Evita’s Back and She Supports Same-Sex Marriage

The Broadway production of Evita closed in January and re-opened in Philadelphia last week. Or so it seemed when Pennsylvania Attorney-General Kathleen Kane channelled Eva Peron and told a cheering crowd that she would not defend the state’s Defense of Marriage Act. DOMA was plainly unconstitutional, she said, because it defines marriage as between a man and a woman.

The newspapers carried only a few snatches from the press conference. But these fail to give the flavour of her speech, which owed more to the lyrics of the musical than the words of her law books. She declard that she taken a road to the moral high ground:

“In deciding which path to take, I looked at it this way. The governor’s going to be OK. He has a team of lawyers, very good lawyers. As a party to this lawsuit, I’m going to be OK. I have a good team of lawyers as well. But in thinking about who represents all of you, who represents the Daves and the Robbies and the Johns and the Emilys and the Amys? Who represents you? 

“Who is it in this commonwealth that stands up for your civil rights and your constitutional protections? In thinking of that I thought that the only person who does have that office and responsibility is the office of attorney general. And as attorney general. I choose you.

“Today the attorney-general chooses to represent all those without high-priced lawyers, all those who suffer discrimination, and inequality, those thousand of families who have been denied the dignity and respect that the constitution protects and guarantees in marriage equality. Today we represent everyone who does not have representation.”

“I choose you.” Mrs Kane has discovered a higher law than her legislature – her fan club among the oppressed and lawyerless. Mrs Kane blushed, smiling, at the applause. As Evita sings, “But all you have to do is look at me to know that every word is true.” The parallels with Santa Evita’s appeal to the voters were uncanny:

The popular Democratic Attorney General, who received more votes than Barack Obama in the 2012 election, probably hopes to be elected Governor or Senator in the not-too-distant future. She is treating marriage as a political stepping-stone rather than a serious moral issue.

How did this come about?

In 1996, Pennsylvania’s General Assembly amended its consolidated statutes to state: “It is hereby declared to be the strong and longstanding public policy of this Commonwealth that marriage shall be between one man and one woman.” So not only did the legislators follow US President Bill Clinton’s lead in endorsing a traditional view of marriage, they declared that this view was by no means based on whim, bias, or convenience, but on policy settled from time out of mind. It is a rash lawyer who chooses to nullify such emphatic language with a wave of her hand.

To be sure, the recent 5-4 Supreme Court decision in US v. Windsor demonstrates that Mrs Kane’s personal opposition to DOMA is not unfounded. Not that she needed a precedent, mind you, for in her eyes it would be highly unethical for her to defend a statute which defines marriage as between a man and a woman. Once again, Evita comes to mind:

Because Republican Governor Tom Corbett, who opposes gay marriage, is named in the ACLU’s lawsuit, Pennsylvania’s statute will probably not go undefended. However, the Mrs Kane’s audacious move is sure to undermine confidence in the rule of law.

Ordinary voters do not understand the subtleties on which her reasoning, such as it is, is based. Whether or not they support same-sex marriage, they have a reasonable expectation that their elected officlals will enforce existing laws. They do not expect them to open the gates of the City to the Vikings, no matter how honeyed their promises or how nicely they knocked. All they will see is that an official of the executive branch sworn to defend and obey the constitution is so sure of her own genius that she has bypassed the judicial branch. 

What if she were to see clearly that all gun control laws are plainly unconstitutional because they infringe upon “the right of the people to keep and bear Arms” guaranteed by the Second Amendment? American courts are pilloried daily in the press, but is Mrs Kane right to treat the balance of powers as a superannuated relic of the dismal, homophobic past?

“A state’s attorney doesn’t get to pick and choose what laws she wants to prosecute,” says retired judge David A. Erickson, of Illinois Institute of Technology’s Chicago-Kent College of Law. “What if the state’s attorney was a person who doesn’t believe in hate crimes? You can’t just say I’m not going to enforce this law or defend it because I don’t believe in it or I don’t think so. That’s flat-out wrong.” 

The dispute over same-sex marriage has encouraged Evita impersonators to spring up across the United States. The attorneys general of Illinois and California have also refused to defend state legislation against same-sex marriage. And in 2011 President Obama directed Attorney-General Eric Holder not to defend the Federal version of DOMA.

What are the long-term consequences of officials ignoring or nullifying the law? There is an ominous precedent in American history.  

It began with the policy of the third president, Thomas Jefferson, on the Sedition Act of 1798. This oppressive act lapsed on John Adams’s last day in office, but several cases were pending in the courts when Jefferson became President. He dropped the prosecutions. This was a sensible response to an unjust act which had already expired.

The Sedition Act would certainly have been ruled unconstitutional had it ever come before the Supreme Court. However, Jefferson’s views on the law – which had been used mostly to prosecute members of his party – now look quite extreme.

They are expressed in the Kentucky Resolution of 1798, of which he was the anonymous author. In response to the unpopular Sedition Act, Kentucky’s legislature declared that each state had the power to declare whether or not a Federal law were "unauthoritative, void, and of no force". And the states, acting together, had the power to nullify, or invalidate, such a law.

At the time, the Kentucky Resolutions had little effect. They were even repudiated by most of the other states in the infant nation. However, as tensions grew within the Union, their spirit was revived as the theory of nullification. Eventually this doctrine, which was elaborated by the great South Carolina politician John C. Calhoun, was used to justify the secession of the southern states and the ensuing slaughter of the American Civil War.

The refusal by same-sex-marriage-friendly attorneys-general to defend DOMA is unlikely to lead to insurrection. This is the stuff of political pot-boilers. But justice must be seen to be done. Unequal enforcement of the laws of the land enrages people and is a sure recipe for civil unrest. Jefferson himself wrote in the Kentucky Resolution that “unless arrested at the threshold,” injustice must “necessarily drive these States into revolution and blood”.

Injustice is what the crowds are protesting after George Zimmerman’s acquittal of the murder of Trayvon Martin. Their complaint is that there is one law for whites and another for blacks. President Obama’s response on Sunday to the unrest was that Americans should respect the legal system. “We are a nation of laws, and a jury has spoken,” he said.

But if attorneys general don’t respect the law, can you fault the crowds for following their lead? The smug sophistry shown by Kathleen Kane is another sign of how capitulation over same-sex marriage is gradually corrupting not just marriage, but the law itself.