Marriage equality was short-lived in Montgomery County, as a state judge last week halted the issuing of marriage licenses to same-sex couples in the state’s third-largest county. But the county confirmed this week that it will appeal the decision — and will press the court to issue an opinion on the constitutionality of the state’s ban on same-sex marriage.
Commonwealth Judge Dan Pellegrini last Thursday ordered MontCo Register of Wills D. Bruce Hanes to immediately halt the practice, which Hanes began in July. Hanes had contended that the ban is unconstitutional but, after a suit by the state Department of Health, Pellegrini found last week that Hanes did not have the authority to make such a decision.
Hanes told PGN on Tuesday that the county will appeal the ruling.
Once the county files a notice of appeal, which county solicitor Ray McGarry said would likely happen this week, the case will be transferred to the state Supreme Court, which McGarry said will involve some administrative processes before a judge releases a briefing schedule.
In his decision, Pellegrini did not rule on the constitutionality of the law, but said that a finding about the constitutionality of a law can only come from a court, not an individual.
“Until a court has decided that an act is unconstitutional, Hanes must enforce the law as written,” the judge wrote. “In this case, a clerk of courts has not been given the discretion to decide that a law, whether the statute he or she is charged to enforce is a good idea or bad one, is constitutional or not. Only courts have the power to make that decision.”
Once the county files the notice of appeal, it will begin identifying the specific issues it is appealing, McGarry said.
But chief among those topics will be the county’s assertion that Hanes should be permitted to use the seeming unconstitutionality of the state’s ban on same-sex marriage as a defense against the suit, forcing the court to render an opinion on the law.
“I think optimally, as we did with the Commonwealth Court, we will ask that the court permit the unconstitutionality of the statute to be raised as a defense and, therefore, get to the merits of the constitutionality of Pennsylvania’s DOMA statute,” McGarry said.
The county could also appeal Pellegrini’s ruling that the Health Department has standing to bring the suit. The defendants had also previously argued that the case should be argued in the Supreme Court, an issue that will now be nullified.
Since July 23, Hanes issued 174 licenses to same-sex couples, 118 of which were filed and returned. Pellegrini’s ruling did not address the legality of those licenses.
Thirty-two of those couples sought to become parties in the case as intervenors, a request that Pellegrini also did not rule on.
McGarry said he is unsure what role those couples could play in the appeals process.
Sandy Bilus, of Dechert LLP, is representing those couples and said they are considering how to proceed. He expects to announce a plan in the next few weeks.
“The judge held that the clerk had to stop issuing licenses going forward, so we’re taking the position that this is not a declaration that our clients’ licenses are invalid,” Bilus said. “And our clients are now considering their legal options.”
Bilus said that, if the couples choose to pursue a ruling on the validity of their licenses, they could file individually or as a group, as they did with the petition to intervene.
Penn Valley residents Leigh Braden and Sophie Forge were married July 29 in Plymouth Meeting after obtaining a license from Hanes’ office earlier that day.
They had a symbolic ceremony and wedding celebration the following week with friends and family.
The couple, together for seven years, were joined in a domestic partnership in France in 2008, but Braden, executive director of LGBT youth agency Foyer of Philadelphia, said she and Forge, who are among the couples seeking to be intervenors, were eager to be involved in the local movement.
“In our minds, we had already taken that step in our relationship and made the decision to spend our lives together. But the decision to get married in Montgomery County was a seized opportunity for us,” Braden said. “We wanted to participate in this movement, to have something legitimate in this county that represents our marriage.”
Braden was in court earlier this month when attorneys for both sides delivered arguments on the case.
She said the judge was “fair” in the proceeding, pushing both sides to defend their arguments. And, while the couple anticipated that Hanes’ action would be shut down, she said the delivery of the ruling was harder than she expected.
“I had a much stronger reaction than I thought I was going to have. Sophie and I went into this not being naïve; we knew were participating in a bit of civil disobedience that ultimately probably wasn’t going to go through. But when the ruling came out, and I knew that no other same-sex couple in Montgomery County was going to be able to get married, and that the state of our marriage was up in the air and could be taken away, I really felt — I know it sounds simple — but I felt so discriminated against,” she said. “It was a strong slap in the face. To have something taken away from you that other people are granted felt more painful than living with the reality that we couldn’t get married in the first place.”
But, Braden said she and Forge don’t regret marrying in Montgomery County.
“I feel like we, along with the people involved in the ACLU court case, are all helping to crack the ceiling in Pennsylvania. Every gay and lesbian couple that gets married, every license that’s issued, that’s one crack in the ceiling, pushing the issue forward and bringing it to the forefront,” she said. “And that’s good for us, for our state, for our community. The ruling made me really angry, but resolved. It was like, ‘All right, let’s bring it on. What’s next?’”