing a law is that administrations change. When they change the new administration can suddenly decide to begin enforcing laws that have long lay dormant. Better to press to have unconstitutional laws challenged and taken off the books or overturned by new legislation. That said, I think this situation is almost perfect as you know that some kind of challenge will come out of this allowing us to get rid of these vile and intrusive laws.

      • EvolutionKills

        One can only hope.