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In filing, Pennsylvania officials ask court to bar county official from issuing marriage licenses to same-sex couples

Marriage equality Marriage Equality Trials

Pennsylvania state sealIn a new legal brief filed yesterday, Pennsylvania state officials asked a court to prohibit a county official from issuing marriage licenses to same-sex couples and decline a request to join the lawsuit filed by 32 couples who have obtained such licenses.

Pushing back on arguments made by the same-sex couples–and by the county official, Montgomery County Clerk of the Orphans’ Court D. Bruce Hanes–that the court should decide the constitutionality of Pennsylvania’s marriage equality ban, the state’s lawyers urged the court only to consider the procedural issues in the case.

“[T]his case is about one thing: whether a local official may willfully disregard a statute on the basis of his personal legal opinion that the statute is unconstitutional,” the officials wrote in their brief.

The couples’ arguments, the state officials wrote, would serve to sidetrack the purpose of the litigation, which was filed by the state in order to stop a county official from acting in contravention of state law. The proper judicial decision in that challenge, the state argued, is clear, citing similar cases in New York and Oregon and quoting the California Supreme Court’s decision in a case known as Lockyer that came in response to San Francisco’s decision to issue marriage licenses to same-sex couples despite a state law prohibiting such actions:

“‘[T]he narrow issue implicated’ by the local officials’ actions in marrying same-sex couples was ‘weather a local executive official who is charged with the ministerial duty of enforcing a state statute exceeds his or her authority when, without any court having determined that the statute is unconstitutional, the official deliberately declines to enforce the statute because he or she determines or is of the opinion that the statute is unconstitutional.'”

In its brief, the state argued that the same-sex couples are free to initiate new litigation asking state courts to invalidate Pennsylvania’s marriage equality ban, and noted that one such challenge–known as Whitewood v. Corbett and filed by the ACLU–is currently pending.

Intriguingly, Pennsylvania officials told the court that the state is “not seeking to invalidate the marriage licenses already issued to [the couples],” but rather seeking that “the Clerk … be prevented from issuing new or additional marriage licenses to same-sex couples in the future” [emphasis in original].

Still, the state was adamant in its brief that such licenses are invalid, writing bluntly that “[m]arriage licenses issued to disqualified couples do not fit the bill–they are void.”  Because of this, state officials said that the couples have no concrete interest in joining the lawsuit, employing an unusual comparison with minors seeking marriage licenses:

Had the Clerk issued marriage licenses to twelve-year-olds in violation of state law, would anyone seriously contend that each twelve-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?”

Despite the occasional diversions it takes towards deriding the same-sex couples from attempting to intervene in the case, the brief’s central claim is concise and persuasive: “The Clerk claims for himself the judicial power to declare laws unconstitutional, along with the legislative power to devise an alternate system of marriage.”

Because Hanes acted of his own accord and without any judicial determination about Pennsylvania’s marriage equality ban, it seems likely that the state will prevail.

You can read the full filing below, via Equality Case Files.  H/t to Kathleen for this.

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  • 1. Wednesday  |  August 29, 2013 at 8:55 am

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