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Pennsylvania attorney general refuses to defend state in same-sex lawsuit

By Dave Warner

PHILADELPHIA (Reuters) - Pennsylvania Attorney General Kathleen Kane refused on Thursday to fight a lawsuit brought by the American Civil Liberties Union challenging the state's ban on same-sex marriage.

The lawsuit is believed to be the first federal case since the U.S. Supreme Court ruled on June 26 that the U.S. government must recognize same-sex marriages in states where it is legal.

Kane, a Democrat who supports same-sex marriage, announced her decision at a press conference in the National Constitution Center in historic Philadelphia.

"I cannot ethically defend Pennsylvania's version of DOMA," Kane said, referring to the federal Defense of Marriage Act, overturned by the high court last month.

"It is now the time here in Pennsylvania to end another form of discrimination," Kane said to a crowd of about 200 supporters gathered at conference, many carrying signs reading "Out for Freedom" and cheering her decision.

"We are the land of the free and the home of the brave and I want to start acting like that," she said.

By declining to defend the state, Kane effectively tosses the issue to Governor Tom Corbett, who can decide to appoint another state lawyer to the task. Pennsylvania General Counsel James Schultz said his office is reviewing the issue.

Kane and Corbett, a Republican who opposes gay marriage, are both named in the federal lawsuit that was filed in Harrisburg this week.

The ACLU sued on behalf of 23 people, including potential marriage candidates whose unions would not be recognized under current Pennsylvania law.

The lawsuit asks the court to allow the plaintiffs and all other same-sex couples the right to marry in Pennsylvania, and also asks that the marriages of same-sex couples validly obtained in other states be recognized by the state.

"The couples in this lawsuit are united by love, family and commitment, which are the cornerstones of marriage. They are married in every sense of the word, except one - under Pennsylvania law," said Witold Walczak, ACLU of Pennsylvania's legal director and one of the attorneys representing the plaintiffs.

The 52-page lawsuit, whose plaintiffs include 10 same-sex couples, claims Pennsylvania's Defense of Marriage Act violates the equal protection clause of the 14th Amendment to the U.S. Constitution.

In 1996, the act was amended to "expressly prohibit marriage for same-sex couples," according to the lawsuit. It also included the voiding of any same-sex marriage of state residents that might have been recognized in another state.

Plaintiffs include a widow whose spouse was a woman and therefore "not provided the protections afforded to widows under Pennsylvania law," and two young children of a gay couple whose inability to marry "harms them materially by reducing family resources and stigmatizes them by denying their family social recognition and respect," the lawsuit said.

The U.S. Supreme Court's decision stopped just short of declaring a nationwide right to same-sex marriage by overturning the federal Defense of Marriage Act.

Thirteen U.S. states and the District of Columbia recognize gay marriage. Among them, Delaware, Minnesota and Rhode Island legalized gay marriage this year.

Pennsylvania is among six potential states targeted by gay marriage advocates for a future push to legalize same sex nuptials in 2015 and 2016, according to Freedom to Marry advocacy group.

Gay rights activists in Pennsylvania applauded Kane's refusal to defend the state in the lawsuit.

"If the highest people in the land responsible for making sure laws take effect are unwilling to actually do that then it calls into question why we need these laws," said Ted Martin, executive director of Equality Pennsylvania.

Kane's decision was criticized by Pennsylvania GOP Chairman Rob Gleason, who said on the party website "it is unacceptable for Attorney General Kathleen Kane to put her personal politics ahead of her taxpayer-funded job by abdicating her responsibilities."

(Additional reporting by Michael Sadowski in Harrisburg, Pa.; Editing by Barbara Goldberg, Richard Chang and Andrew Hay)

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