Ruling in same-sex marriage case could take two weeks or more

D. Bruce Hanes, Montgomery County register of wills, has issued the marriage licenses.
D. Bruce Hanes, Montgomery County register of wills, has issued the marriage licenses.
Posted: August 08, 2013

A state court has agreed to an expedited review of Montgomery County's issuance of marriage licenses to same-sex couples, but it did not bar the county from issuing more licenses in the meantime.

Commonwealth Court ordered the state to submit an argument by Monday against the marriage licenses' issuance. The county will then have until Aug. 19 to file an opposing argument.

After that, the nine-member court will schedule arguments and issue a ruling "on an expedited basis," according to an order filed Tuesday morning.

The state asserts that Register of Wills D. Bruce Hanes is "repeatedly and continuously" violating the state's 1996 Marriage Law by issuing marriage licenses to same-sex couples and is asking the court to compel Hanes to stop. The judges did not grant the state's request for an order bringing an immediate halt to the licensing.

The county argues that Hanes cannot be required to uphold the Marriage Law because, Hanes says, it discriminates against a class of people.

The state Department of Health initially sued July 30, arguing that Hanes' actions would cause "administrative and legal chaos" by having the Marriage Law unevenly applied across the state. The county responded Friday, saying that only the state attorney general, the district attorney, or a private citizen would have standing to file such a suit.

The state amended its complaint Monday, saying the Health Department did have standing because Attorney General Kathleen Kane is refusing to defend the law against a challenge filed recently by the American Civil Liberties Union.

With a new complaint on the table, the county's filed response is effectively moot. But County Solicitor Ray McGarry said he still believed Commonwealth Court was not the appropriate venue for this case.

"We believe the [state] Supreme Court should be hearing it," McGarry said.

He said the county would take the two weeks to respond to the state's revised claims.

"The court has basically given us some time to breathe, to step back and analyze," McGarry said, "and we're going to take that opportunity."

The state's amended complaint also adds an allegation that Hanes could be subject to a misdemeanor charge for each same-sex marriage license he issues. (He had issued 82 as of Tuesday; 22 marriages have resulted.)

Several critics are calling for such charges to be filed, but the county District Attorney's Office said Friday in an e-mail that it would not intervene in the license controversy because the matter "now rests squarely with the courts, where we expect it will be resolved."

State attorneys also added a reference to the California Supreme Court, which nullified same-sex marriages performed by a mayor in violation of a state ban. That ruling would not be binding in Pennsylvania, but state attorneys said the principle applied.

Quoting from the 2004 case, Lockyer v. San Francisco, the lawyers wrote, "Official action is determined not by the opinion of an individual officeholder - but by the rule of law."


Contact Jessica Parks at jparks@philly.com or 610-313-8117, or follow on Twitter @ JS_Parks.

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