I read in the Oct. 23 Butler Eagle that state Rep. Daryl Metcalfe intends to introduce legislation to impeach Pennsylvania Attorney General Kathleen Kane because she would not defend the commonwealth in a federal lawsuit challenging its ban of gay marriage. Metcalfe claims her refusal is a violation of her constitutional and statutory duty.
The article set forth Kane’s defense — that it was her opinion the Pennsylvania gay marriage prohibition law is not constitutional and Metcalfe’s claims are arrogant and misguided. She also stated Metcalfe has a “limited knowledge of the law.”
The Commonwealth Attorneys Act, adopted by the Legislature as the law of Pennsylvania, established the Office of the Attorney General and set forth the powers and duties of the attorney general. Section 204 of that law specifically states: “It shall be the duty of the attorney general to uphold and defend the constitutionality of all statutes so as to prevent their suspension or abrogation in the absence of a controlling decision by a court of competent jurisdiction.”
The use of the word “shall” in any legal context or law means the action is mandatory and not discretionary.
Therefore, under the law, the attorney general does not have the legal authority to choose what laws are to be enforced. She must defend all statutes and laws unless the Pennsylvania Supreme Court or the U.S. Supreme Court has declared that particular law unconstitutional.
Her personal opinion is immaterial and irrelevant.
Both the Pennsylvania Supreme Court and the United States Supreme Court have held that the Commonwealth Attorneys Act of 1980 is valid and the attorney general must defend the constitutionality of all enactments and laws passed by the Pennsylvania General Assembly.
And that includes any laws which ban gay marriage regardless of personal opinions.