Attorneys for the state and for the Montgomery County official who has been issuing marriage licenses to same-sex couples argued their case before a judge in Harrisburg this week.
Oral arguments were held Sept. 4 before Commonwealth Court President Judge Dan Pellegrini on the state Department of Health’s suit against MontCo Register of Wills D. Bruce Hanes, who has issued more than 160 marriage licenses to same-sex couples since July.
The state is seeking a writ of mandamus to compel Hanes to halt his action.
Pellegrini did not set a deadline for his decision but indicated it will be a quick one.
Arguments Wednesday primarily centered on whether the state health department has jurisdction to order Hanes to stop issuing licenses. The state contends that it does, but attorneys for Hanes argued that, as a judicial officer, their client must be guided by orders from the court, not state agencies.
Pelligrini will not rule on the constitutionality of the state’s ban on same-sex marriage but will likely weigh in on whether Hanes’ attorneys can use arguments about the law being unconstitutional to defend against the suit should it proceed.
The judge did not give a clear indication of his leanings on the issues, but did suggest multiple times that a more straightforward approach would have been for Hanes to file a challenge to the law.
Arguing for the state was executive deputy general counsel Gregory Dunlap and heath department chief counsel Alison Taylor, while MontCo Solicitor Raymond McGarry is handling the defendant’s case, along with Nicole Forzato and Natasha Taylor-Smith.
Prior to the hearing, in a court filing last week, state attorneys compared the marriage of same-sex couples to unions among children, prompting backlash against Republican Gov. Tom Corbett.
The argument came in the state’s Aug. 28 filing opposing the petition of a group of 32 same-sex couples who received marriage licenses in Montgomery County to become intervenors in the case.
Attorneys argued in the filing that “had the clerk issued licenses to 12-year-olds in violation of state law, would anyone seriously contend that each 12-year-old has a legally enforceable ‘interest’ in his ‘license’ and is entitled to a hearing on the validity of his ‘license,’ else his due-process rights be violated? Obviously not.”
The brief also called the licenses “meaningless.”
While Corbett did not personally author the filing, he was the target of a sharp outcry by LGBT supporters.
Last Thursday, Corbett released a statement calling the analogy “inappropriate.”
Nils Frederiksen, Corbett’s press secretary, told PGN that the governor had not read the filing before it was submitted.
“The governor was not aware that that analogy was going to be or was included in the brief,” Frederiksen said. “And he has made it clear to the attorneys handling this matter that this will not be repeated.”
However, in his statement, the Republican governor went on to reaffirm his backing of the suit against Hanes.
“The case revolves around a very basic question: Does a public official have the authority to disregard state law based on his own personal legal opinion about the constitutionality of a statute?” Corbett posed.
“Although the governor’s position on marriage for same-sex couples is increasingly out-of-touch with the majority of Pennsylvanians, we understand that he must defend the laws of the state,” noted Equality Pennsylvania executive director Ted Martin. “However, if there is one thing we can all agree on, it’s that all people deserve to be treated with respect. The statements made by the attorneys do not simply defend the laws of the state, they deny loving, committed same-sex couples the dignity they deserve.”
State Treasurer Rob McCord, who is seeking the Democratic nomination for governor next year, decried the filing, circulating a petition calling on supporters to “tell Tom Corbett that he’s the one acting like a 12-year-old.”
Fellow Democratic gubernatorial candidate Allyson Schwartz did not respond to a request for comment by PGN by presstime, but her campaign also circulated a petition last week calling the comparison reflective of the administration’s “intolerant, ideological agenda.”
Hanes’ attorneys declined comment on last week’s filing.
But in court papers, attorneys called the state contention that the couples do not have a legally enforceable interest “absurd.”