HARRISBURG, Pa. (AP) – After a late election night, Gov. Tom Corbett woke up in his Pittsburgh home at 4:30 a.m. Wednesday to read a federal judge’s 39-page decision telling him he had lost the fight to defend Pennsylvania’s law banning recognition of same-sex marriage.
Corbett, a Roman Catholic and an opponent of gay marriage, had already been told by his lawyers that he was unlikely to win at the next stop, the 3rd U.S. Circuit Court of Appeals in Philadelphia. After reading the decision, Corbett agreed, his aides said.
Then another battle awaited the Republican: fighting off any appearance that he dropped his defense of the law to bury a divisive political issue that could work against him in his uphill climb to win re-election Nov. 4.
Corbett decided it purely on the case’s legal merits, his staff and campaign aides insist, and they suggested it could anger his conservative supporters while scoring points with liberals who won’t vote for him anyway.
“For him politically, this may end up being a negative, but he did what was right,” said his chief of staff, Leslie Gromis Baker.
Corbett, of course, did not make his decision in a vacuum.
Last Monday, U.S. District Judge John E. Jones III revealed he would issue his decision the next day. That launched an influx of calls to Corbett by people trying to sway his decision, including social conservatives and Catholic Church representatives who wanted him to appeal and moderate Republican officeholders who did not want him to appeal.
Once Jones issued his decision Tuesday, the clock began ticking on Corbett’s response. By the time Corbett issued his statement Wednesday afternoon, more than 100 same-sex couples in his home county of Allegheny alone had already applied for marriage licenses, and one couple had been legally married.
Regardless of what drove Corbett’s decision, Democrats viewed it as a smart political move.
“It was the right legal decision, it was the right moral decision and, as it happens, it was the right political decision,” said former Gov. Ed Rendell, Corbett’s predecessor, who remains perhaps Pennsylvania’s most influential Democrat. “The last thing Corbett wants to do is rile up the Democratic base.”
What about the social conservatives who otherwise support Corbett?
“In the end, they’re going to vote for Tom,” Rendell said.
An appeal would have been problematic for several other reasons.
Pollsters say same-sex marriage is an issue popular not only with Democrats but also with many independent voters Corbett will need to win over in the fall campaign.
Fighting it came with a cost. State Treasurer Rob McCord said this week that Corbett had already spent $588,000 in legal fees for an outside law firm to defend the law.
And, lawyers say, there is the sensitive argument that Corbett would have to make to the appellate court: that Jones was wrong when he said the United States has a longstanding history of discrimination against gays.
That argument, Gromis Baker said, would be disrespectful and the administration would not want to make it.
The low-profile Corbett has spoken little about his decision beyond the statement his office issued Wednesday. In any case, law professors who closely watch the issue say Corbett received good legal advice.
For one thing, last year’s U.S. Supreme Court decision striking down part of the federal Defense of Marriage Act is a strong signal that the same majority of justices will agree with a wave of district court judges who are overturning state laws in its wake, said John G. Culhane, a law professor at Widener Law School in Delaware.
In addition, Jones is a highly regarded judge who wrote a well-reasoned opinion, said Carl Tobias, a law professor at the University of Richmond in Virginia.
And while it is theoretically possible to assemble a three-judge 3rd Circuit panel that would overturn Jones’ decision, that is unlikely to happen, Tobias said.