While Pennsylvania law currently prohibits same-sex marriage, proceedings in a federal court case to overturn Pennsylvania’s Marriage Law are slowly underway.
On Monday, the defendants in the federal case Whitewood v. Corbett filed separate motions to dismiss the charges against them. The defendants in the case include Pennsylvania’s Republican governor Tom Corbett, Secretary of Pennsylvania’s Department of Health Michael Wolf and Attorney General Kathleen Kane.
Although each party filed motions to dismiss the charges against them, Corbett and Wolf filed a motion to dismiss separately from Kane, due to the fact that Kane has said she would not defend Corbett or Wolf in court.
“We’re asking that the [case against the] Governor be dismissed on the merits and the fact that he’s not the appropriate party to the suit,” said Nils Hagen-Frederiksen, a 1984 College graduate and press secretary for Corbett’s Office of General Counsel, which is defending both Wolf and Corbett in the proceedings.
The Office of General Counsel acknowledges that the Secretary of Health would be the appropriate party for the suit, Hagen-Frederiksen added, but is asking for a dismissal on the merits in that matter.
As per federal court rules in the district in which the case is being tried, each party had to specify where the other parties stood with regards to the motion it was filing.
Neither the Whitewood plaintiffs, nor Corbett or Wolf, concurred with Kane’s motion to dismiss the charges against her. According to Corbett’s motion, Kane had no opinion with regards to his and Wolf’s motion to dismiss the complaint against them.
Law School professor Kermit Roosevelt said that Kane took no position on Corbett’s motion because “to say that she disagreed with Corbett’s motion would put her in the position of arguing against the statute, in court, which she’s not going to do.”
“She has said, out of court, that she thinks it’s unconstitutional,” Roosevelt added in an email, “and that gives her a reason (maybe) not to defend it in court.” But he said she likely took no position on the motion “because she is saying that she won’t participate in the litigation on the merits — she won’t defend the statute.”
In a statement, Joe Peters, director of communications for the Attorney General’s Office, reaffirmed Kane’s position that “Pennsylvania’s DOMA [Defense of Marriage Act] is wholly unconstitutional.”
However, he said that because Kane delegated defense of Corbett and Wolf in this matter to Corbett’s Office of General Counsel, and since she is not a proper party to the litigation, “there is no basis in law” for Kane to remain as a defendant in the matter.
However, 2002 Penn Law graduate John Stapleton, an attorney for law firm Hangley Aronchick, which — along with the American Civil Liberties Union of Pennsylvania — is representing the plaintiffs in the case, disagrees.
“In our view, regardless of her position on the statute, in her position as Attorney General, [Kane] is still a proper party” to this case, Stapleton said.
On Oct. 7, more light will be shed on the defendant’s current arguments, as that is when supporting briefs — documents outlining why each party’s motion should be granted — will be filed by each defendant.
However, Roosevelt, a professor of constitutional law, said that he expects that “all the defendants’ motions will be denied” and that he would “be surprised to see the case decided on pretrial motions.”
Stapleton agreed. “The plaintiffs are confident that we will move forward and ultimately get to trial on these issues,” he said.
However, Roosevelt noted that just because the motions will probably be denied, it doesn’t mean that the plaintiffs will ultimately win their case.
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