Both Gov. Tom Corbett and state Attorney General Kathleen Kane have been let out of a case challenging Pennsylvania’s ban on same-sex marriage, under a ruling announced by Commonwealth Court President Judge Dan Pellegrini from the bench Thursday morning.
The couples who brought the case had agreed to excuse Kane, who has called the ban unconstitutional, after her office said that it would comply with their discovery requests, said their lawyer, Alexander Bilus of Dechert. They couldn’t reach the same accord with the Corbett administration, he told the judge, which is why they wanted to keep Corbett in the matter as a defendant. Corbett is a Republican; Kane is a Democrat.
“This has really turned into a case about discovery,” Pellegrini said at the end of the half-hour argument. “Big issues go to minor issues,” he said.
Just before that, Gregory Dunlap, a lawyer from the state’s Office of General Counsel, had walked up from the back of the largely empty courtroom and whispered in the ear of one of the Lamb McErlane lawyers who is representing the state.
Pellegrini beckoned him to the bar, saying, “You’re the puppet master.”
“What I had said to our counsel was that the Office of General Counsel was always willing to work with opposing counsel to facilitate access to information that they would be able to get through subpoena without the need to serve a subpoena,” Dunlap said.
Bilus was satisfied, he said, and Pellegrini then released both the attorney general and the governor from the case, leaving the secretary of the state’s Department of Health as the remaining defendant.
“Generally, nobody cares who’s in the caption as long as the commonwealth is in the caption,” Pellegrini said, telling the lawyers at the start of the argument how he looks at the question of who should be included in the case caption.
Basically, the judge said, he asks himself, if the state doesn’t follow the eventual order of the court, “Who do I put in jail?”
“It would not be the attorney general,” Abbey Giunta, the lawyer representing Kane’s office, told the judge later in the argument. “It would be the proper government official who implements the marriage law.”
“That would be the Department of Health,” Pellegrini said.
Giunta cited Pellegrini’s September decision that had found that to be the case in the mandamus action that the Department of Health had filed in order to stop a Montgomery County clerk from issuing marriage licenses. The couples who brought the suit currently in front of Pellegrini were married this summer after getting licenses from that clerk, D. Bruce Hanes.
Corbett’s lawyers had argued in court papers filed last month that dismissing only Kane and not Corbett “implies a motive to inconvenience, harass and/or prejudice the governor with no legitimate justification.”
Kane had announced that in the wake of the U.S. Supreme Court’s decision in United States v. Windsor striking down the federal Defense of Marriage Act’s definition of marriage as being between one man and one woman, Pennsylvania’s version of DOMA is unconstitutional.
Corbett’s lawyers argued in their brief last month, “The publicly stated views of the governor and the attorney general as to the constitutionality of the marriage law and its defense against challenge in this case are not relevant to the discrete legal question properly before the court: Are the governor and the attorney general necessary parties in this case?”
“Because neither official is a necessary party for the same legal reason, both should be dismissed from this case at the same time,” they argued.
However, Pellegrini said Thursday that he sees it this way: “The attorney general’s position is specific, she believes that the law is unconstitutional and the governor’s position is that he thinks the law is constitutional, which sets up the issue pretty well.”