A state court hearing in Harrisburg will address the actions of a suburban Philadelphia court clerk who has been handing out marriage licenses to same-sex couples since late July, despite a Pennsylvania law defining marriage as between a man and a woman.
Oral arguments before Commonwealth Court on Wednesday involve a lawsuit filed by Gov. Tom Corbett’s Health Department against the courthouse official, Montgomery County Register of Wills D. Bruce Hanes. By the close of business Tuesday, Hanes had issued 164 licenses, and 98 of them have been completed, returned and filed.
The Health Department wants the court to stop Hanes, an elected official who handles the licenses in his role as orphan’s court clerk.
In bringing the suit, the Health Department said its role includes making sure marriage registrations are “uniformly and thoroughly enforced throughout the state,” and that Hanes’ actions have interfered with the proper performance of the agency’s powers, duties and responsibilities.
Pennsylvania is the only northeastern state that does not sanction same-sex marriages or have a system of civil unions. Hanes began issuing state marriage licenses after the U.S. Supreme Court threw out portions of the federal Defense of Marriage Act this summer.
A similar scenario is playing out in New Mexico, where a county clerk concluded the law did not prevent him from issuing same-sex licenses, and about a half-dozen others in that state have followed suit.
If the court sides with the Corbett administration, it’s unclear what that will mean to those who have already received a license.
The court has narrowed the topics of the hearing, asking lawyers to address whether they have jurisdiction, given Hanes’ status as a judicial officer; if handing out the licenses is considered a judicial act; and whether Hanes can argue in his own defense that the marriage law is unconstitutional.
Also at issue is what role should be played by Attorney General Kathleen Kane, who said she did not think the law was constitutional. Corbett is a Republican, while Kane and Hanes are both Democrats.
In an exchange of letters over the weekend, lawyers under Corbett asked for and received written approval from Kane to pursue the case, as she had already done in a separate federal challenge to the same-sex marriage law.
Corbett’s lawyers have said Hanes’ actions could create chaos. Hanes has argued there is a conflict between the same-sex marriage ban and his constitutional duties.