A visitor to Richmond can’t leave without a trip to John Marshall’s house, a living shrine to the greatest chief justice in the history of the United States. Passing through the halls of his former home, it is as if the spirit of the great man is present in the articles he used and the rooms he inhabited. The courtly tour guide will narrate his history for you in a pleasing Virginia lilt, and you will come to realize that this country owes as much to Marshall as to Adams, Franklin and to the justice’s own illustrious cousin, Jefferson.
Lawyers understand the debt owed to John Marshall, the man who raised the third branch of government to co-equal status with the legislature and, perhaps more importantly, the executive. When the important documents of our founding are discussed, the Declaration of Independence and the Constitution are the obvious and most prominent ones for any layman. It is not unlikely, however, that a lawyer would add the text of Marbury v. Madison to the list, since it was in this landmark Supreme Court case that John Marshall established the principle of judicial review, writing: “It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is.”
That principle has remained constant for the past two centuries. Unfortunately, judicial review has recently come under attack in the Commonwealth of Pennsylvania, the state that gave this country the framework for her legal system.
Attorney General Kathleen Kane announced at a carefully staged press conference last month at the National Constitution Center (irony not lost here) that she would not defend the commonwealth’s ban on same-sex marriage against a challenge that had recently been filed by the American Civil Liberties Union in federal court. Pursuant to Pennsylvania’s 1996 Defense of Marriage Act, which closely tracked the federal version, marriage is defined as a union between one man and one woman. In refusing to defend against the lawsuit, Kane assured the receptive crowd that she was not allowing her own personal views on same-sex marriage, which she supports, to govern her decision on whether to represent the commonwealth in court. Instead, she gave the following explanation for her action:
“I cannot ethically defend the constitutionality of Pennsylvania’s [law banning same-sex marriage] where I believe it to be wholly unconstitutional.”
Then began the series of press appearances on local and national media where the woman who had stated during her campaign that politics had no place in the attorney general’s office suddenly looked very much like a candidate pursuing higher office. On a local public radio station, Kane excused her failure to defend the statute despite a clear mandate to do so under Section 204(a)(3) of Commonwealth Attorney’s Act which states that “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 jurisdiction.” Kane pointed to another provision, Section 204(c) which permits her office to “authorize the General Counsel or the counsel for an independent agency to initiate, conduct or defend any particular litigation in [her] stead” where she determines that it is more efficient or “otherwise in the best interest of the Commonwealth.”
Kane apparently believes that it is in the best interest of the Commonwealth if its attorney general does not defend a law that she believes to be “wholly unconstitutional.” That would make sense only if she had the right to determine the constitutionality of that law. However, her office does not give her or any lawyer not currently on the bench or in the legislature the authority to make that call. A simple reading of Marbury would have reminded Kane of the limits of her power and office.
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.