Pennsylvania: Another AG Refuses to Do Her Job

Pennsylvania: Another AG Refuses to Do Her Job July 11, 2013

Kamala Harris has an astral twin in Pennsylvania

Ms Harris is the California Attorney General who refused to do her job when it came to speaking for the people of California and defending Proposition 8 in court. That is why the Supreme Court refused to rule on Prop 8, which let the lower court decision that overturned it stand.

Now, we have another state Attorney General who says she is going to use the power of her office to aid in overturning a state law by the simple expedient of refusing to do her job.

“I can not ethically defend Pennsylvania’s version of DOMA,” Pennsylvania Attorney General Kathleen Kane announced at a press conference attended by cheering gay marriage supporters, “We are the land of the free and the home of the brave and I want to start acting like that.”

I’m not sure how an Attorney General can claim that they are “ethically” refusing to do the job they were elected to do with a straight face, much less do it with such grade school rhetoric.

I am a Democrat, but it’s no surprise to me that this latest la-dee-dah refusal to do the job which is the primary requirement of the office she holds comes from another Democrat. I have a suggestion for Attorney General Harris: If you find the laws of Pennsylvania so reprehensible that you cannot in good conscience enforce them and defend them in court, then do not file for the office and campaign for the job which requires you to do that.

If Attorney General Harris wanted to be a lawmaker, she should have filed for the state legislature. Then, she could have worked to overturn this statute by acting in the full integrity of her office. However, she did not file for the legislature and she was not elected to that or any other lawmaking body. The office she sought and to which she was elected is the chief law enforcement office of Pennsylvania.

Cops at any level do not make laws and they do not chose which laws to enforce. It’s called separation of powers, and we have it to keep little caesars like this from taking over government.

These two women have allowed their overweening concern with their own personal opinions to supersede the responsibility they owe the people of their states to do the job they were elected to do. If they were honest rather than demagogues, they would resign these offices on the basis that their consciences would not allow them to do the job in front of them.

To refuse to do their jobs and by so doing to aid in the overturning of a law they are bound by oath to enforce and defend is dishonest, callous, cheap demagoguery that denies the people who elected them the voice in the courts that they promised to give when they ran for election in the first place.

From Reuters:

PHILADELPHIA (Reuters) – Pennsylvania Attorney General Kathleen Kane refused on Thursday to fight a lawsuit brought by the American Civil Liberties Union challenging the state’s ban on same-sex marriage.

The lawsuit is believed to be the first federal case since the U.S. Supreme Court ruled on June 26 that the U.S. government must recognize same-sex marriages in states where it is legal.

Kane, a Democrat who supports same-sex marriage, announced her decision at a press conference in the National Constitution Center in historic Philadelphia.

“I cannot ethically defend Pennsylvania’s version of DOMA,” Kane said, referring to the federal Defense of Marriage Act, overturned by the high court last month.

“It is now the time here in Pennsylvania to end another form of discrimination,” Kane said to a crowd of about 200 supporters gathered at conference, many carrying signs reading “Out for Freedom” and cheering her decision.

“We are the land of the free and the home of the brave and I want to start acting like that,” she said.

By declining to defend the state, Kane effectively tosses the issue to Governor Tom Corbett, who can decide to appoint another state lawyer to the task.

Kane and Corbett, a Republican who opposes gay marriage, are both named in the federal lawsuit that was filed in Harrisburg this week.

The ACLU sued on behalf of 23 people, including potential marriage candidates whose unions would not be recognized under current Pennsylvania law.

The lawsuit asks the court to allow the plaintiffs and all other same-sex couples the right to marry in Pennsylvania, and also asks that the marriages of same-sex couples validly obtained in other states be recognized by the state.

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47 responses to “Pennsylvania: Another AG Refuses to Do Her Job”

  1. Thanks for the heads up about Attorney General Harris’ name. I guess I got started typing Kathleen and just didn’t stop.

    The citations you provide come from come from web sites with an agenda, which is not to say that they are inaccurate, just that they need double checking. However, I was not talking about either the president or a governor. I was talking about the Attorney General, who is the chief law enforcement office of the state in which they are elected. That is an entirely different thing.

    The real test, of course, is if the people of Pennsylvania will abide this dereliction of duty. I would not, not even if I agreed with the Attorney General about whatever issue was at hand. I think elected officials should do the jobs they are elected to do and not try to go over into other areas outside their office. As I said, the Attorney General is basically the top cop of a state. Cops don’t make laws. Cops enforce laws. In the case of the Attorney General, they also defend laws in court. That, and not deciding which laws should BE law, is their job.

    I think both these women ran for the wrong office and should resign if they don’t want to do the job they were elected to.

  2. I am not sure that the refusal of the attorney general to defend the law matters very much. As the Reuters article noted, the task of defending the law now falls to James Schultz, who is the Pennsylvania General Counsel. Schultz is apparently an ally of the governor. The Washington Post has a relevant quote from Atty General Kane.

    “Kane added that the Pennsylvania General Counsel, James D. Schultz, was fully capable of defending the governor, who was also named as a defendant in the ACLU lawsuit. “I’m not leaving them high and dry,” she said. “They have their own team.”

    I think that if a government official steps aside from a duty for reasons of conscience, it raises concern. But so long as another government official is able to do the task without hardship, perhaps it is okay.

    A comparable example would be county clerks who object to a new state law allowing same-sex marriage. I know many have encouraged such clerks to refuse to issue the licenses. My personal feeling is that would be okay, so long as another person in the office is able to step in and do the job.

  3. websites with an agenda? Have you read your own website?

    AGs are not only sworn to uphold and enforce the law, they also swore to defend, protect, and uphold the Constitution of the United States (and their state Constitutions). The Constitution IS the supreme law of the land, and any law that is unconstitutional should not be enforced/defended as law at all.

    This is certainly not the first time the executive branch has decided not to defend a lawsuit, and on a smaller scale, District Attorneys have refused to prosecute (which is their job) certain cases based on social policies rather than law (a lot of which dealt with minorities).

    The fact remains that the AGs do NOT have to defend EVERY lawsuit against the state. While it may be part of their job to, they are not required to and are allowed certain discretion in their practice.

    When you find a law/rule that says AGs must/shall defend every lawsuit against the state, let me know.

  4. Tony, this blog is a blog of essays giving my opinions. It is by definition, subjective. The agenda of this blog, which is the reason for its existence, is plainly stated under Blog Rules in the right hand column. Me, giving my opinions after openly stating the basis for those opinions and the purpose I hope to achieve by giving them, is completely different from citing something as an objective source.

    One of the misapprehensions I’ve seen repeated a couple of times in comments about this post is the idea that Attorney General Kane is part of the executive branch of the Pennsylvania state government. I think people who are making that claim are trying to interpret the government of the state of Pennsylvania by what they know of federal government.

    I do not know specifically how Pennsylvania sets this up, but I would guess that since Attorney General Kane is a Democrat, and the governor is a Republican, and also since they have different positions on this important issue, that they probably ran on separate tickets. All this is to say that the arguments people are making in trying to justify Attorney General Kane’s behavior are almost certainly non sequitur, since they are based on false assumptions.

    As I said, if the people in Pennsylvania are willing to let their AG forego her responsibilities to be their spokesperson in the courts, then that is their call. As for me, I’d vote for most anyone other than an AG who would behave like this.

  5. I think the most important thing is that the ACLU name the governor as a defendant in the case. That should give him standing, should he chose to exercise it. At the same time, defending state laws in court is not his job. It is the AG’s job.

  6. Two thoughts come to mind.
    One, Presdient Obama’s picking and choosing which laws he intends to enforce has spread across the country. No one believes in laws any more because there is no guarentee that they will be enforced. This has hurt the immigration legislation because no one believes that the parts of the law Republicans want will be enforced by the president. So what’s the point of the laws? I don’t say this just as a Conservative, but Presdent Obama, because of this and because of the lies he has been caught on, has completely undermined faith in the government. He has been a complete national disaster, one of the worst presidents of all time.
    Two, the specific issue with this DA and others not enforcing DOMA laws reflects the incredible transition society has had on gay marriage in the last ten years. When these laws had passed the majority of people were against gay marriage. Today it seems that the majority, especially in certain regions, is decidedly for gay marriage, and yet the laws are on the books. The DA and the other elected officials feel no political pressure to enforce these laws. However they undermine faith in government by not enforcing them. Legislators should just over turn them, not this nonsense.
    I’ve never seen the country in such a sad state.

  7. Yeah, but the issue is not enforcing the laws on the books. They have underminded the will of the people by choosing which laws they want to enforce. They ought to be impeached.

  8. Actually in PA, it is in the job description for Attorney General From the PA AG website:
    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

    It does NOT say “in any action they choose”

  9. I’m letting you know:
    Section 204 (a) (3) of the COMMONWEALTH ATTORNEYS ACT
    Act of Oct. 15, 1980,

    (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 controlling decision by a court of competent

    so until the appeals run out/Supreme Court has ruled it is in fact her duty (and lawful obligation) to defend the laws of the state of PA. Just as a big business supporting Attorney General would be obligated to defend a new corporate state tax if it had been enacted into state law and businesses sued the state to have it overturned for whatever reasons they came up with.

  10. I agree that it is very good that the ACLU named the governor as defendant, giving him standing. I was distressed that the US Supreme Court was able to dismiss the Prop 8 challenge simply because the California AG decided not to defend the law. Since the Pennsylvania General Counsel is able to take the reins of the case, this makes today’s of less concern to me.

    A link from has already been posted, but in large part it is based on news reporting from NPR. That news article indicates that the executive branch of the federal government has repeatedly decided not to defend laws enacted by Congress. The administrations of Truman, Eisenhower, Kennedy, Ford, Reagan, GHW Bush, Clinton and GW Bush are all mentioned.

    Since the US AG is appointed by the US president, there is no light in between the public position of the US AG and the executive (the president.) That isn’t the case at the state level, where the AG is elected independently of the executive (the governor.) In Pennsylvania, as in other states, a situation sometimes arises where the AG does not see eye to eye with the governor. The important thing is that the governor is able to set policy, and override the personal decision of the AG if necessary. (In California, the state AG and the governor were in agreement not to defend Prop 8.)

  11. I’m not sure how I personally feel about this trend of AGs deciding which laws to defend. But your analysis is intellectually dishonest.

    Law enforcement is not a branch of government; the courts are. Your comparison fails.

    Part of the duty of the AG office is working toward justice for the citizens of the state – including gay citizens. These actions are a form of civil disobedience to that end.

    Nowhere do you raise the issue of perceived injustice or inequality. So your piece is nothing more than uniformed scolding.

  12. The will of the people is recognized on their elected officials. If this is an intolerable act in the eyes of the electorate, they can vote her out of office.

  13. I agree that this AG’s refusal to defend the law is an act of civil disobedience as is the refusal of municipal registrars to issue marriage licences. Acts of civil disobedience are not free of consequences for either AGs or municipal employees. Would you expect gay rights advocates to support both sides of the debate? I don’t think they are being hypocritical at all – just consistent with their worldview. If discrimination is something to decry, then this attempt to end it is something to be applauded.

  14. The next time I hear about a pharmacist refusing to do their job, remind me to call it “dishonest, callous, cheap demagoguery”.

  15. What are you talking about? She got elected to do a job. If her points of view make her incapable of executing the mandatge of her job, she needs to be removed.

  16. I’m going to do a separate post on the subtleties of this issue, but I think anyone can see that a pharmacist is not the same as the Attorney General who is elected by an entire state to perform duties that are constitutional and on which rest the question of a just and fair government, as well as whether or not we will have government of, by and for the people through their elected lawmakers, or government by special interest groups and their toady office holders.

    If she was a legislator, she would be well within the bounds of her office to oppose and try to overturn this law. She would also be within the bounds of her office to make speeches about how terrible the law was to gay rights groups — or anyone else, for that matter. But the Attorney General is the people’s lawyer. Not the gay rights movement’s lawyer.

    Showboating for the gay rights movement by refusing to do her job is not within the bounds of the office she sought and was elected to. It demeans her office and denies the people of the state of Pennsylvania the legal representation they are entitled to as a matter of law.

    Do you really want to give cops the power to interpret and rescind laws by fiat?

  17. Those of us who support marriage equality for law-abiding, Gay couples didn’t really have a choice but to “target” all the piecemeal, state-by-state bans, didn’t we? The Supreme Court could have issued a comprehensive ruling requiring Gay & Straight couples to be treated equally, at ALL levels of government, but instead they chose to punt on the some of the details.

    So what now? Most of the legal benefits of marriage come from the federal government. Take survivor benefits under Social Security, for example. Legally married Gay couples in Iowa are now entitled to those benefits, but suppose one of those couples relocates to West Virginia, which has a statutory ban on same-sex marriage. Does the state have the power to forcibly annul that marriage? And if so, does the couple now LOSE those federal benefits?

    Don’t fault US for continuing this fight. The Supreme Court left us no choice.

  18. …the Attorney General who is elected by an entire state to perform duties that are constitutional and on which rest the question of a just and fair government

    …which is why she should not uphold brazenly unconstitutional, unjust, and unfair legislation.

    as well as whether or not we will have government of, by and for the people through their elected lawmakers, or government by special interest groups and their toady office holders.

    Yeah yeah ‘the people support my side and only toady lobbyists support the things I’m against’. A claim as false as it is immature.

    But the Attorney General is the people’s lawyer. Not the gay rights movement’s lawyer.

    You do realize that A: gays are people too and B: same-sex marriage does no harm to anyone, right? By being the people’s lawyer, it is her duty to stand up for every citizen, especially those who would be marginalized and given second-class status.

    Showboating for the gay rights movement by refusing to do her job is not within the bounds of the office she sought and was elected to.

    But “showboating” for religion is a perfectly valid reason to withhold lawful medical care? I stand by my comparison to pharmacists, and I look forward to your upcoming post on the subject.

    Do you really want to give cops the power to interpret and rescind laws by fiat?

    Let me get this straight: you just spent three paragraphs drawing the distinction between an elected government official and an unelected service provider, and now you are directly comparing the AG to a hired cop?

  19. I honestly see no difference between a pharmacist refusing to fulfill a prescription for birth-control pill (and in some cases, refusing to return the prescription slip, forcing the woman to go to her doctor for another), a county registrar refusing to grant same-sex couples marriage licenses and this attorney general. All are defying laws that they feel to be wrong by “refusing to do their jobs”, and in doing so attempting to exercise influence over how others are allowed to live their lives.

    The fact that I agree with this AG and not with the other two examples is irrelevant; you can’t condemn one for this tactic and praise others based on the tactic alone.

  20. The Attorney General is charged with representing the people (ie, their laws) in court.) What you advocating is that they should usurp the powers of the judiciary and function as a judge instead of an ag.

    Also, whether or not the law in question is unconstitutional is undetermined. It was not decided in the recent Supreme Court decision which took laws such as this off the table.

    The humanity of homosexuals is not in question. The fact is that when the Attorney General represents “the people” she or he does this by speaking for the whole citizenry in court. Laws that were either passed by referendum or through their legal representatives are regarded as the people’s will, and when when the AG “represents the people” in court, it is their job to represent these laws.

    If gay people can change the law, as they have in other states, then it would be the AG’s job to represent that.

    The AG is what I call the top cop. He or she is a law enforcement official, the chief law enforcement official of the state. Maybe I should have spent more paragraphs on this part, but since I’ve explained this repeatedly, it didn’t seem necessary.

  21. Yes, a professional, as opposed to a generic businessman; one distinction is professionals having a higher duty to the client, and abiding by a code of ethics for the profession. In addition, pharmacists are licensed by the state, supposedly for safety, but they’re also getting the benefits of a higher barrier to entry, i.e. less competition for their jobs; conversely, the rest of us have less choice about where to go to get our medicines. Practically, a pharmacist is thus in essence an agent of the state, and through that an agent of the public. Inserting her conscience between doctor (also a professional) and patient is thus arguably highly inappropriate; as a professional, she’s supposed to dole out medicines safely, and that’s it.


    As for Kane, she’s certainly elected, and by a good margin.

    She’d signalled her support for gay marriage in the campaign

    so it’s not a complete surprise to the voters, and “the law also says the attorney general may allow lawyers for the
    governor’s office or executive-branch agencies to defend a lawsuit if it
    is more efficient or in the state’s best interests”

  22. @FW Ken, *licensed* by the state, which means s/he has an obligation that came with the license.

  23. nope, as long as it’s not an unconstitutional law, and the only objection to it the clerk has is ‘moral’ (waahhhhh, I can’t be hateful at work anymore!!!!), the clerk should be fired. The AG is stating that the law is unconstitutional, and that’s why she’s not defending it.

  24. @Manny, here’s a quote that puts you on the unthinking side of the issue: “Justice means minding one’s own business and not meddling with other men’s concerns. –Plato “

  25. not if it’s prima facie unconstitutional by violating the Equal Protection Clause…

  26. I dunno…. the Pennsylvania AG may not be defending the law, but she is handing the case over to the Pennsylvania General Counsel so it can do so. The AG isn’t blocking defense of the law on constitutional grounds, but saying that, personally, she doesn’t want to be involved in defending it. This seems very much an issue of conscience for her. I think this puts her into the same category as the county clerk who objects to issuing same-sex marriage licenses, but allows others in her office to do so in her place.

  27. Ken, I live in a rural state and am uneasy about the pharmacist issue. Allowing an urban or suburban pharmacist to refuse to fill a prescription raises difficulties. However, the matter can ultimately be resolved by going to another pharmacist. Such an option may not be available to people in rural areas where the next nearest pharmacist may be 50 miles (or more) away. And what if that pharmacist also refuses, citing grounds of conscience?

    I think health care professionals, licensed by the state, carry an obligation to serve the public. If their services are essential to an area, perhaps that needs to be taken into consideration.

  28. As Greg Lively wrote earlier, it is hard to condemn the AG and not also condemn the county clerk who hands her duty over to another official. The situation applies in reverse, as well.

  29. Dale, if county clerks are elected in a state, then I see where you’re coming from. However, I still think there is a big distinction between a county clerk and an Attorney General. The attorney general is a statewide office, they are the only ones who hold this office, and their refusal to represent the people in court can have enormous, nationwide ramifications, as it did in the DOMA case. Their refusal to do their duty can be a method of creating a veto of the legislative process by fiat. This is not a small thing. It is overstepping the way our government is constructed to provide government of the people, through their duly elected representatives. The actions of a county clerk never, in no way, rises to this level and their office never, in no way, rises to the level of an attorney general.

    These are issues we are going to have to thrash out, but I think it is easy enough to separate the duties of statewide offices from those of county offices in terms of what is expected of them.

    I think that people are so accustomed to attorneys general at the state level just doing their jobs, regardless of their personal opinions of a law, that they have taken it for granted. Now that we have a special interest group that is pushing them to abrogate their responsibilities and a couple of ags have actually done this, the issue becomes important.

    As I said, if an attorney general is unable, on pain of conscience, to fulfill their responsibilities, they have the ethical option to resign their office and run for the legislature, where they can work to change the law. But to announce that they are going to leave their client (in this case, the people of the state who elected them) without their representation is gross dereliction of duty.

    As for her “handing the case over,” she, and no one else, is the Attorney General of Pennsylvania.

    I think the reason I am so very disgusted by this is that I am an elected official, and I see this as an elected official. Public office is hard. You have to face a lot of issues and decisions that cut you up pretty badly. Legislators actually face a lot more of this than attorneys general. But, as Harry Truman said, if you can’t stand the heat, get out of the kitchen.

  30. All law enforcement officers are officers of the court. On the federal level the ag is an appointed position (cabinet level) and part of the executive branch. In most states, it is a free-standing office that is elected on its own ticket. As the chief law enforcement officer of the state, the ag is considered an officer of the court.

    It is not part of the office of the AG to work toward justice for the citizens of the state. Their job is to enforce the law and to speak for the people in the courts, which is to say, to defend in court the laws that were enacted by the people’s duly elected representatives.

    There is nothing in the ag’s job description — and I mean NOTHING — which allows for acts of “civil disobedience” against the interests of the people of the state, which, in the case of the ag’s office, is always defending the people’s laws.

  31. The NYT article you linked to is about Rose Marie Belforti. As town clerk she was required to issue all marriage licenses, but she had objections of conscience to same-sex marriage. Her solution was to delegate all marriage license duties to a deputy. This seems very similar to what the Pennsylvania AG has done: sidestep the issue by handing off the duty to someone else.

    The NYT article mentioned that a lawsuit was being considered, but was such a lawsuit ever filed? I couldn’t find any news of such even though two years have gone by. There doesn’t seem to be any evidence that Ms. Belforti faced any repercussions other than a write-in challenge to her re-election. She won that vote by a comfortable margin.

    Last year, a pro bono legal advocacy organization called Alliance Defending Freedom was encouraging clerks in other states to adopt the same solution that Ms Belforti adopted.

    That the ADF was encouraging this strategy seems to suggest there are solid legal foundations for it.

  32. I think the bakery case is a good example. There is no reason why an engaged couple must get their cake from a specific shop if alternative sources exist. Why would a couple insist that a particular baker prepare a cake for them?

    I think allowing for freedom of conscience is a good thing. We need to be more tolerant of one another.

  33. I am a licensed health care professional and you misunderstand the nature of the license. It is the public’s assurance that I have been adequately trained and tested and meet the requirements for licensure. I must also abide by the rules for the practice of my profession and It is your assurance that I am not a criminal. There is a state licensing board that oversees all of this and interacts with the legislature and also has the power to restrict my practice up to and including taking my license away.

    In no way does my license say I have to violate my conscience or that I have to agree to serve everyone that comes to me in whatever way they want even if what they want is legal. At least not yet. I’m sure there are many who would like to change that.

  34. Do you think that an obstetrician or a gynecological surgeon is obligated to perform a legal abortion on demand as well? They’re not and they don’t even have to refer you to someone who does if your life/health is not in immediate danger.

  35. That is completely out of context. She has a mandate to perform and that is carry out the law, whether she likes it or not.

  36. In Oregon our governor came into office and promptly put a moratorium on carrying out the death penalty. He flat out stated that none would happen while he is governor. While I am not in favor of the death penalty I abhor what he has done and the arrogance of imposing his morality, simply for the sake of his morality, on the people of this state who voted in the death penalty. He isn’t even trying to change the law because he is in control and doesn’t have to.

  37. Does the governor of Oregon have the constitutional power to commute sentences and to pardon? The power as chief executive to direct prosecutors as to what sentences to seek?

  38. I’m not sure what he is doing. Only one case has come to an execution date so far. That man wanted his execution to go forward and the governor blocked it twice, even after the courts decided the man had a right to request his execution (sane). He’s not commuting sentences and he is not backing legislation to overturn the law. He says he will just refuse to allow any executions to occur. I think the death penalty is still an option for prosecutors.

  39. I’m against the death penalty but I am also against what he has done on principle. To me, it is the same disrespect for the law and the people he was elected to serve as what Rebecca has posted about here. btw, it was not brought out during his campaign that he intended to do this so I think that was shady.

    As far as innocence and equal justice, in the one case that has come up so far the condemned man I wrote about below was serving a life sentence for murder when he murdered an inmate. There is no question of guilt – he admits he did it and wants to die. The governor is against it on principle, which is fine, but just not the way he is handling it which is indefinite clemency.

  40. “In no way does my license say I have to violate my conscience”

    A “conscience” is something that objects when you do something that hurts someone else. Providing birth control does not hurt anyone, so whatever it is that you have to violate to provide birth control, it is not a “conscience”. Your license does say that you have to comply with the law. If the law conflicts with your values, then your license does require to violate your values.

  41. Are you seriously saying that cops should never let their consciences get in the way of their jobs? “I was just following orders” is perfectly valid defense in your world?

  42. Where does the law say there is a prima facie exclusion for the AG? Even if it did have a prima facie exclusion to the PA AG going their job, there are valid arguements that the law doesn’t violate the Equal Protection Clause (even if you and many other don’t agree) and therefore it isn’t prima facie and so it is the AG’s job to present those arguements in court until the appeals are exausted and the court overturns the law.