Taking the Law Into Her Own Hands?

Last week, Pennsylvania Attorney General Kathleen Kane announced that her office would not defend the state against a lawsuit seeking to overturn the state’s ban on same-sex marriage.  In fact, she said she “could not” defend the state because the law is unconstitutional – the same conclusion the U.S. Supreme Court recently reached about a comparable federal law.

Supporters of the law have criticized her decision, noting that as the state’s elected attorney general, it’s Kane’s job to defend state law regardless of how she feels about it.  Deciding on a law’s constitutionality, they note, is a job for the courts, not the attorney general.

It’s not an unreasonable argument.  That’s one of the reasons states have an attorney general:  when someone sues the state, the attorney general defends the state against the suit.

In the wake of Kane’s refusal to defend Pennsylvania in this matter, some public officials are calling on her to resign, some newspapers are calling on her to resign, and some ordinary folks are calling on her to resign.

On one hand, The Curmudgeon understands their position and is sympathetic to it.  If she was elected to defend state law and refuses to do so, what good is she?

On the other hand, though, consider this.  What if someone found an obscure Jim Crow law still on the books – say, something that prohibited white people and non-white people from dancing together in public?  Would anyone expect the attorney general to defend the state against a lawsuit seeking to overturn such a law?  Would anyone complain about her deciding that she needed to interpret the state constitution herself rather than just automatically defend every law that’s on the books?  Would anyone – well, except your occasional racist – think anything other than “Thank goodness someone around here’s exercising a little common sense?”

In short, aren’t public officials elected to exercise some judgment, some discretion?  And isn’t that what the attorney general has done in this case, whether we happen to agree with the judgment she’s exercised or not?  And isn’t that why we have elections:  so voters can decide whether they’re satisfied with the judgment their elected officials are exercising?

So where do you draw the line?  Is there a point where she’s allowed to interpret the law and a point beyond which she has no choice?  Does anyone know where that point might be?  How do we know when someone’s gone beyond that point?

It’s not an easy question.  Kane is the first Democrat elected attorney general in Pennsylvania since Pennsylvania started electing its attorney general and she’s the first woman elected to the position as well.  She just took office, so she doesn’t stand for re-election for another three-and-a-half years.  That election could very well turn out to be a referendum on her actions of last week.  Of course, a cynical observer might suggest that her very public announcement of last week was actually her first campaign speech in the state’s 2017 gubernatorial election.

Time will tell on all counts.

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