Tag Archives: montgomery county

Status of marriage licenses to gay couples in Pennsylvania: Murky

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.

Judge: expect a quick ruling on gay marriages in Pennsylvania

A judge in Pennsylvania heard arguments on Sept. 4 on whether a county official in the state must stop giving marriage licenses to same-sex couples.

Commonwealth Court Judge Dan Pellegrini said he would rule quickly on the matter, which began when county register of wills Bruce Hanes began issuing licenses in Montgomery County in suburban Philadelphia.

The AP reported that arguments lasted about an hour, with lawyers for Gov. Tom Corbett’s administration saying state law does not allow same-sex couples to marry.

State law enacted in 1996 says marriage is between a man and a woman, but the American Civil Liberties Union has filed a legal challenge to the statute.

As of Sept. 3, Hanes had issued 164 licenses to same-sex couples. He said he was spurred on by the U.S. Supreme Court rulings on marriage equality, which were issued in late June.

Meanwhile, in New Mexico, a clerk in a seventh county was expected to begin issuing marriage licenses to same-sex couples.

Republicans in that state have sued to stop the marriages while the state supreme court decides the issue.

Court to determine status of marriage licenses issued to same-sex couples in Pennsylvania

For two months, an elected court clerk in the Philadelphia suburbs has been giving something to same-sex couples they have not been able to get anywhere else: a Pennsylvania marriage license.

Now a court has to decide whether the clerk has singlehandedly added Pennsylvania to the growing list of states that formally sanction same-sex marriages or whether he has been acting illegally and must be stopped.

Wednesday’s hearing in Harrisburg pits Gov. Tom Corbett’s Health Department against D. Bruce Hanes, Montgomery County’s register of wills, who issues marriage licenses as part of his duties as clerk of the county orphan’s court.

Hanes began giving marriage licenses to gay couples in late July, shortly after the U.S. Supreme Court threw out portions of the federal Defense of Marriage Act. Pennsylvania is the only Northeastern state that has neither gay marriage nor civil unions, but the legality of the more than 150 such licenses Hanes has handed out remains an open question.

David Cohen, an attorney representing 32 couples who received licenses from Hanes, says it’s too early to speculate on the legal status of those marriages.

“That’s certainly unknown because it would depend on the scope of the decision,” Cohen said. But he added that there’s plenty of legal precedent for courts to look at the core issue of how a local official decides whether an action is constitutional.

The case is one of several nationwide that have put county clerks in a legal spotlight of late and harkens back to initial efforts in California nearly a decade ago to push for same-sex marriage.

San Francisco Mayor Gavin Newsom directed clerks to issue same-sex marriage licenses in 2004, citing the state constitution’s equal protection clause. His order came months after Massachusetts’ Supreme Court legalized gay marriage in that state.

However, California’s high court stopped the practice a month later after about 4,000 same-sex licenses had been given out. The court reversed itself in 2008, legalizing gay marriage, but voters the following year approved Proposition 8, which banned the unions.

In the latest twist, the U.S. Supreme Court this year let stand a lower-court ruling that struck down Proposition 8 as unconstitutional. And the California Supreme Court followed suit in August, refusing to block gay marriages.

In New Mexico in the past week or so, hundreds of same-sex marriage licenses were issued after a county clerk along the U.S.-Mexico border concluded that state law didn’t prevent him from issuing licenses. So far, clerks in six counties have begun issuing licenses, and a seventh has been ordered to do the same.

In the Pennsylvania case, “there’s a great deal at stake,” said Michael Geer, president of the Pennsylvania Family Institute, which advocates for conservative social policies. “The biggest issue is whether or not our public officials, whether local or statewide, will obey the law and follow the oath that they took when sworn into office.”

Ted Martin, executive director of Equality Pennsylvania, which advocates on behalf of lesbian, gay, bisexual and transgender people, said Hanes’ decision and the resulting case have brought attention to and encouraged discussion about ways such people are treated differently.

If Hanes wins in court, Martin said, “the ramifications would be pretty remarkable. I think Pennsylvania legislators would have to look long and hard about what’s out there. It would be pretty interesting, at least.”

Commonwealth Court has told the lawyers to address whether the judges have jurisdiction given Hanes’ status as a judicial officer; whether handing out marriage licenses amounts to a judicial act; and whether the constitutionality of the state marriage law is a defense in the case.

Attorney General Kathleen Kane, a Democrat, delegated defense of the marriage law in a federal lawsuit to Corbett, a Republican. Kane’s position has been that the law, which limits marriage to between a man and a woman, is unconstitutional.

The court also directed the lawyers to address whether the Health Department has standing to file the case and, if not, the implications of Kane’s position.

Corbett’s lawyers have warned that Hanes’ actions, if allowed to stand, will produce chaos and have said his actions may amount to a crime.

“This case is about one thing: whether a local official may willfully disregard a statute on the basis of his personal legal opinion that the statute is unconstitutional,” Corbett’s lawyers wrote in a filing last week.

A spokesman for Corbett’s Office of General Counsel, Nils Frederiksen, said local officials like Hanes don’t have the authority to disregard state law based on their personal legal opinion.

“Decisions about the constitutionality of a state law are in the hands of a court,” Frederiksen said.

Hanes’ legal team has said the Health Department needs to be more specific about whatever harm it thinks could occur and has argued there is a conflict between the state’s marriage law and Hanes’ oath to uphold the national and state constitutions.

The state’s marriage law, they wrote this month, “affects a fundamental human right, and precludes an entire class of individuals from enjoyment of that right.”

Bryn Mawr residents Joanne Glusman and Joan Bennett are one of the couples who obtained a license from Hanes. The native Pennsylvanians have been together for 18 years.

“We went into it not really knowing what it would mean for us legally,” Glusman said, but the hope was they’d get the same rights their married siblings have.

Cohen wouldn’t speculate on whether his clients will take further legal action if the ruling goes against Hanes. But Glusman said waiting on the courts is stressful.

“It causes a lot of unease,” Glusman said, adding that the couple is “disheartened and actually fearful” over what may happen if the Corbett administration prevails in the case.

“We were both born and bred here. We don’t want to move,” Glusman said.

Pennsylvania sues to stop county from issuing marriage licenses to gays

State officials asked a court to stop a rogue county from issuing marriage licenses to gay couples on July 30, nearly a week after a clerk began granting them in violation of Pennsylvania law.

The petition filed by the Pennsylvania Health Department alleges that D. Bruce Hanes, the register of wills in Montgomery County, “repeatedly and continuously” flouted the law. As of July 30, Hanes’ office had granted 34 licenses and registered six same-sex marriages.

“There is no limit to the administrative and legal chaos that is likely to flow from the clerk’s unlawful practice of issuing marriage licenses to those who are not permitted under Pennsylvania law to marry,” the lawsuit said.

Pennsylvania is the only northeastern state without same-sex marriages or civil unions. Hanes began issuing licenses to same-sex couples shortly after the U.S. Supreme Court struck down part of the federal Defense of Marriage of Act.

At the time, Hanes said he wanted to “come down on the right side of history and the law.” He declined to comment on the pending litigation, but county solicitor Ray McGarry said the state Health Department’s lawsuit “has serious flaws.” The county will continue to grant licenses to gay couples, McGarry said.

The Health Department, which oversees marriage licenses for the state, contends in its complaint that Hanes’ actions interfere with the agency’s administrative responsibilities and would likely lead to illegal claims for benefits. A department spokeswoman declined to comment further.

The developments come the same day that Republican Gov. Tom Corbett’s office indicated that it would defend the state’s marriage law in a separate legal challenge filed by the American Civil Liberties Union.

Attorney General Kathleen Kane, a Democrat who supports same-sex marriage, had said earlier this month that she wouldn’t defend the state in that suit because she believes the law to be unconstitutional.

On July 30, Corbett’s general counsel wrote in a letter to Kane’s first deputy that the governor’s office would defend the law. But General Counsel James Schultz said that Kane’s refusal “establishes a very troubling precedent.”

“This will create chaos and uncertainty – not unlike what we are seeing in the unlawful actions” of Hanes, Schultz wrote.

The legal status of the gay marriages registered in Montgomery County is unclear. In other states with same-sex marriage bans, licenses issued by defiant local officials have been voided by courts.

A 1996 state law defines marriage as a civil contract in which a man and a woman take each other as husband and wife. It says same-sex marriages – even if entered legally elsewhere – are void in Pennsylvania.

The ACLU has sued to have the law overturned. The state was granted an extension to respond to that lawsuit and officials must now respond by Sept. 16.

Recent polls show a majority of state residents favor gay marriage in Pennsylvania, even though bills to legalize it have gone nowhere in recent years in the Legislature.

Maryland school district bans fliers after anti-gay handouts

Maryland’s Montgomery County Board of Education has voted to bar nonprofit groups from distributing fliers to middle and high school students after protests over leaflets sent home with students.

The Washington Post reported the 6-1 vote this week will ban the distribution of leaflets from any outside group except government agencies or PTAs.

The distribution of fliers drew protests in February after many students and educators considered some leaflets sent home to be anti-gay. The fliers were sent by the group Parents and Friends of Ex-Gays and Gays, saying homosexuality is not innate and can be changed.

Schools Superintendent Joshua Starr called the message intolerant. He says it was important to rethink the flier policy.

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