Kane Wants Out of Same-Sex Marriage Suit

, The Legal Intelligencer

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Kathleen Kane

The second challenge to be brought in federal court against Pennsylvania's ban on same-sex marriage should take a similar tack to the first and focus on the state's secretary of health and secretary of revenue, the attorney general suggested in a motion filed Monday.

Kathleen Kane, the state's attorney general, is one of two defendants named in the second suit—she filed a motion to dismiss the case against her office Monday in the Eastern District of Pennsylvania.

Gov. Tom Corbett, the other defendant in the case, filed a motion to dismiss late last month.

Both were initially named as defendants in the first challenge, brought in July in the Middle District of Pennsylvania, but each were dismissed by the two-dozen plaintiffs in that case and replaced by the secretaries of health and revenue.

Those two officials just filed their answer to the plaintiffs' amended complaint in the Middle District challenge.

In it, they reiterated the argument advanced by the Corbett administration's lawyers in both challenges that the cases should be dismissed under the U.S. Supreme Court's 1972 decision in Baker v. Nelson. In their answer, they raised that argument as an affirmative defense.

U.S. District Judge John E. Jones III of the Middle District of Pennsylvania decided last month on a motion to dismiss from the secretaries that Baker isn't controlling because of "significant doctrinal developments in the four decades that have elapsed since it was announced by the Supreme Court."

They have asked to have the question certified for interlocutory appeal to the U.S. Court of Appeals for the Third Circuit.

Shortly after that first challenge was initially filed, Kane announced that Pennsylvania's law banning gay marriage was "wholly unconstitutional" and her office wouldn't defend it. The month before, the U.S. Supreme Court had gutted the federal Defense of Marriage Act by striking down the provision that defined marriage as being between one man and one woman. Pennsylvania's marriage law, sometimes called "mini DOMA," mirrors that language.

The responsibilities of the attorney general are too far removed from the actual enforcement of Pennsylvania's marriage law to implicate her as a proper defendant, Kane argued.

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