Court clerk's issuing of same-sex marriage licenses risky, lawyers claim
HARRISBURG — A Pennsylvania county court clerk's decision to issue marriage licenses to same-sex couples is a separation-of-powers violation that “risks causing serious and limitless harm” in Pennsylvania and beyond, according to a legal filing on Monday by lawyers for the state Health Department and Gov. Tom Corbett.
The filing in Commonwealth Court fleshed out the Health Department's legal claim against D. Bruce Hanes, the Montgomery County orphan's court clerk who has issued 116 marriage licenses to same-sex couples during the past three weeks.
“There is no limit to the administrative and legal chaos that is likely to flow from the clerk's unlawful practice,” the administration's lawyers wrote.
The administration said Hanes has a duty to follow state law that defines marriage as between a man and a woman, and argued that county officials who flout the law “may be guilty of a misdemeanor for each act of neglect or refusal.”
The administration's lawyers argued that if a law directs government officials to do something, they can't disregard that direction simply because they believe it to be unconstitutional. A 1996 state law defined marriage as involving “one man and one woman.”
Hanes began issuing marriage licenses after Attorney General Kathleen Kane, a fellow Democrat, announced she would not defend the state's ban on same-sex marriage in a federal lawsuit, saying law was not constitutional.
A spokesman for Montgomery County said its lawyers were reviewing the filing and had no immediate comment.
A Regent Square couple, John Kandray and Bill Gray, obtained a license in Montgomery County and were married on Aug. 5. Braddock Mayor John Fetterman conducted the ceremony in his home.
Hanes has cited as justification for his decision this summer's Supreme Court ruling that the federal government can't deny benefits to married same-sex couples who live in states that allow same-sex marriage.
He said Monday he had not read the administration's brief.
“I don't think it's a good idea for me to comment on this at this point,” Hanes said.
The Corbett administration wants a judge to order Hanes to immediately cease issuing licenses to same-sex couples.
The latest filing argued the clerk's actions have interfered with the uniform administration of law. It warned that one possible consequence of Hanes' actions may be that same-sex couples may apply for benefits reserved for married couples.
“Ours is a government of laws, not one of public officials exercising their will as they believe the law should be or will be,” the administration argued, adding that only courts can declare a law unconstitutional and suspend it.
Show commenting policy
TribLive commenting policy
You are solely responsible for your comments and by using TribLive.com you agree to our Terms of Service.
We moderate comments. Our goal is to provide substantive commentary for a general readership. By screening submissions, we provide a space where readers can share intelligent and informed commentary that enhances the quality of our news and information.
While most comments will be posted if they are on-topic and not abusive, moderating decisions are subjective. We will make them as carefully and consistently as we can. Because of the volume of reader comments, we cannot review individual moderation decisions with readers.
We value thoughtful comments representing a range of views that make their point quickly and politely. We make an effort to protect discussions from repeated comments either by the same reader or different readers.
We follow the same standards for taste as the daily newspaper. A few things we won't tolerate: personal attacks, obscenity, vulgarity, profanity (including expletives and letters followed by dashes), commercial promotion, impersonations, incoherence, proselytizing and SHOUTING. Don't include URLs to Web sites.
We do not edit comments. They are either approved or deleted. We reserve the right to edit a comment that is quoted or excerpted in an article. In this case, we may fix spelling and punctuation.
We welcome strong opinions and criticism of our work, but we don't want comments to become bogged down with discussions of our policies and we will moderate accordingly.
We appreciate it when readers and people quoted in articles or blog posts point out errors of fact or emphasis and will investigate all assertions. But these suggestions should be sent via e-mail. To avoid distracting other readers, we won't publish comments that suggest a correction. Instead, corrections will be made in a blog post or in an article.