Pennsylvania attorney general refuses to defend gay marriage ban

Liz Goodwin
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FILE - In this March 27, 2013 file photo, demonstrators hold flags and chant in front of the Supreme Court in Washington on the second day of gay marriage cases before the court. The Supreme Court's landmark ruling on same-sex marriage has private employers around the country scrambling to make sure their employee benefit plans comply with the law. The impact of the decision is somewhat clear in the 13 states and the District of Columbia where gay marriage is currently legal - same-sex married couples must be treated the same as other spouses under federal laws governing tax, health care, pensions and other federal benefits. (AP Photo/Jose Luis Magana, File)

Pennsylvania Attorney General Kathleen Kale announced Thursday that she will not defend the state's gay marriage ban against a challenge brought by 21 gay Pennsylvanians who want to marry in the state or have their out-of-state marriages recognized.

"We are the land of the free and the home of the brave, and I want to start acting like that," Kane said at a news conference Thursday in Philadelphia. Kane, a Democrat, said she believes the state's law is unconstitutional and can't in good conscience defend it. The state general counsel will take over the case, she said.

The American Civil Liberties Union is backing the suit, which was filed this week and includes 10 same-sex couples and one widow. They argue that the state refusing to allow them to marry or recognize their out-of-state marriages violates their "fundamental right to marry as well as the Equal Protection Clause of the Fourteenth Amendment."

Kane, as well as Republican Gov. Tom Corbett, is a defendant in the suit. This Pennsylvania case, as well as others cropping up around the country, will likely force the Supreme Court to again take up the issue of gay marriage and answer advocates' calls to address the question of whether same-sex couples have a fundamental right to wed.

A same-sex couple in Michigan is arguing that the Supreme Court's June decision striking down the federal Defense of Marriage Act as discriminatory means the state cannot ban gay marriage. In that split decision, the justices wrote that the federal government has no right to intrude upon states' decision to confer the "dignity" of marriages on same-sex couples, but stopped short of ruling that gay people have a fundamental right to marry their partners. Gay couples are also suing over bans in Nevada, Illinois, Hawaii and New Jersey.