Meadville Tribune

January 24, 2014

While same-sex case looms, late-night comics give verdict

By John Finnerty
CNHI

— This week, our governor made an unintended appearance on “The Daily Show” with Jon Stewart, as the punchline of gag about a “Homophobic Olympics.”

Stewart’s “correspondent” Aasif Mandvi offered up the bizarre case of a Utah man who went on a hunger strike to protest gay marriage in that state. Stewart pooh-poohed the incident as “run-of-the-mill ignorance.”

It would take “a Lake Placid hockey miracle” to go up against the likes of Russian President Vladimir Putin in a competition of the most stark examples of homophobia, Stewart opined.

So where did “The Daily Show” turn for an American case of intolerance to compete against the likes of Nigeria, Uganda and Russia? It was Gov. Tom Corbett’s bungled attempt, in a television interview, to justify a ban on same-sex marriage by comparing it to incest between siblings.

The segment ends with Mandvi screaming, “Do you believe in ignorance?” and chants of “USA, USA!”

Pennsylvania’s status as a lightning rod of controversy stems from its position as the only mid-Atlantic state to bar same-sex marriage — a distinction that will soon be examined in court.

Advocates for gay marriage have expressed cautious optimism that 2014 could be the year that Pennsylvania’s ban is overturned. A federal judge has scheduled a summer trial for a challenge by the ACLU.

The law is being defended by the governor’s Office of General Counsel, with the help of outside legal experts. The general counsel was compelled to take over the case after Democratic Attorney General Kathleen Kane punted.

“I cannot ethically defend the constitutionality of Pennsylvania’s version of DOMA where I believe it to be wholly unconstitutional,” Kane said, referring to the federal Defense of Marriage Act.

Her decision outraged conservative lawmakers and prompted firebrand House state government committee chairman Rep. Daryl Metcalfe to author a resolution calling for Kane’s impeachment.

“Attorney General Kane has created a constitutional crisis by refusing to perform her assigned role and usurping the role of the courts,” Metcalfe argued in a memo to other lawmakers. “It is our duty to stop her from engaging in further misbehavior in office.”

Just five of the 203 representatives in the House signed on as co-sponsors of Metcalfe’s resolution.

An analysis of the issue by the Columbia Law Review noted that the right of an attorney general or chief executive to refuse to defend a law they deem unconstitutional has been argued since the earliest days of the nation.

Thomas Jefferson, upon taking office, resolved that the Sedition Act passed during the Adams administration was unconstitutional. Though a number of judicial reviews had determined that the Sedition Act was legal, Jefferson announced that because he believed it to be unconstitutional, he was going to ignore it.

Such executive decisions have arisen repeatedly over the last two centuries, with standards shifting a little here or there. In federal law, the bottom line has always been that presidents and attorneys general may refuse to defend laws they think are unconstitutional. Attorney General Eric Holder, for one, refused to defend the federal Defense of Marriage Act.

Kane was not the first attorney general to decline to defend a state law banning same-sex marriage, noted Leslie Cooper, a senior attorney in the ACLU’s New York office. In California, Gov. Jerry Brown, as attorney general, made an identical decision following that state’s Prop 8 ballot initiative, she said.

This week in Virginia, Attorney General Mark Herring announced that his office is supporting efforts to get that state’s same-sex marriage ban ruled unconstitutional.

A spokesman for Kane said she reached the same conclusion independently.

“There was no consultation in either direction,” spokesman Joe Peters said in a Thursday email. “This was Attorney General Kane’s decision based on the law, her oath of office to defend the Constitutions of Pennsylvania and the U.S., and ethical obligations as a lawyer to ensure constitutionally guaranteed equality for all.”

Corbett does not stand alone in his determination to defend the state’s law, of course. Republican attorneys general in Ohio and Utah are leading efforts to appeal federal court rulings in same-sex marriage cases.

As the court of late-night comedy issues its verdict on same-sex marriage, we seem to be racing toward a conclusion in the real courts, as well.

John Finnerty reports from the CNHI Harrisburg Bureau for The Meadville Tribune and other Pennsylvania newspapers owned by Community Newspaper Holdings Inc. Email him at jfinnerty@cnhi.com and follow him on Twitter @cnhipa.