On Tuesday the Corbett administration sued to stop the Montgomery County register of wills from issuing marriage licenses to same-sex couples. Since July, when Attorney General Kathleen Kane called the state’s law banning gay marriage unconstitutional, Register of Wills D. Bruce Hanes has issued more than 30 licenses to gay couples. Hanes has said he wanted to come down “on the right side of history and the law.”
In two separate actions, the state Health Department filed a petition seeking a “cease and desist” order against Hanes, while Gov. Tom Corbett’s general counsel sent a strongly worded letter to the state attorney general, accusing her of voiding her duty for refusing to defend the law. The petition, filed in Commonwealth Court against Hanes, demands that he be prohibited from issuing any more such licenses and instead be required to enforce Pennsylvania’s Marriage Law. “The clerk’s actions are in direct defiance of the express policy of the commonwealth that ‘marriage shall be between one man and one woman,’ ” wrote chief counsel Alison Taylor for the Health Department.
Hanes decision to begin granting applicants the licenses came last week after being approached by a lesbian couple who wanted to marry. After consulting an attorney, Hanes decided to begin issuing the licenses on his own accord. He told MSNBC he was fulfilling his oath to uphold the State Constitution, which he feels is at odds with the state law that bans same-sex couples from marrying.
The Health Department, which oversees marriage licenses for the state, contends in its complaint that Hanes’ actions interfere with the agency’s administrative responsibilities and would likely lead to illegal claims for benefits. A department spokeswoman declined to comment further.
The developments come the same day that Republican Gov. Tom Corbett’s office indicated that it would defend the state’s marriage law in a separate legal challenge filed by the American Civil Liberties Union.
Attorney General Kathleen Kane, a Democrat who supports same-sex marriage, had said earlier this month that she wouldn’t defend the state in that suit because she believes the law to be unconstitutional.
Hanes’s move comes weeks after the American Civil Liberties Union joined a Philadelphia law firm in challenging the state’s ban on gay marriage on behalf of nearly a dozen same-sex couples. Michael Clarke, the solicitor for the register of wills who advised Hanes to issue the licenses, said the attorney general’s position and her statement last month was a huge factor into his decision to advise Hanes to issue the licenses. “The way I saw it, the only way we could deny them a license would be on the grounds that they were women, and in our eyes that violates Pennsylvania’s constitution, which says equal rights cannot be denied based on an individual’s sex,” Clarke says
Legal scholars say that’s a pretty solid argument, but it’s up to the court to decide whether Hanes had the authority to act on it unilaterally. “Hanes is clearly right on the law. The question is does a local official have the right to follow the law rather than the government of which he is a part,” says Burton Caine, a professor of constitutional law at Temple University and a Montgomery County resident. “I believe that he does have the authority.”
Pennsylvania is the only northeastern state without same-sex marriages or civil unions, and whether Hanes’s bold effort will prove successful remains to be seen, but it may be a small comfort for gay couples in the state to know someone is on their side. The legal status of the gay marriages registered in Montgomery County is unclear. In other states with same-sex marriage bans, licenses issued by defiant local officials have been voided by courts. A 1996 state law defines marriage as a civil contract in which a man and a woman take each other as husband and wife. It says same-sex marriages — even if entered legally elsewhere — are void in Pennsylvania. The ACLU has sued to have the law overturned. The state was granted an extension to respond to that lawsuit on Monday. Officials must now respond by Sept. 16. Recent polls show a majority of state residents favor gay marriage in Pennsylvania, even though bills to legalize it have gone nowhere in recent years in the Legislature.