A Pennsylvania judge’s order stopping a suburban Philadelphia court clerk from issuing marriage licenses to same-sex couples leaves their legal status unclear, with an appeal possible and other legal actions pending or in the works.
Montgomery County Register of Wills D. Bruce Hanes said on Sept. 12 he was disappointed but would comply with the decision by Commonwealth Court Judge Dan Pellegrini. Hanes said he thinks the 174 licenses he handed out are legally valid.
“I believe they are … but I can’t make that decision,” he said.
Pellegrini said Hanes did not have the power to decide on his own whether Pennsylvania’s same-sex marriage ban violates the state constitution.
“Unless and until either the General Assembly repeals or suspends the Marriage Law provisions or a court of competent jurisdiction orders that the law is not to be obeyed or enforced, the Marriage Law in its entirety is to be obeyed and enforced by all commonwealth public officials,” Pellegrini wrote.
The state Health Department under Republican Gov. Tom Corbett took Hanes to court after he began issuing licenses to same-sex couples in July, despite a 1996 state law that defines marriage as between a man and a woman.
In his opinion, Pellegrini said, “There are no obstacles preventing those adversely affected by the provisions of the Marriage Law from asserting their own rights in an appropriate forum.”
Nicola and Tamara Cucinotta of Paoli filed a lawsuit in Commonwealth Court earlier this month against the governor. Their suit argues that their marriage is permissible under the state constitution and asks the state to recognize their union.
The women obtained one of the first same-sex licenses from Hanes this summer, and later married.
“It doesn’t say anything about Hanes, or about Montgomery County, or whether they received a license or (not),” lawyer Cletus Lyman said. “It says they are suing for the right to be married.”
Hanes, a Democrat and an elected official whose duties include marriage licenses, said the law conflicts with his constitutional obligations. His actions followed the U.S. Supreme Court’s decision this summer to throw out part of the federal Defense of Marriage Act, and a statement by Pennsylvania Attorney General Kathleen Kane that the same-sex marriage ban was unconstitutional.
Robert Heim, a lawyer for some of the same-sex couples who obtained licenses from Hanes, noted that Pellegrini said the legality of the licenses was not an issue before him.
“The 32 couples that I represent are going to have to decide whether they also want to litigate it in the Commonwealth Court, since Judge Pellegrini virtually invited it,” Heim said.
James Schultz, Corbett’s general counsel, issued a statement saying the key issue was whether local officials can decide which laws to uphold or reject, based on their personal legal opinion.
“We respect the interests and dignity of all the parties involved in this case, but we are a government of laws and it is important that all office holders across the state enforce those laws uniformly,” Schultz said.
A separate challenge to Pennsylvania’s same-sex marriage ban is pending in federal court, and ACLU of Pennsylvania attorney Vic Walczak said Pellegrini’s decision will have no impact on that proceeding.
“It is full speed ahead for the ACLU lawsuit,” Walczak said.
Kane is not defending the federal challenge to the same-sex marriage ban, having turned over that case and the Hanes matter to Corbett’s lawyers.
Pennsylvania is the only northeastern state that does not grant legal status to marriage or civil unions between individuals of the same sex.