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In new legal brief, Pennsylvania governor argues against county official’s marriage equality decision

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Pennsylvania state sealYesterday, Pennsylvania Gov. Tom Corbett and officials for the state Health Department filed a new legal brief in their quest to stop D. Bruce Hanes, a Montgomery County clerk, from issuing marriage licenses to same-sex couples.  The AP reports:

A Pennsylvania county court clerk’s decision to issue marriage licenses to same-sex couples is a separation-of-powers violation that “risks causing serious and limitless harm” in Pennsylvania and beyond, according to a legal filing Monday by lawyers for the state Health Department and Gov. Tom Corbett.

The filing in Commonwealth Court fleshed out the Health Department’s legal claim against D. Bruce Hanes, the Montgomery County orphan’s court clerk who has issued 116 marriage licenses to same-sex couples over the past three weeks.

“There is no limit to the administrative and legal chaos that is likely to flow from the clerk’s unlawful practice,” the administration’s lawyers wrote.

Hanes issued the first marriage license to a same-sex couple on July 24, citing the equal protection provisions of the Pennsylvania Constitution in support of his decision to issue same-sex marriage licenses.  At the time, Hanes said, “Those are provisions of the Pennsylvania Constitution which I think are diametrically opposed to the marriage law,” and also pointed to the Supreme Court’s invalidation of the Defense of Marriage Act in support of his actions.

Nearly a week passed before Pennsylvania officials filed suit in a state court to stop Hanes, arguing that he had “repeatedly and continously” ignored the 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 lawsuit said.

In yesterday’s filing, the administration argued that state officials cannot refuse to follow state law simply because they believe it does not comport with the state constitution.  Pennsylvania has a statutory ban on marriage equality which was passed in 1996, the same year that DOMA became law.

Corbett’s lawyers asked the state court to immediately order Hanes to stop issuing licenses.  The county official told the AP he had not read the administration’s brief.

In all likelihood, the Corbett administration will be successful in the state court, since it is well outside Hanes’s authority to unilaterally determine a law’s constitutionality.  Still, it is intriguing that the court has so far declined to issue an emergency order stopping Hanes from issuing marriage licenses.  In any event, the validity of the licenses that Hanes had authorized to date will have to be worked out by the court.

Last month, the ACLU filed a new legal challenge in a Harrisburg district court challenging Pennsylvania’s marriage equality ban.  The case is known as Whitewood v. Corbett.  A few days after the filing, state Attorney General Kathleen Kane announced that she would not be defending the ban in court.  “I cannot ethically defend the constitutionality of Pennsylvania’s (law banning same-sex marriage), where I believe it to be wholly unconstitutional,” she told reporters during a press conference in Philadelphia.  Gov. Corbett has said his administration will defend the law.

1 Comment

  • 1. Equality On Trial »&hellip  |  August 20, 2013 at 2:52 pm

    […] Gov. Tom Corbett’s administration sued Hanes in commonwealth court, arguing that he had “repeatedly and continously” ignored the law.  ”There is no limit […]

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