This morning, the Pennsylvania Commonwealth Court held a hearing in the case between Montgomery County Register of Wills, D. Bruce Hanes, and the Pennsylvania Department of Public Health. Hanes began issuing marriage licenses to same-sex couples in Montgomery County following the Supreme Court’s decision to overturn the Defense of Marriage Act in July. Hanes was sued by the Pennsylvania Department of Public Health, whom issued a writ of mandamus against Hanes to fulfill his duties in line with current Pennsylvania law, which defines marriage as being between one man and one woman.
The hearing opened with a statement from Judge Dan Pellegrini, clarifying that the hearing was not about Pennsylvania’s position on same-sex marriage, or the constitutionality of current marriage laws, but rather the authority of public officials to interpret the constitutionality of state law.
Lawyers for Hanes argued that in accordance with case law, Hanes was serving in the capacity of a judge, because he is a county clerk given statutory authority under the Orphans Court. Therefore, they claimed that Hanes was acting in accordance with the jurisdiction of the Supreme Court. Additionally, they said that the Department of Public Health has no substantial interest in the issuing of same-sex marriage licenses, as they are not being substantially harmed by Hanes’ actions. The defense claimed that the Office of the Attorney General is the only party within the state government with grounds to sue Hanes, which they have declined. Pennsylvania Attorney General , Kathleen Kane is a supporter of marriage equality, and sent a letter to the Department of Public Health clearly explaining that her office will not prosecute a suit against Hanes.
The Department of Public Health countered Hanes’ argument that he was a judge acting under the Supreme Court’s jurisdiction, as he is constitutionally a county official, and being defended by the county. They claimed that their department does have a substantial interest in the case, as the Department of Public Health manages marriage records, and Hanes’ actions have resulted in inconsistent and faulty record keeping. The representation for the Department said that a mandamus action is not the proper way to argue the constitutionality of a law, and the case was strictly about public officials following the law.
Judge Pellegrini said that he will rule on the case as soon as possible.
The Pennsylvania Commonwealth Court is an intermediate appellate court which has jurisdiction over appeals from the orders of certain state agencies, including the Department of Public Health, and designated cases involving the public sector and government regulation In 2007, the Pennsylvania Commonwealth Court heard the case against an LGBTQ inclusive hate crimes law, which provided legal protection to individuals attacked due to their actual or perceived sexual orientation and gender identity. The law was struck down by the Commonwealth Court on a technicality, a ruling that was affirmed by the Pennsylvania Supreme Court in 2008.
There was a large amount of media attention given to a court brief on the case, filed by lawyer’s for Pennsylvania Governor Tom Corbett, which compared the licenses given to same-sex couples to marriages between twelve year old’s. Corbett later called the statement “inappropriate.”
The case between The Department of Health and Hanes is one of two major legal battles Pennsylvania faces on the issue of same-sex marriage. In July, the American Civil Liberties Union of Pennsylvania sued the state on behalf of twenty-three plaintiffs for denying them rights afforded to heterosexual families.