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Court clerk's issuing of same-sex marriage licenses risky, lawyers claim

| Monday, Aug. 12, 2013, 8:54 p.m.

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.

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