Attorney General in Pa Won’t Defend Gay Marriage Ban in Court


Leaves Job To Republican Governor Tom Corbett

Kathleen Kane, the Attorney General of the state of Pennsylvania, said on July 11, 2013, that she will not defend the state’s gay marriage ban in court.  Under Pennsylvania law, it’s the Attorney General’s duty to defend the constitutionality of state laws.  But the law also says that the Attorney General may allow lawyers for the Governor’s office or Executive Branch agencies to defend a lawsuit if it’s more efficient or in the state’s best interest.

Kane’s Decision Not To Defend the Ban

I cannot ethically defend the constitutionally of Pennsylvania’s (law banning same-sex marriage) where I believe it to be wholly unconstitutional,” Kane, the first Democrat and woman to be elected to Attorney General, said.

Kane will instead leave the defense to the state’s Republican Governor Tom Corbett who wants to keep the ban that the American Civil Liberties Union is trying to strike down in the federal lawsuit, known as Whitewood v. Corbett. On behalf of twenty-three state residents, the suit was filed on July 9, 2013.  The plaintiffs are ten couples and one widow who lost her same-sex partner after twenty-nine years together, and two children of another such couple.  Collectively, they want the state to recognize their out-of-state marriages or want equal protections granted to straight married couples. This is the first known challenge to the state lawwhich effectively bans same-sex marriage.

Pennsylvania’s History with Gay Marriage

Pennsylvania is the only eastern state that doesn’t allow same-sex marriage or civil unions. The state law defining marriage as a civil contract in which a man and a woman take each other as husband and wife was passed in the legislature in 1996.  Trends in Pennsylvania show increasing support for same-sex marriage.  A Quinnipiac University Poll of 1,221 registered voters in Pennsylvania found that forty-seven percent favored same-sex marriage.

Comments From Party Chairmen

Democratic Party Chairman Jim Burn applauded her ” courageous and firm stand against a law with little merit.”  However, GOP Chairman Rob Gleason vehemently disagrees and attacked Kane, voted into office in 2012,, as “blatantly politicizing the Attorney General’s office.”

Brian Sims’s Testimony

Openly gay State Representative Brian Sims tweeted “ Attorney General Kathleen Kane, if you were a man, I’d marry you.”  He went on to say….”when the U.S. Supreme Court declared the federal DOMA unconstitutional, the decision thrust many states, Pennsylvania included, into the national spotlight.  Kane has decided that continuing to defend the Common’s DOMA has no legal merit.  Kane’s announcement is a step in the right direction to address the legal inequalities impacting LBT Pennsylvanians.  The truth of the matter is, our Commonwealth currently does not have a single LGBT civil right.”

Middle Schooler trying to Start GSA in Florida

Middle Schooler trying to Start GSA in Florida

ACLU Gets Involved

Bayli Silberstein, 14, an openly bisexual, is attempting to form a gay-straight alliance at her Carver Middle School in Leesburg, Florida.  However, rather than letting her do so, the school board is considering eliminating all non-academic clubs from middle and high school campuses.

Parents, Community Members, and Students Protest

On February 18, 2013, dozens of students, community members, and parents attended a meeting of the Lake County School Board on Monday.  In unity with Bayli, they wore read “Standing with Bayli” shirts.  They urged the board to allow the gay-straight alliance according to the newspaper the Orlando Sentinel. A decision from the board is not expected until April.

The American Civil Liberties Union

Bayli said her application was denied last school year.  She reapplied last November, but didn’t hear from the school’s principal about the status of the application. The school board has not denied Silberstein’s second application.  However earlier in February, it drafted a policy that would put an end to any club that is not tied to a specific class. If this policy goes into place, Bayli’s gay-straight alliance club will not form.

The American Civil Liberties Union reported that Silberstein wanted to form the alliance to combat bullying against LGBT students.  Bayli’s application cited instances of physical abuse and name calling.  Citing the federal Equal Access Act, the ACLU has advised the school district that it cannot pick and choose which clubs to allow based on what they think students should or should not discuss.

Those Opposed to GSA

Some think the real issue is bullying and that students would not get the support they need in a gay-straight alliance.  One school board member feels that gay-straight clubs were tantamount to “social engineering.” Just two years ago, a teacher in Lake County told his students that gay men and women should be allowed to openly serve in the military “only if they were sent to the front lines with no weapons.”

Gay-Friendly T-Shirts Get Ohio H.S. Students In Trouble

ACLU In Ohio Comes To Rescue

Celina High School in Celina, Ohio allows their students to routinely wear anti-abortion T-shirts as well as pro or anti-candidate T shirts, but not home-made T-shirts that read “I Support …(Rainbow) Express Yourself” and “Straight but Supportive.” Organized by sophomore Jimmy Walter, twenty students wore these home-made T-shirts to school on October 30th to show support for GLBT students.

T-Shirts Get Demerits, even Suspension

On another occasion, two students at Celina celebrated “Twin Day” with T-shirts that read “Lesbian 1” and “Lesbian 2. “  School officials ordered them as well to remove the shirts because the T-shirts were considered “political.” Some students were told that if they wore the shirts again, they would face suspension.

According to Ohio Superintendent Jesse Steiner, “the only reason they would be told that they couldn’t wear something is if it is a disruption of the educational process, or if it’s not allowed in the handbook.  And there’s a line in our handbook about drawing undue attention to yourself.”

ACLU Retaliates

In a November 1, 2012 letter written to Principal Jason Luebke of Celina City High School, James L Hardiman, Legal Director of ACLU of Ohio, wrote that “we are deeply concerned about the decision to prohibit wearing becausee these shirts caused “talk” and was “disruptive.” “If these reports are accurate, such action by the school constituted a clear violation of the students’ First Amendment to Free Speech, an unconstitutional infringement on the students’ free speech rights.

According to Hardiman, “by merely wearing shirts in order to express their support of gay students, these students are not materially and substantially interfering with the operation of school functions.  The T-shirts are in compliance with the dress code of the Celina City Schools’ Student Bylaws and Policies, Section 551 and were not found to be” hazardous, disruptive, damaging or distracting.” “http://ACLU challenges Ohio’s school’s ban on ‘straight but supportive’ t-shirts, LGBTQ Nation, 11/1/12.

T-Shirt Wearers Haven’t Disrupted Learning Environment, but Administration Has

The ACLU defends “ that unless a student acts in a disruptive, lewd, or obscene manner, the student must be permitted to wear to school a shirt that expresses their political opinion. Any retaliation toward students exercising their rights to free expression at school can subject the school, and school administrators, to additional liability because school officials may not interfere with students’ pursuit of constitutional rights, through intimidation or otherwise.”

 “Heckler’s Veto”

Because the school deems that students who do not agree with the T-shirts’ messages may become “upset and disruptive,” this amounts to a “heckler’s veto “which is not a valid justification for suppressing free speech.

Because the school allows some T-shirts with political messages to be worn while others are forbidden, this is considered a case of unconstitutional censorship.  “Students do not shed their First Amendment rights when they enter school,” according to Hardiman.

ACLU Waiting For a Reply

The ACLU has asked for the Celina’s Administration to reconsider their banning of T-shirts.  As Hardiman points out, “any retaliation toward students exercising their rights to free expression at school can subject the school, and school administrators, to additional liability because school officials may not interfere with students’ pursuit of constitutional rights, through intimidation or otherwise.”