In the first case challenging bans on gay marriage since the United States Supreme Court issued its decision on the federal Defense of Marriage Act, Pennsylvania is now front and center. The ACLU filed a lawsuit in federal court challenging Pennsylvania’s restriction of marriage to relationships between one man and one woman. As the skirmish begins, here are a few things to keep an eye on.
(1) Under Pennsylvania law, the Attorney General is charged with defending Pennsylvania’s laws in Court. Recently elected Attorney General Kathleen Kane supports gay marriage and is likely not inclined to do so. Will she uphold her oath and duty as Attorney General to defend Pennsylvania’s laws, including those she disagrees with? To do otherwise, absent serious conscientious objections, sets a dangerous precedent that seems to be increasingly the norm with prosecutors.
(2) If Attorney General Kane chooses not to defend the law, there are “loopholes” in the law that allow her to punt to other parts of the government. One of the places it could land is Governor Corbett’s administration. He is on record as opposing gay marriage. What will he do?
(3) The case has been assigned to Judge John Jones in the Middle District of Pennsylvania. For those who don’t recall, this is the same judge that decided the nationally covered case on the teaching of intelligent design in public schools. His decision disappointed many on the right. He is also no stranger to high profile cases. Because this matter is sure to face appeal, every move he makes will come under extreme scrutiny. This will likely lead to a slow and deliberate process. The question is will the subject matter and media coverage impact the decision. The filing of the case in the Middle District, based in Harrisburg, as opposed to the typically considered more liberal Eastern District in Philadelphia is also an interesting strategic choice.
(4) The case was filed by the ACLU. Little is known about the Plaintiffs at this point though. Often times, cases like this can rise and fall depending on how the parties in the case (not their lawyers) are perceived in the public eye. This is something to keep an eye on as things develop.
(5) This case will undoubtedly be around for a while and have an impact at the ballot box. With gubernatorial, congressional, and other large races just around the corner, those in the political arena will be forced to address this issue. It’s too early to tell which way it will move things, but it seems safe to assume it could create a seismic shift in electoral politics. Depending on what he chooses to do, this could be a life-line for Governor Corbett’s sagging poll numbers when he badly needs it. Conversely, it could drive the final metaphorical nail in his coffin if he makes the wrong move.
Regardless of one’s position on gay marriage, this story will be an interesting one to follow in the coming months.