A Pennsylvania judge ordered a suburban Philadelphia court clerk to halt issuing marriage licenses to same-sex couples Thursday, saying the the county official overstepped his authority when he decided to grant the licenses to gay and lesbian couples in July.
In the 35-page opinion, Commonwealth Court Judge Dan Pellegrini said D. Bruce Hanes, the Montgomery County register of wills, must adhere to the state’s marriage law, which restricts marriage to one man and one woman and that he alone cannot decide the law is unconstitutional.
In his opinion, the judge said Hanes “admittedly failed to comply with his mandatory ministerial public duty under the marriage law by issuing marriage licenses to same-sex couples, by accepting the marriage certificates of same-sex couples, and by waiving the mandatory three-day waiting period, in violation of the express provisions of the Marriage Law.”
The narrow ruling avoids the question of the marriage law’s constitutionality, the fate of the marriage licenses issued to same-sex couples when they were available and focuses only on whether Hane has the authority to decide which laws to follow and which to reject.
Since July 23, Hanes has issued a total of 174 marriage licenses to same-sex couples, including four he issued on Wednesday, according to NBC 10 Philadelphia. It is not clear what will happen to those licenses following the court’s opinion.
Instead of issuing the licenses, Pellegrini said Hanes should have used the “proper forum” to challenge the constitutionality of the marriage law, the state’s General Assembly.
“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,” he said.
At the time, Hanes said he had “decided to come down on the right side of history and the law” and provide the licenses to same-sex couples.
On July 11, Pennsylvania Attorney Gen. Kathleen G. Kane announced her office would no longer defend the marriage law following the U.S. Supreme Court’s decision to strike down a portion of the federal Defense of Marriage Act (DOMA), saying, “I cannot ethically defend the constitutionality of Pennsylvania’s version of DOMA where I believe it to be wholly unconstitutional.”
The opinion comes as the result of a complaint filed by the Pennsylvania Health Department, which alleges Hanes violated the state marriage law and could even result in misdemeanor charges.
Following the decision, the state’s General Counsel James Schultz issued a statement saying the main question presented in the case is “whether any local official, anywhere in Pennsylvania, has the ability to decide which laws to uphold and which laws to reject based on their own personal legal opinion.”
“We respect the interests and dignity of all the parties involved in this case, but we are a government of laws and it is important that all office holders across the state enforce those laws uniformly,” he said.
Hanes could not be reached for comment on Thursday.
Update - 5:00 p.m. ET
Hours after the ruling, Hanes said he will comply and cease issuing marriage licenses to same-sex couples, but is already considering the possibility of appealing to the state supreme court, according to NBC 10.
“I am obviously disappointed by the Court’s decision today,” Hanes said in a statement. “Over the course of the next several days, I will be reviewing the decision with county solicitor Ray McGarry and my solicitor Michael Clarke in coming days to discuss with them next steps, including the possibility of appeal. In the meantime, I will fully comply with the Court’s order.”
Update - 5:20 p.m. ET
The National Organization for Marriage (NOM) applauded Pellegrini in a statement Thursday night, calling his opinion “common sense” and asking Pennsylvania Gov. Tom Corbett to swiftly invalidate the marriage licenses issued to same-sex couples.
“This is a victory for marriage,” said NOM President Brian Brown. “The people of Pennsylvania should be grateful to Governor Corbett for his leadership on this issue. As the chief executive of the state, he properly used his office to uphold the law and stop the potential spread of these rogue actions.
“Now we ask that he use the influence of his office to have the ‘marriage’ licenses that were issued declared invalid,” he said.
The organization, which opposes marriage for same-sex couples all over the country, was quick to attack Hanes shortly after he began issuing the licenses and went as far as calling for a ballot initiative that would create a constitutional amendment banning marriage equality. Brown reiterated that call.
“The legislature clearly defined marriage in 1996 for Pennsylvania,” he said. “Now Pennsylvanians should be given the right to vote and to enact a state constitutional amendment so that there will be no further confusion on this issue.”
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