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Poll: Officials must enforce law on gay marriage

| Thursday, Aug. 29, 2013, 7:15 a.m.

The law trumps morality on gay marriage, according to a new statewide poll.

Three in four people surveyed in a Franklin & Marshall College poll released on Thursday said it's unacceptable for state or local officials to ignore a law with which they disagree.

Pollsters asked the question after noting that Montgomery County Register of Wills D. Bruce Hanes, unnamed in the poll, recently began issuing marriage licenses to same-sex couples despite a state law defining marriage as exclusively between a man and a woman.

The lopsided result comes just months after another Franklin & Marshall poll found 54 percent of people support same-sex marriage.

“But they don't believe it should be accomplished by breaking the law,” said G. Terry Madonna, the poll's director at the Lancaster college. “The ways to do it would be to have the Legislature change it or a court overthrow it.”

Hanes' office issued more than 150 marriage licenses to same-sex couples in the last six weeks. Gov. Tom Corbett sued to stop Hanes, and Commonwealth Court is scheduled to hear arguments at 10 a.m. Sept. 4 in Harrisburg.

But Hanes said he cannot simultaneously follow the marriage law, which bars gay unions, and the state constitution, which says officials can't deny people their civil rights and can't discriminate based on sex.

“I really don't have the authority to deny same-gender marriage licenses,” Hanes said.

His oath of office includes a pledge to uphold the constitution, he said. “I cannot be compelled to enforce an unconstitutional act. ... The question is not whether I agree with the law.”

One in three people who identify as liberals and one in four Democrats support breaking a law they believe is unjust, compared with just 6 percent of conservatives and 10 percent of Republicans, Madonna said.

But allowing elected officials to decide which laws to enforce constitutes “the inmates running the asylum,” said the Rev. William Devlin, who was arrested in July outside the elevators to Attorney General Kathleen Kane's office in Harrisburg to protest Kane's decision not to defend the state's marriage law.

The Montgomery County native leads a congregation in Bronx, N.Y., at the Infinity Bible Church, an independent church. “I believe the efforts of those of us who believe in natural marriages are winning the day.”

Denying marriages to same-sex couples amounts to “legalized discrimination that blatantly violates the equal protection clause (of the U.S. Constitution),” said Braddock Mayor John Fetterman, who has officiated at eight same-sex marriages since Aug. 6.

“It's as obvious as (saying) women should be able to vote. Who's still evolving on the idea that women should be able to vote?” Fetterman said.

The law is less flexible than personal notions of right and wrong, University of Pittsburgh law professor John Burkoff said.

“Every individual public servant can't decide for himself or herself what the law is. It'd be chaos,” Burkoff said.

What makes bans on same-sex marriage different from most other laws, Burkoff said, are rapid changes in public opinion in favor of the unions, the progress of legislation striking down the bans and the growing body of court decisions striking them down — all of which point to the bans' eventual disappearance.

In nine years, support for same-sex unions in Pennsylvania jumped from about 40 percent to more than 50 percent in Franklin & Marshall polls.

“The change that has taken place ... is a bigger change than any cultural issue I've ever polled on,” Madonna said. “The question is not if (the ban) will fall but when.”

That further muddies the issue for politicians, Burkoff said. He noted the dilemma confronting antebellum judges in the North who were charged with enforcing the Fugitive Slave Act. It required runaway slaves in free states to be returned to bondage in the South.

“Some of those judges followed the law and returned them, even though it was abhorrent to them, and some of them said, ‘I can't do it,' ” Burkoff said.

The poll of 594 registered voters took place Aug. 21-26 and has a margin of error of plus or minus 4 percentage points.

Mike Wereschagin and Brad Bumsted are staff writers for Trib Total Media. Wereschagin can be reached at 412-320-7900 or mwereschagin@tribweb.com. Bumsted can be reached at 717-787-1405 or bbumsted@tribweb.com.

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