Montgomery County clerk agrees to stop issuing same-sex marriage licenses
By Brad Bumsted and Tony LaRussa
Published: Thursday, Sept. 12, 2013, 12:03 p.m.
HARRISBURG — A court ruling on Thursday preventing local officials from issuing same-sex marriage licenses strengthened the gay community's resolve to push for “marriage equality,” a Pittsburgh activist said.
“Obviously, the judge's ruling is disappointing, but now more than ever the community is fired up. ... The fight is certainly not over,” said Gary Van Horn, president of Delta Foundation of Pittsburgh, an advocacy group for gays, lesbians, bisexuals and transgender people.
Until the Legislature or courts overturn Pennsylvania's ban on same-sex marriages, local officials must comply with its provisions, Commonwealth Judge Dan Pellegrini, a former Pittsburgh solicitor, ruled in a Montgomery County case. The law defines marriage as a union between “one man and one woman.”
Pellegrini ordered Register of Wills D. Bruce Hanes to stop issuing marriage licenses to gay and lesbian couples, saying Hanes clearly violated his legal authority.
“The marriage law in its entirety is to be obeyed and enforced by all Commonwealth public officials,” the judge wrote.
Hanes said he would comply with the order but might appeal to state Supreme Court. He'll review the decision with the county solicitor and his lawyer.
“I am more convinced today that I am on the right side of history,” said Hanes, who has issued 174 such licenses. “Regardless of how my particular case is resolved, I believe the case for marriage equality continues to move forward, and I can only hope that my decision helped that effort.”
General Counsel James Schultz, who sought the order on behalf of the state Health Department, said the key question was whether any local official can decide which laws to uphold or reject based on personal legal opinion.
“We appreciate the court's consideration of the legal and social complexities of this issue, along with the future ramifications — not just in this individual case, but in all types of decisions made by public officials,” Schultz said.
“I commend the Commonwealth Court for an outstanding decision,” said Rep. Matthew Baker, a conservative Republican from Tioga County who noted that the 1996 law “passed with strong public and bipartisan support.”
Braddock Mayor John Fetterman, who has presided over 11 same-sex marriage ceremonies, including one on Saturday, said he was “discouraged and ashamed” that state officials continue to practice what he considers “legalized discrimination.”
“Everyone knows that marriage equality is coming to Pennsylvania sooner or later,” he said. “So why not embrace it and move forward?”
Allegheny County Executive Rich Fitzgerald said that permitting same-sex couples to marry is “the right thing to do” from a civil rights standpoint and that the issue could have a broader effect.
“It's not a good idea for the state to send out a message that we're open for business and then be the only state in the East that puts up roadblocks for people to come here,” he said.
The American Civil Liberties Union filed a federal lawsuit in June asserting that the law is unconstitutional. Attorney General Kathleen Kane said at the time that she would not defend the state in the lawsuit because she believes the law is “wholly unconstitutional.” She gave the case to Schultz's office.
Hanes began issuing licenses to same-sex couples after Kane's announcement.
Joe Peters, a spokesman for Kane, said her decision was never about refusing to enforce the law. She has an obligation as an attorney to withdraw from representing a client if there's a fundamental disagreement such as her belief the marriage law was unconstitutional, Peters said.
Pellegrini ruled that Hanes is a county official, not a court official as he contended, and rejected his lawyers' contention that Commonwealth Court had no jurisdiction in the case. The Health Department and general counsel did have standing to bring the suit, Pellegrini said.
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