Commonwealth Court Judge Dan Pelligrini ruled today that Montgomery County Register of Wills, D. Bruce Hanes, does not have the authority to issue marriage licenses to same sex couples. Hanes began issuing licenses to same sex couples in July, following the Supreme Court’s repeal of the Defense of Marriage Act. He was then sued by the Pennsylvania Department of Health, for acting in defiance of Pennsylvania state law, which defines marriage as being between a man and a woman. Hanes had officiated 174 same sex marriages, including four on Wednesday.
Lawyers for Hanes argued in his defense that according to case law, the county clerk is a judge, and Hanes was therefore acting under the jurisdiction of the Supreme Court, which has ruled that marriage inequality is unconstitutional. However, the final decision against Hanes stated that he does not have the authority to decide if state law is constitutional. In his opinion, Judge Pelligrini wrote, “Even if Hanes is correct in his view that portions of the Marriage Law are unconstitutional… unless and until either the General Assembly repeals or suspends the Marriage Law provisions or a court of competent jurisdiction orders that the law is not to be obeyed or enforced, the Marriage Law in its entirety is to be obeyed and enforced by all Commonwealth public officials.”
The ruling did not directly address the legal status of the marriages which Hanes has already officiated, though it is likely that they are considered void in Pennsylvania.
The same sex marriage licenses issued by Hanes caused a division of opinion among state mayors. Philadelphia Mayor Michael Nutter and New Hope Mayor Larry Keller both declined to officiate weddings for same sex couples. Both mayors support marriage equality, but stated that they would not officiate a wedding in defiance of Pennsylvania marriage law. State College Mayor, Elizabeth Goreham, officiated one wedding between a same sex couple who obtained a marriage license in Montgomery County, against the advice of the borough. John Fetterman, the Mayor of Braddock in Western Pennsylvania, has officiated 11 same sex marriages. Fetterman said he was unbothered by potential legal problems, stating, “I’d rather be a principled civilian than a cowardly or homophobic mayor.”
While the case against Hanes has been decided, the lawsuit between the American Civil Liberties Union of Pennsylvania and the state of Pennsylvania is ongoing. The ACLU is suing Pennsylvania on behalf of a number of same-sex couples and their families for depriving them of rights afforded to heterosexual couples. State Attorney General, Kathleen Kane, has refused to defend the state, leaving the responsibility to the office of Governor Tom Corbett. A legal response to the suit must be filed by September 16.
Image from Philly.com by Tom Gralish