The Daily Item, Sunbury, PA


August 12, 2013

Kane's refusal to defend DOMA


What if, should marriage be redefined in Pennsylvania, a county official were to deny a same-sex couple a marriage license due to his view of what marriage ought to be? If each executor of the law may decide for himself what the law ought to be, on what ground could same-sex marriage activists complain (as they surely would)?

In Kane's Pennsylvania, how do executive officials, absent a respect for the rule of law, determine when to enforce the law and when to ignore it? Analyst G. Terry Madonna of the Center for Politics and Public Affairs at Franklin & Marshall College puts Kane's calculus this way: "If she had chosen to push ahead and defend the statute, she would have had serious problems with the Democrats."

Are our laws enforceable only inasmuch as it is politically advantageous for the Attorney General to enforce them? Already special interests are lining up to lobby Kane to ignore laws they don't like. An assisted-suicide advocacy organization recently announced that it is pressuring Kane to ignore state law and to abandon an ongoing prosecution. If the rule of law doesn't matter, what reason is there for Kane not to side with this organization against Pennsylvania law, if she were to discern it to be politically advantageous?

When John Adams wrote in the Massachusetts Constitution that "to the end it may be a government of laws and not of men," it was in the context of the very brief Article XXX which strictly laid out the separation of powers in state government. Adams saw clearly that if public servants begin exercising powers not delegated to them, we become beholden not to the stability and order of law, but to the whim and ambition of politicians.

It is this separation of powers that Governor Tom Corbett referenced when he said that "the law is clear in Pennsylvania, that marriage is between a man and a woman (the legislature) has not changed it, nor have the courts of Pennsylvania changed it." It is not the role of the executive branch or local official to change it. Therefore we should applaud the Governor for taking legal action to enforce this law.

No matter where one stands on the question of the definition of the marriage, we can all agree that the rule of law is more stable, more just, and more American than the rule of politicians.

Randall Wenger, Chief Counsel for the Pennsylvania Family Institute

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