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Montgomery County goes on the offensive in same-sex marriage dispute

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Friday, Aug. 2, 2013, 12:06 p.m.
 

HARRISBURG — Lawyers for the Montgomery County official issuing marriage licenses to same-sex couples say the state law banning gay marriage is unconstitutional and the state's suit to stop the marriages is in the wrong court.

D. Bruce Hanes, the register of wills who issued the first marriage license to a gay couple last week, is a judicial officer and therefore under the authority of the Supreme Court, not Commonwealth Court, where the state filed a lawsuit, county attorneys say.

Moreover, the Montgomery County solicitor argues, the Department of Health doesn't have standing to sue. Only the attorney general, district attorney or a citizen with a specific interest could bring such a suit, said Raymond McGarry, the county solicitor.

As of Friday, Hanes had issued 49 licenses to same-sex couples, his office said.

Documents filed by McGarry claim the state has not demonstrated any injury from Hanes' action.

The county objects to a petition by the state on Thursday that requested expedited review by Commonwealth Court. The state wants Hanes to “cease and desist” immediately, according to the petition.

The “marriage law is clear and the material facts are not in dispute,” said Kelli Roberts, a spokeswoman for Gov. Tom Corbett.

The Health Department sued because it is responsible for providing the forms for marriage license applications to individual counties and is responsible for keeping vital statistics related to marriage licenses, Roberts said.

Granting licenses to same-sex couples became an issue when Attorney General Kathleen Kane on July 11 said she could not defend a lawsuit seeking to overturn the 1996 law defining marriage as between “one man and one woman” because she considers it unconstitutional.

Kane delegated the case to the Office of General Counsel under Corbett.

That lawsuit was filed by the American Civil Liberties Union.

The Pennsylvania Pastors Network on Friday applauded Corbett for suing Hanes.

“I am encouraged by Gov. Corbett's decision to use his authority to stop the intentional breaking of law by a local elected official,” said Sam Rohrer, the network's president. Rohrer opposed Corbett in the 2010 Republican primary.

Brad Bumsted is Trib Total Media's state Capitol reporter. Reach him at 717-787-1405 or bbumsted@tribweb.com.

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