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1:13-cv-01861 #40

1:13-cv-01861 #40

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Published by Equality Case Files
Doc 40 - Brief in support of Kane's Motion to Dismiss
Doc 40 - Brief in support of Kane's Motion to Dismiss

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Categories:Types, Business/Law
Published by: Equality Case Files on Oct 08, 2013
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07/12/2014

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IN THE UNITED STATES DISTRICT COURTFOR THE MIDDLE DISTRICT OF PENNSYLVANIADEB WHITEWOOD, SUSANWHITEWOOD, FREDIA HURDLE,LYNN HURDLE, EDWIN HILL, DAVIDPALMER, HEATHER POEHLER, KATHPOEHLER, FERNANDO CHANG-MUY,LEN RIESER, DAWN PLUMMER,DIANA POLSON, ANGELA GILLEM,GAIL LLOYD, HELENA MILLER,DARA RASPBERRY, RONGEBHARDTSBAUER, GREG WRIGHT,MARLA CATTERMOLE, JULIALOBUR, MAUREEN HENNESSEY, A.W.,K.W., DEB WHITEWOOD
and 
SUSANWHITEWOOD::::::::::::::No. 1:13-CV-1861(Judge Jones)Electronically FiledPlaintiffs::v.::THOMAS W. CORBETT, MICHAELWOLF, KATHLEEN KANE, MARY JOPOKNIS
and 
DONALD PETRILLE, JR.,:::Defendants:DEFENDANT KATHLEEN KANE’S BRIEF INSUPPORT OF HER MOTION TO DISMISS ALLCLAIMS AGAINST HER I.STATEMENT OF THE CASE
This is a civil rights action brought bya group of 23 Plaintiffs made up of lesbian and gay couples and the children of those couples who live in theCommonwealth of Pennsylvania. Plaintiffs challenge the constitutionality of certain sections of Pennsylvania’s Marriage Law, 23 Pa. C.S. §§ 1101,
et seq.
, as it
Case 1:13-cv-01861-JEJ Document 40 Filed 10/07/13 Page 1 of 11
 
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 pertains to the marriage of same-sex couples. Plaintiffs allege that sections 1102and 1704 of the Marriage Law violate their Due Process and Equal ProtectionRights as afforded by the Fourteenth Amendment to the United States Constitution.Defendant Kathleen Kane, the Attorney General of Pennsylvania, is neither enforcing nor has she threatened to enforce the Marriage Law against the Plaintiffs.Accordingly, she has filed a motion to dismissall claims against herfor lack of standingand for failure to state a claim,pursuant to Fed. R. Civ. P. 12(b)(1) and(6).
1
This brief is being submitted in support of themotion inaccordance withLocal Rule 7.5 and the Court’s Order of September 20, 2013 (Doc. 20).
II.FACTS
Pennsylvania’s Marriage Law, 23 Pa. C.S. §§1101,
et seq.
, governs marriagein the Commonwealth of Pennsylvania. In 1996, the General Assembly amendedthe Marriage Law to definemarriageas “[a] civil contract by which one man andone woman may take each other for husband and wife.” 23 Pa. C.S. § 1102. Theamendmentalso declared that definition to be the public policy of theCommonwealth,and it rendered same sex marriages entered into inother  jurisdictions void in the Commonwealth. 23 Pa.C.S. §1702. Together,sections1102 and 1704currentlyprevent same sex couples from becoming married, and
1
Thomas W. Corbett (Governor), Michael Wolf (Secretary ofthe PennsylvaniaDepartment of Health), Mary Jo Poknis (Register of Wills of Washington County),and Donald Petrille, Jr. (Register of Wills and Clerk of Orphans’ Court of BucksCounty) are also named as defendants in this action.
Case 1:13-cv-01861-JEJ Document 40 Filed 10/07/13 Page 2 of 11
 
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 prevent their out-of-state marriages from being acknowledged within theCommonwealth of Pennsylvania.Plaintiffs sueAttorney General, Kathleen Kane in her official capacity,citingthe Commonwealth Attorneys Act, 71 P.S. § 732-204. (
See
Doc. 1 at ¶ 95.)Although the Pennsylvania Constitution designates the Attorney General as the“chief law officer”of the Commonwealth, her duties are prescribed by the GeneralAssembly in theCommonwealth Attorneys Act. Pa. Const. art. 4, §4.1.Among the duties that the Commonwealth Attorneys Act givesthe AttorneyGeneralis the responsibility to provide,
upon request 
, legal advice to the Governor or the head of an executive agency,pertaining to the exercise of their official powers or the performance of their duties. 71 P.S. §732-204(a)(1). In providingthis advice, the Attorney General must “uphold and defend the constitutionality of all statutes so as to prevent their suspension or abrogation in the absence of acontrolling decision by a court of competent jurisdiction.” 71 P.S. § 732-204(?)(3?). No legal opinion from the Attorney General has been requested by theGovernor or any Commonwealth Agency head regarding the Marriage Law, andthe Plaintiffs have not made any assertion that such an opinion was issued.The only other duty of the Attorney General under §732-204 that arguablyrelates to this matter is her responsibility to defend the Commonwealth and itsagencies in civil litigation. 71 P.S. §732-204(c). She may, however, delegate that
Case 1:13-cv-01861-JEJ Document 40 Filed 10/07/13 Page 3 of 11

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