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

Montgomery Co., PA’s Novel Approach to Same-Sex Marriage July 25, 2013

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.



Got a legal question? Email me at I’m a lawyer, but there’s only a 2% chance I’m licensed in your state. Whether I answer your question or not, sending me an email or reading this blog post does not create an attorney-client relationship between us. I’m on Twitter as @aramink, and you can see my regular blog at



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