About three-dozen same-sex couples received marriage licenses in Montgomery County since a county official’s groundbreaking decision last week — but the state this week sought to put a stop to that practice.
The Pennsylvania Department of Health on Tuesday filed suit, asking Commonwealth Court to issue an immediate injunction to stop MontCo Register of Wills D. Bruce Hanes from issuing any more marriage licenses to same-sex couples.
Hanes announced last week that he was willing to issue marriage licenses to same-sex couples, despite the state’s ban on same-sex marriage. As of presstime, 36 couples had taken Hanes up on that offer.
Tuesday’s suit argued that Hanes is “repeatedly and continuously acting in clear derogation” and “direct defiance” of the state’s marriage law.
“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 suit stated.
Furthermore, the DOH maintained that public officials have a “mandatory duty” to follow state law, which defines marriage as between one man and one woman. It requested that the court issue a writ of mandamus, a court order, that would order Hanes to cease and desist issuing marriage licenses to same-sex couples.
Hanes has 30 days to respond to the suit.
The DOH is spearheading the suit, as it regulates marriage licenses.
Hanes’ move came shortly after Pennsylvania Attorney General Kathleen Kane announced she would not defend against a challenge to the constitutionality of the state’s marriage-equality ban by the American Civil Liberties Union.
Kane’s office did not respond to a request for comment on Hanes’ decision.
While Montgomery County’s move was historic, the licenses themselves do not hold any legal weight.
“Technically, it’s just a piece of paper. There’s no legal significance,” said Mazzoni Center legal director David Rosenblum.
Rosenblum noted that the licenses would likely not hold up in court, not necessarily because of the state’s current position on same-sex marriage, but rather because marriage has historically been a state, not a county, issue.
“I know some people have it in their heads that when this is challenged, they can appeal and then go forward with that, but the sad reality is that ultimately a court will say that the county didn’t have a right to do this — not on substance but on process,” he said. “Hurray for the register of wills who decided to do this; he’s definitely on the right side of history and we agree it’s unconstitutional. But I think the process will instead play out through the court system with the challenge by the ACLU. I think that’s the way [the state’s ban on same-sex marriage] will be found unconstitutional.”
Rosenblum said Mazzoni has been advising inquiring clients of the neighboring states that offer full marriage equality, as well as the legal documents, such as wills and powers of attorney, that can be obtained to safeguard couples’ and families’ rights. But the Montgomery County licenses offer an important message, he added.
“We’ve been telling people that if what they want is to make a statement, that’s fine. You can pay the $45 and do just that,” Rosenblum said. “It’s like if you have just a religious service; it makes you feel good — and I don’t say that in a dismissive way — it gives you a certain power. But it doesn’t give you any rights.”
Last Friday, about 10 protesters from the Pro-Life Coalition of Pennsylvania converged on Hanes’ office to demonstrate against his decision, holding a “pray in” in the lobby.
Hanes said the environment at his office has been “hectic” in the past week.
Philadelphia residents Marion Leary and Lara Kelly received their license last Friday — and just barely missed the protesters.
“We were on the way up in the elevator when they were on their way down. So we missed them by about a minute,” Leary said. “Once we got there, it was so pleasant and everybody was so nice. And then Bruce Hanes came out to talk to us, and he was so genuinely nice and supportive. It’s better that all the press and protesters had left; it was just pleasant and normal.”
Leary and Kelly have been together for 13 years and will celebrate the 10th anniversary of their commitment ceremony in October.
They had been thinking about celebrating the anniversary with a legal marriage in Delaware, but are now committed to waiting until there’s full equality in Pennsylvania.
“When Montgomery County did this, we decided to go up and get a license more out of support and solidarity for Bruce Hanes and Montgomery County for taking a stand for marriage equality in this state,” Leary said.
Norristown Council Vice President Bill Caldwell and his partner, Ken Olin, had the same intention.
The Norristown residents have been together for 28 years and marked their union with a religious ceremony 22 years ago.
Caldwell, the second deputy treasurer for Norristown, whose office is in the same building as Hanes’, and Olin, an office manager, said they already considered themselves a married couple, but wanted to take the opportunity to support their elected officials’ stance on this issue.
“We had been in New York a week before and a couple of Ken’s siblings were asking why we hadn’t come up there to get married, and we said we wanted to wait until it was legal in Pennsylvania. And then this came up just two floors below my office,” Caldwell said. “I called Ken and said, ‘This may not be legal but Bruce Hanes and [County Commissioners] Josh Shapiro and Leslie Richards made a huge political statement on our behalf. We need to support them.’ Regardless of whether this license is legal today, tomorrow or not for 10 years, we wanted to support them because they took a really big risk for us.” Shapiro was on hand when the couple applied for the license, as was the county treasurer. Caldwell said the couple plans to hold a ceremony to sanction the license in the near future.
No other county officials have yet followed Hanes’ lead.
Philadelphia Register of Wills Ronald Donatucci said in a statement that he believes such a move is outside his power.
“Until the courts in the state of Pennsylvania determine the validity of same-sex marriages and the Defense of Marriage Act, it is outside the authority of my office to issue marriage licenses to same-sex couples,” Donatucci said.
Hanes, however, said he would be violating the constitution by denying same-sex couples the right to marry.
“I swore in an oath to uphold the constitution of the United States and the constitution of the commonwealth. That’s my point of view,” he said. “That’s my conclusion and the conclusion of the solicitor of the register’s office and the solicitor of the county. I cannot administer an unconstitutional statute.”
While the legalities of the county’s move are now to be sorted out in court, Caldwell said he believes the action brings the issue, and the people personally affected by it, to the forefront of the commonwealth’s consciousness.
“The Commonwealth of Pennsylvania has to either stand up and recognize the fact that equal marriage is equal marriage, or take a stand and fight it out,” he said. “I’ve been on council for eight years and Ken and I have been very public around town; we go to things as a couple, we act married already. We wanted to make sure that the local community can put a face to the marriage-equality debate. That strategy has worked well for the gay community in general. We need to be out and visible and as many people as possible need to see gay couples and see that we do not have the same rights as they do.”