PA Attorney General Refuses to Defend Marriage Law – An Insider’s View

Editor’s note: Last week, the ACLU filed a federal lawsuit to overturn Pennsylvania’s marriage law. In response, in a stunning move, Pennsylvania’s attorney general refused to defend the law. The Center for Vision & Values contacted Pennsylvania Family Institute President Michael Geer for a battlefront view.

V&V: You had a busy week last week on the legal front. What happened?

Geer: The week began with a phone call from a major national newspaper reporter, from whom I learned that the ACLU was about to file a federal lawsuit seeking to overturn Pennsylvania’s marriage law, and redefine this ageless institution. The week ended with Pennsylvania’s attorney general announcing that she would refuse to fulfill the obligation of her office and defend our state law in court. In between were numerous national, state, and local media interviews, followed by time spent at the capitol organizing a response and crafting legal and cultural strategies to protect and strengthen marriage.

V&V: You’ve been running PFI in Harrisburg for more than 20 years now. Are you surprised by the AG’s refusal to defend Pennsylvania’s marriage law? Do you recall anything similar happening?

Geer: There really is no precedent that matches the blatantly political move by Attorney General [Kathleen] Kane. Even the lead counsel in the ACLU’s lawsuit against our marriage law called her decision “an earthquake moment.” In a television interview during last year’s primary campaign for attorney general, then-candidate Kane stated, “The attorney general does not have the right to pick and choose which laws he or she enforces.” She said doing so injects politics into the job and, “That’s a dangerous proposition.” Even so, I was not surprised at Kane’s action – she is following precedents set by AG’s and other top elected officials in California, Illinois, and elsewhere, and by those in the U.S. Department of Justice on this issue. It really is a dangerous proposition, one that’s very damaging to our political system and the rule of law. I hoped for better from Kathleen Kane, but was not surprised when she did not deliver on her promise

V&V: Is this issue pertinent to people in other states around the nation?

Geer: It is in many ways – most notably because ultimately the ACLU is seeking to not only overturn marriage laws in Pennsylvania, but to impose a redefinition of marriage on the entire country. Such a Roe v.Wade-type sweeping decision would certainly not end the debate on the issue, but would usher in significant restrictions on religious liberty and free speech, not to mention the impact on marriage itself and the well-being of children.

V&V: Is the ACLU filing similar suits in other states. If so, why? Do you detect a political agenda beyond the legal implications of these cases?

Geer: Yes and yes. In addition to the lawsuit in Pennsylvania, the ACLU announced that it was also planning to file constitutional challenges in Virginia and North Carolina. Quite clearly, they are hoping to bring one or all of these cases to the U.S. Supreme Court to have “same-sex marriage” imposed on every state. But it also appears clear to me that the ACLU and their allies hope to use this issue to their favor in gubernatorial races in Pennsylvania and Virginia and in the U.S. Senate race in North Carolina. Whether they succeed in that depends on whether pro-family citizens recognize the threat and engage in the political process and vote.

V&V: For the record, and for those unaware of Pennsylvania’s system of government, Attorney General Kane is a Democrat, elected separately from and not appointed by Governor Tom Corbett, a Republican. Should we assume that Kane acted independently of Corbett, and perhaps without Corbett’s support? What will the governor’s response be?
Geer: Gov. Tom Corbett has consistently expressed agreement with the principle that marriage is the union of one man and woman, and support for our Defense of Marriage Act, which was passed overwhelmingly in 1996. We have every confidence that the Corbett administration will step up and vigorously defend our marriage law. Our Independence Law Center will be there to assist in any and every way.

V&V: Who are the named Pennsylvania defendants and why were they chosen?

Geer: Named in the lawsuit were the Pennsylvania governor and attorney general, the secretary of health and two registers of wills—one in Washington County in the southwest, and one in Bucks County in the southeast. There are likely both procedural and political reasons for the selection of these defendants. Thankfully, though, since the attorney general is shirking her statutory duty to defend the law the plurality of defendants permits others to defend the law.

V&V: What’s the reaction like among the grassroots you’ve been dealing with? And, have you seen any polling on the issue?

Geer: We’re seeing a strong reaction from the grassroots, looking for ways they can be involved to protect marriage from redefinition, and we’re excited to partner with anybody wishing to take a stand. Regarding polling, the ACLU claims that polls on this issue are on their side. If so, why go to court and short-circuit the political process? Courts are not a forum for polls or public opinion; at least they shouldn’t be. The only polls that truly matter are on election day, when we the people cast our vote for candidates, or on referendum issues. Time after time, polls in advance of votes on marriage indicated support for marriage redefinition, but when the votes were cast, marriage between one man and one woman has been nearly always the clear winner.

V&V: Is there a silver lining here?

Geer: It’s never a happy occasion to see one of the foundational institutions of civilization under assault, especially one that has served humanity and especially children so well. However, marriage has been under severe challenge for decades in our nation. It didn’t begin with last week’s lawsuit. From epidemic levels of divorce (greatly accelerated by the introduction of “no-fault” divorce in the 1970s) and the expanding cohabitation culture, marriage is in great need of strengthening. So, perhaps a silver lining is that this case will cause Pennsylvanians—from our elected officials to rank and file citizens—to consider why government recognizes marriage in the first place, and why it’s so important to protect and restore it. I think when they do that openly and honestly, they’ll conclude that marriage is and should remain the union of one man and one woman. That is our hope and our prayer.