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Pennsylvania county official appeals ban on issuing same-sex marriage licenses to state supreme court

LGBT Legal Cases Marriage equality Marriage Equality Trials

Pennsylvania state sealD. Bruce Hanes, the Montgomery, Pennsylvania County Register of Wills, asked the state’s supreme court yesterday to consider a lower court decision prohibiting him from issuing marriage licenses to same-sex couples.  Reuters reports:

Montgomery County Register of Wills D. Bruce Hanes landed in the public spotlight in July when he began issuing gay marriage licenses, saying that a June ruling by the U.S. Supreme Court that knocked down a portion of the federal Defense of Marriage Act also made Pennsylvania’s statutes against same-sex nuptials invalid.

In Hanes’ appeal, county lawyers who are supporting his case argued that the September 12 court order that stopped him from issuing marriage licenses to gay couples contained legal and factual errors.

The appeal questions whether the Commonwealth Court that ordered Hanes to stop issuing same-sex marriage licenses had appropriate jurisdiction in the case and whether the state health department, which brought the lawsuit that lead to the order, had met the burden of proof needed to make its case.

In his brief, according to the Montgomery County Times Herald, Hanes argued that he “acts as a court of inferior jurisdiction in his role of issuing marriage licenses, a unique, discretionary function of the register of wills, acting as the clerk of the Orphan’s Court, that is not akin to the ministerial functions of Prothonotaries and other Clerks of Court.”  His brief also argues the state Health Department does not have standing to pursue the case because “the issuance of marriage licenses is a discretionary, not ministerial act, where the department suffered no harm, let alone any particularized harm from Hanes’ act of issuing marriage licenses to same-sex couples.”

As we’ve mentioned before, Hanes will probably face an uphill battle in the case because of Pennsylvania’s marriage equality ban.  It is likely that the state supreme court ruling will be based on procedural/jurisdictional issues and not the constitutional merits of the ban.

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