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Pennsylvania’s Attorney General refuses to do what the law of her state requires, and defend it in federal court. That is, AG Kathleen Kane, a Democrat who supports gay marriage, will not defend the state law banning gay marriage, which has been challenged by a lawsuit. She held a press conference to say so. Excerpt: Ms. […]

Pennsylvania’s Attorney General refuses to do what the law of her state requires, and defend it in federal court. That is, AG Kathleen Kane, a Democrat who supports gay marriage, will not defend the state law banning gay marriage, which has been challenged by a lawsuit. She held a press conference to say so. Excerpt:

Ms. Kane, who was elected attorney general last year and has been mentioned as a possible future candidate for governor, struck a political note in her brief announcement to an audience that cheered and applauded her decision.

“I looked at it this way, the governor’s going to be O.K.,” she said. She wondered, she added, who would represent “the Daves and Robbies, who represents the Emilys and Amys?”

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

That’s a politician, right there. She ought to be ashamed of herself.

Under Pennsylvania law, the governor’s office can pick up the defense, so the law won’t go undefended. Still, this is dereliction of duty with troubling implications for democracy. Kane is doing this not out of prudent professional discretion — that is, because she thinks the state’s law is likely to be struck down — but because she personally disbelieves in it. Via the Philly Inquirer:

Pennsylvania Attorney General Kathleen Kane announced on Thursday that she could not ethically defend the state’s ban on gay marriage – and would not do so against a lawsuit filed by the American Civil Liberties Union. “We are the land of the free and the home of the brave, and I want to start acting like that,” Kane told reporters during a raucous news conference at the National Constitution Center in Philadelphia. Dozens of supporters of same-sex marriage erupted into cheers and applause as she spoke.

You may back SSM, but let me ask you: are you really okay with state governments picking and choosing which laws they are going to defend? What if Pennsylvania backed SSM, 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?

In the recent Prop 8 case decided by the Supreme Court, the justices ruled that the State of California was the only party that had standing to appeal the federal court’s decision. California’s executive branch deliberately decided not to defend the law of the state in that case, because it had an ideological opposition to it. The majority had no recourse.

In his 2003 Lawrence dissent, Justice Scalia wrote:

Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct. See Romersupra, at 653.

One of the most revealing statements in today’s opinion is the Court’s grim warning that the criminalization of homosexual conduct is “an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” Ante, at 14. It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as “discrimination” which it is the function of our judgments to deter. So imbued is the Court with the law profession’s anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously “mainstream”; that in most States what the Court calls “discrimination” against those who engage in homosexual acts is perfectly legal; that proposals to ban such “discrimination” under Title VII have repeatedly been rejected by Congress, see Employment Non-Discrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments, H. R. 5452, 94th Cong., 1st Sess. (1975); that in some cases such “discrimination” ismandated by federal statute, see 10 U.S.C. § 654(b)(1) (mandating discharge from the armed forces of any service member who engages in or intends to engage in homosexual acts); and that in some cases such “discrimination” is a constitutional right, see Boy Scouts of America v. Dale530 U.S. 640 (2000).

Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. I would no morerequire a State to criminalize homosexual acts–or, for that matter, display any moral disapprobation of them–than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new “constitutional right” by a Court that is impatient of democratic change. It is indeed true that “later generations can see that laws once thought necessary and proper in fact serve only to oppress,” ante, at 18; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best.

The mainstream cultural consensus has shifted in a pro-SSM direction since Scalia wrote this, but the arrogance of the legal elite in the governing caste remains — as we see in Pennsylvania today. Kathleen Kane knows better than the citizens of Pennsylvania what’s good for the state, and she’s refusing to do her job because she reserves to herself the right to impose her own political (as distinct from prudential) judgments onto legal matters. At least Pennsylvanians, unlike Californians, have some alternative.

To make myself clear: I’m not making a value judgment in this post on the rightness or wrongness of legalizing same-sex marriage. I’m making a judgment on the wrongness of a state’s chief law enforcement officer deciding, on political grounds, not to defend a law of the state. If you think Kane is right to do this, you should explain why her decision would be just if she refused to defend a law that you favor.



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