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In Pennsylvania, an Affront to Judicial Review

3:02 PM, Aug 5, 2013 • By CHRISTINE FLOWERS
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Kane’s supporters have argued that her willful inaction, so to speak, could also be excused under Section 204(a)(3) that, as noted above, allows the attorney general to defer to a prior controlling court decision. There is, however, no such precedent in Pennsylvania. Even if we were to accept that the recent Supreme Court decision in Windsor striking down Section 3 of the federal Defense of Marriage Act legitimized same sex unions at the federal level, this is not dispositive of whether a state has the right to define marriage according to its own terms. In fact, Justice Anthony Kennedy referenced federalism in his majority decision, a subject that was also the primary focus of Chief Justice John Roberts’ dissent. Justice Antonin Scalia sensed that some activists would attempt to use the overbroad equal protection language employed by Kennedy to “conjure” a right to same sex marriage, just as Harry Blackmun had pieced together an equally inauthentic “right” to abortion. But at issue in Windsor was a federal statute that invalidated marital unions sanctioned by the states. It cannot be read to mandate nationwide legalization of those unions at the state level.

Kane is following in the footsteps of Eric Holder, who famously refused to defend the federal version of DOMA against a variety of challenges in the federal courts, one of which led to the recent decision in Windsor. Supporters of Kane, Holder and other attorneys general who have taken similar steps argue that the laws will still be defended, albeit not by the parties entrusted with the obligation by law. That, in fact, will be the case in Pennsylvania as Governor Tom Corbett has just announced that the administration will take over the commonwealth’s defense.

But what those supporters fail to recognize is the damage that is done to the legitimacy and consistency of our legal system if we allow those in a position of authority to substitute their own personal judgment as to the constitutionality of a law for that of the courts. It opens the door to, if not exactly anarchy, an incremental weakening of the judicial branch. It also allows politics to have undue influence in the least political of the three governmental branches.

Finally, it creates opportunities for ultra-vires acts which are dishonestly cloaked under the veil of civil disobedience. Following Kane’s lead, the Registrar of Wills of Montgomery County, a district outside of Philadelphia, started issuing marriage licenses to same-sex couples. His justification, like that of Kane, was that he wanted to be on the “right side of history,” an exact quote. Fortunately, the grown-ups have awakened and the Pennsylvania Department of Health, which has jurisdiction over the issuance of marriage licenses, has just filed suit against the registrar seeking to enjoin him from issuing documents that have no validity in the commonwealth. 

Putting aside the question of what will ultimately happen to those couples who have already married (the Montgomery County District Attorney has already announced that such unions are invalid,) it is disturbing to see a public official violate the rule of law and call it justice. It’s fairly certain he won’t be the last.

Christine Flowers, a lawyer, is a columnist for the Philadelphia Daily News.

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