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Clerk in one Pennsylvania county seeks to intervene in same-sex marriage case

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Schuylkill County’s Clerk of the Orphan’s Court, Theresa Santai-Gaffney, has asked the federal district court judge who struck down Pennsylvania’s same-sex marriage ban to allow her to intervene in the case. Her filings say she intends to seek a stay of same-sex marriages in the state, and then an appeal to the Third Circuit Court of Appeals.

More here:

Santai-Gaffney, whose office issues marriage licenses in the county, asked U.S. District Judge John E. Jones III on Friday to allow her to intervene in the case, with a view toward appealing his May 20 order declaring Pennsylvania’s ban on gay marriage unconstitutional.

Jones, whose chambers are in Harrisburg but who lives in Pottsville, is one of several federal judges who have declared state laws banning gay marriage unconstitutional.

Any appeal of Jones’ decision would be heard by the Philadelphia-based 3rd U.S. Circuit Court of Appeals.

Santai-Gaffney said the issue should not stop with Jones’ ruling, although Gov. Tom Corbett, who had defended the law in court, has said he will not appeal that decision.

“An appeal is necessary so that the judicial process is not abandoned,” she said. “The people of Pennsylvania deserve to hear from the court of appeals on this important issue because a single judge should not be able to nullify the will of the majority without an appeal.”

Equality Pennsylvania issued a statement:

“It saddens me, as I am sure it saddens many Pennsylvanians, that some individuals are having such a hard time accepting that all people deserve to be treated equally regardless of our differences. We have branches of government for a reason, and the judicial branch has a legitimate right to interpret whether laws meet the constitutional standards that our nation’s founders created.

We are glad that Judge Jones examined the case and came to a reasonable conclusion. We also thank Gov. Corbett for recognizing that the majority of Pennsylvanian’s understand that love is love.

The fact is that marriage matters to all families, and lesbian, gay, bisexual, and transgender families in Pennsylvania deserve the same dignity and protection as anyone else.”

The memo in support of the motion to intervene is here. The memo in support of the motion to stay is here.

Thanks to Kathleen Perrin for these filings


  • 1. TDGrove  |  June 9, 2014 at 8:16 am

    Got a bit of a jolt when reading this. The documents include a proposed order for Judge Jones to sign. While I was scanning them at first, I thought the right to intervene and the stay had already been granted! Instead, they are "just sign this please" proposals. A pretty funny way to get spooked. This is my state as well, it would sadden me to see them succeed in efforts to "stay the gay away".

  • 2. Stefan  |  June 9, 2014 at 9:07 am

    It seems a stay is not being requested, as she is still issuing licenses to same-sex couples and doesn't intend to stop.

  • 3. TDGrove  |  June 9, 2014 at 9:14 am

    The documents listed specifically request a stay. That is one of the things I saw that made me jump. Click on the scribd links from the article and one of them is a request for a stay.

  • 4. Michael Grabow  |  June 9, 2014 at 11:13 am

    Same here! I was really confused because I knew I hadn't read anything about that happening and thought maybe the scribd documents had just been updated or something.

  • 5. KACinSTL  |  June 9, 2014 at 8:22 am

    I'd like to issue a statement in regards to Equality Pennsylvania's statement:


  • 6. Dann  |  June 9, 2014 at 8:42 am

    Does the fact that Pennsylvania is in the same circuit as already marriage equality states as Delaware and New Jersey have any influence on this new development? For example would a stay be less likely?

  • 7. Bruno71  |  June 9, 2014 at 9:04 am

    Hard to say. But I think given the untimeliness of the motion, a stay is highly unlikely.

  • 8. ebohlman  |  June 9, 2014 at 11:17 am

    Untimely in the everyday sense, though not the legal sense (it was within the thirty-day window). The fact that marriages have been taking place, and not as a result of a "race condition" (engineering terminology here; a race condition occurs when the output of a system can depend on the relative timing of two events whose relative timing isn't specified; a legal analogy would be an order issued on Friday after an oral motion for a stay that won't be heard until Monday) probably makes it more likely that a court would actually follow the ordinary four-factor test rather than looking to the Kitchen stay, since the circumstances just aren't comparable this time.

  • 9. Matt  |  June 9, 2014 at 8:46 am

    Does anyone think this has a chance of working? I'm not a lawyer, but the motion doesn't look timely to me. A federal district court judge in Oregon recently denied, as untimely, a motion to intervene that was filed prior to oral arguments on the case.

  • 10. SeattleRobin  |  June 9, 2014 at 6:50 pm

    I can't make a guess as to rhe chances of success in this case. But I can point out there are important distinctions between this and NOM in the Oregon case. In terms of timeliness, NOM waited until less than 48 hours before the hearing to file their motion to intervene, even though they clearly knew about the situation for a couple months. They had no real adequate explanation for the delay.

    In their motions, they listed as legal authority cases in which people were allowed to intervene even after a court issued an opinion, so that the intervenor could appeal, when no one was left of the original parties to appeal.

    Those cases didn't help NOM, as the reasons for which the late interventions were granted were too different from NOM's situation. However, they could possibly support late intervention by this clerk. The clerk's request could be considered timely because in this case the decision not to appeal was not made until after the judge issued his ruling.

    So it's possible the clerk could get past the timeliness hurdle. Whether she can also get past a standing hurdle I have no idea.

  • 11. Paddy  |  June 11, 2014 at 5:50 pm

    I asked a rep in Philly, he said there is no way this will stand, and the PA law is here to stay!!!

  • 12. sfbob  |  June 9, 2014 at 8:51 am

    Despite what the brief says, it doesn't seem to me as though the motion is timely at this point (I realize I am more or less repeating Matt's comment above here).

  • 13. Dave G.  |  June 9, 2014 at 8:53 am

    From what I understand the 3rd Circuit already applies heightened scrutiny from the Windsor case so a stay should be unlikely. Someone can correct me if I'm wrong. Sadly though we've seen similar surprises on these stays so who know.

  • 14. Bruno71  |  June 9, 2014 at 9:03 am

    I wasn't aware of anything citing Windsor in the 3rd Circuit. Have I missed something, or do you mean the 9th Circuit in the Smithkline case?

  • 15. TDGrove  |  June 9, 2014 at 9:11 am

    Maybe he is thinking that Windsor came out of the 3rd, but it came out of the 2nd. (New York)

  • 16. BenG1980  |  June 9, 2014 at 9:13 am

    The Windsor case originated in New York, which is in the 2nd Circuit, not the 3rd. Therefore, it was the 2nd Circuit that adopted intermediate scrutiny for classifications based on sexual orientation.

  • 17. Dave G.  |  June 9, 2014 at 9:21 am

    I knew that windsor applied intermediate scrutiny but could never remember whether New York is in the third or second.

  • 18. StraightDave  |  June 9, 2014 at 11:22 am

    Here's a handy map of the Circuit boundaries

  • 19. Dave G.  |  June 9, 2014 at 2:54 pm


  • 20. brandall  |  June 9, 2014 at 9:03 am

    "Perhaps less obvious, but no less important, is Clerk Gaffney’s interest in knowing definitively the nature of her marriage-related duties going forward. Because this Court’s Injunction could potentially impact what she must and must not do, Clerk Gaffney has an interest in clarity as to the precise contours of her post-judgment responsibilities. "

    This sounds like she is requesting this in her official county capacity. Who is paying the legal fees for this?

  • 21. Fr Bill  |  June 9, 2014 at 9:14 am

    Excellent question maybe the head of County Govt should tell the voters who pays. Next question – is she appointed or elected? One way or another they need a new clerk. That county is in east PA where the majority favor ME

  • 22. Frisky1  |  June 9, 2014 at 2:33 pm

    While Schuylkill County may be relatively close to Philadelphia and Allentown compared to most of the state, it is solid 'Tucky territory.

    You all may remember the police chief who went on youtube rants about "libtards" and gays and gun rights. And his mayor that initially supported him, and his supporter's gun that went off during one of the council meetings discussing him. That was in Schuylkill County. And although Centralia, the town that's been on fire for 40 years isn't in Schuylkill, it's only just over the border.

  • 23. davep  |  June 9, 2014 at 9:15 am

    Good question about the fees. Although,of course, her 'argument' here is nonsense. She is trying to suggest that the only way she will know how to properly do her job would be to intervene in the trial. All she has to do is follow the instructions that come from the court as a result of the trial, regardless of what those instructions are. Her direct involvement in the trial would be an attempt to INFLUENCE or CHANGE those instructions. Her direct involvement in the trial wouldn't change how clear those instructions are, or her ability to comprehend and follow them, one bit.

  • 24. Steve  |  June 9, 2014 at 10:42 am

    Probably one of the usual anti-gay groups having a found another willing puppet with her.

  • 25. Bruno71  |  June 9, 2014 at 12:00 pm

    I guess I'm not too surprised they found one in Pennsyltucky. There's a documentary called Shenandoah that shows how one town in Schuylkill County actually acquitted two teenage boys who by their own admission committed a hate murder against a Latino man.

  • 26. Paddy  |  June 11, 2014 at 5:52 pm

    I Agree, the PA AFA is supporting her. And, she found a pro bono lawyer to defend the case. Which, is telling on two notes. does that county not have lawyers, or did they not want to defend it, so she went to a conservative county to find someone?

  • 27. brandall  |  June 9, 2014 at 11:39 am

    I've been doing some political research:

    1)As the Republican nominee looking to become congressman in the 17th District, Schuylkill County Coroner Dr. David J. Moylan III supports Theresa Santai-Gaffney, Schuylkill County's register of wills and clerk of the Orphans' Court, and her effort in appealing the May 20 order declaring Pennsylvania's ban on gay marriage unconstitutional.

    2) Santai-Gaffney is also Moylan's campaign manager for Schuylkill County in his run for Congress.

    3) Moylan said Santai-Gaffney originally wanted to step down as manager after making the motion Friday.

  • 28. brandall  |  June 9, 2014 at 9:06 am

    I believe this is the weakness in her arguments:

    "But on the other hand, because the Court’s Injunction enjoins “Defendants” from enforcing Pennsylvania’s Marriage Laws, and because Clerk Gaffney is not a party, she arguably is not directly bound by this Court’s Injunction. Dckt. No. 134"

  • 29. Roulette00  |  June 9, 2014 at 10:28 am

    I believe this was tried in California to no avail. It should not be necessary to sue each county clerk individually, or name specifically each person who might be a clerk in the future.

  • 30. TxLawyer  |  June 11, 2014 at 6:39 pm

    28 USC 2202: "Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment."

    So there are two parts here:
    1. Clerk Gaffney needs to be an adverse party which she is currently not;
    2. Reasonable notice and a hearing;

    So if you want a declaratory judgment to apply against someone else other than the defedants named in the lawsuit, you have to sue them and ask for the declaration/injunction to apply against them also.

  • 31. Bruno71  |  June 11, 2014 at 7:23 pm

    Except she's been instructed by her superiors to abide by the ruling. She's bound to her superiors. This is why she's actually currently distributing licenses equally.

  • 32. Zack12  |  June 9, 2014 at 9:09 am

    It has a small chance of working, as this is in the 30 day appeal window.
    Does it have a chance of being granted?
    Propbably not, as from what I understand of PA law, an individual clerk does NOT have standing to decide the marriage laws.
    That point was made quite clearly when D. Bruce Hanes of Montgomery County started issuing licenses and was told by the State Supreme Court that he didn't have the authority to decide the marriage laws of PA.
    I imagine this bigoted clerk will be told the same thing.

  • 33. JayJonson  |  June 9, 2014 at 9:23 am

    I think you are right. We should now be grateful that the state sued Hanes to establish that a county clerk did not have the right to interpret the marriage laws of PA.

  • 34. Thomas  |  June 9, 2014 at 12:48 pm

    On the other hand if the decision had gone the other way judge Pellegrino would have been able to rule on the merits of the case and ME might have come earlier to PA. But that said, the ruling does undermine the present clerk's argument for standing to appeal. Past seeming victories often have unintended consequences for future litigation.

  • 35. Zack12  |  June 9, 2014 at 1:10 pm

    It's what happened back in Oregon in 2005 when all marriages performed there were nullified.
    It was made clear clerks didn't have standing to decide marriage laws, which is one of the reasons NOM had no case in trying to intervene.

  • 36. Bruno71  |  June 9, 2014 at 12:03 pm

    I still think the timeliness issue would preclude them from even considering her standing. 30 day window or not, this is a tried and decided case, and there is no need here for a redo.

  • 37. Stefan  |  June 9, 2014 at 9:16 am

    She will likely be denied intervention, citing the same reasons as to why the Mountgomery County clerk was ordered to stop issuing licenses.

  • 38. Roulette00  |  June 9, 2014 at 9:25 am

    I think her attorney is still in the third grade.

    "Dear Judge,

    Do you want gay marriage to continue? Check this box [ ]
    Do you want to stop gay marriage? Check this box [ ]

  • 39. SoCal_Dave  |  June 9, 2014 at 10:50 am

    Is this sort of "check yes or no" thing typical practice?
    IANAL and have no clue, but I'd guess that a judge could find this pretty insulting.

  • 40. Japrisot  |  June 9, 2014 at 12:16 pm

    Oh yes, we write proposed orders all the time. Some judges require them; it saves time.

  • 41. SoCal_Dave  |  June 9, 2014 at 12:29 pm

    Thanks, Japrisot. Add one more thing learned at EoT.

  • 42. Steve  |  June 9, 2014 at 9:40 am

    Is there really grounds for appeal other than I think the decision needs to come from a higher court because of its social impact? Not a lawyer but the comments here are always very informative.

  • 43. brandall  |  June 9, 2014 at 10:55 am

    While we waiting for updates on today's 1PM hearing, I found this little dizzy in the newly adopted Texas Republican Party platform which is in effect through 2016:

    "We support withholding jurisdiction from the Federal Courts in cases involving family law, especially any changes in the definition of marriage."

    I'll let the statement speak for itself.

    Read more:

  • 44. FilbertB  |  June 9, 2014 at 11:02 am

    The language in that and the various statements literally gave me chills.

  • 45. Zack12  |  June 9, 2014 at 12:26 pm

    It's not going to be pretty when marriage equality is the law of the land in parts of the South, it's just not.

  • 46. Steve  |  June 9, 2014 at 12:29 pm

    It will be like France where the number of hate crimes went up greatly.

  • 47. StraightDave  |  June 9, 2014 at 11:32 am

    Does that mean they're planning to rewrite the Constitution? "withholding jurisdiction"??? Who's gonna do that? Do they think they're God? Such a joke.
    I know, I know, it's just another dog whistle, but even average people must start to look at them strangely now.
    And I know TX still thinks they're their own country, which will only make the end result so much sweeter.

  • 48. davep  |  June 9, 2014 at 3:49 pm

    Meh. They can posture and pander to the bigot base all they want, and they can wish they had authority to override the federal Constitution, but that doesn't change how our system works.

    They are losing on this issue badly, because it is an un-win-able attempt to keep unconstitutional discrimination enshrined in our civil laws, and if they insist on continuing to fight this particular battle it will continue to drag them down.


    And this kind of anti-gay grandstanding merely clarifies who the enemy is. That's good too.

  • 49. TomInElPaso  |  June 9, 2014 at 6:44 pm

    The Republicans are circling the wagons. They know this election is the last of their rodeo. Come 2016 and well into the next decade they're in reformation. The party's a holy mess and they know it. A new rodeo is getting ready to take the state back. One word, Hispanics.

  • 50. Margo Schulter  |  June 9, 2014 at 11:08 am

    Roulette00, in fact you have well summed up precisely what happened in California in the immediate wake of Hollingsworth v. Perry almost a year ago now. After SCOTUS ruled that the ballot proponents for Proposition 8 had no Article III standing to appeal, thus reinstating Judge Walker’s District Court decision striking down the proposition and instituting marriage equality, some of the proponents tried to argue that the decision applied only to the counties of the original plaintiffs, not to the rest of the state.

    California Attorney General Kamala Harris acted swiftly and decisively to assert her understanding that marriage equality applied to all 58 counties, and that the relevant officials were bound to issue marriage licenses accordingly, a result also advanced by a swift issuance of a mandate by the Ninth Circuit. That made possible the first new marriages in California on June 28, 2013, only two days after the SCOTUS decision. However, the efforts of Prop 8 proponents to contest the validity of the ruling throughout the state continued, as the marriages happily proceeded, until the California Supreme Court on August 14 declined to hear the challenge, thus confirming that marriage was here to stay in all 58 counties.

  • 51. MichaelinFlorida  |  June 9, 2014 at 11:38 am

    Judge Jones may just "red stamp" this DENIED. Like SCOTUS did in Oregon.

  • 52. Bruno71  |  June 9, 2014 at 11:57 am

    Pretty sure he'll deny it. I can't imagine the 3rd or SCOTUS won't deny it either, but it's more likely to come from up the chain than from Jones.

  • 53. Stefan  |  June 9, 2014 at 11:59 am

    If anything the higher up you go the more strict they are with standing.

  • 54. debater7474  |  June 9, 2014 at 1:07 pm

    As a resident of PA this enrages me. There's no way to get marriage equality through the legislature for a decade, as the house and senate are too gerrymandered in favor of Republicans after 2010. If her effort succeeds, gay marriage could be blocked for a long time despite the fact that polls show over 55 percent of PA residents favor gay marriage.

  • 55. Whistleblower  |  June 9, 2014 at 6:55 pm

    Folks, this is NOM is sheep's clothing. Notice how after they lost in OR now a "county clerk" is (openly) doing what NOM would have otherwise done? I don't think this will work because this clerk was not a named party–it was the person that has authority over her and that person, along with the governor, have decided not to appeal.

  • 56. Zack12  |  June 9, 2014 at 8:00 pm

    I sure one of the anti-gay groups convinced her she would have standing.
    Here in NY, there were some bigoted clerks that dragged their feet until the very end.

  • 57. StraightDave  |  June 10, 2014 at 8:12 pm

    What's the going rate for a clerk to act as a sock puppet for NOM in an appeal like this? All they have to do is lend their name (and maybe unlist their phone number).

  • 58. Whistleblower  |  June 9, 2014 at 8:57 pm

    " Moreover, the Department of the Health has standing in its own right to bring this action. As the Supreme Court has explained:[ W]hen the legislature statutorily invests an agency with certain functions, duties, and responsibilities, the agency has a legislatively conferred interest in such matters. From this it must follow that, unless the legislature has provided otherwise, such an agency has an implicit power to be a litigant in matters touching upon its concerns. In such circumstances the legislature has implicitly ordained that such an agency is a proper party litigant, i.e., that it has 'standing' …" Commonwealth of Pennsylvania v. D. Brunce Hanes, in his official capacity. (This is the case the ordered the county to stop issuing licenses.) This case explains that the "agency" not the clerk has "standing." Similar to what happened with Prop. 8 where all persons under the control of the agency were enjoined from enforcing Prop. 8. The irony of course is that the anti-gay marriage case will not be used a precedent as to why the clerk has no standing.

  • 59. Pennsyltucky Proud  |  June 10, 2014 at 7:56 pm

    Although I disagree with many of the conclusions posited here, I am overjoyed in the respectful tone that the posters talk about the opposition. That said, with respect to some of the statements about Mrs. Gaffney not having standing to intervene and not having precedent to do so, I would call your attention to the Bostic case currently before the 4th Circuit in Virginia. There the Court permitted the Prince William county clerk to intervene, post trial opinion, due to the fact that the decision affected every Virginia county clerk and due to the original named parties not exercising their right to appeal the district court. Her motion to intervene was granted by the 4th Circuit AND it was argued last month.

  • 60. ebohlman  |  June 10, 2014 at 10:34 pm

    The relationship of county clerks to the larger state government is a matter of state law that varies from state to state. VA clerks do have standing; CA or OR clerks don't. The Hanes decision seems to indicate that PA's clerks are more like CA's clerks than VA's.

  • 61. Zack12  |  June 11, 2014 at 12:24 am

    Indeed… even though it's a federal issue, many courts will still defer to the state government on who has standing to defend, especially in light of the Prop 8 case.

  • 62. Sagesse  |  June 11, 2014 at 3:38 am

    One of the ironies of Judge Crabb's request for input on the wording of the WI injunction is that the state is going to have to set out exactly how the injunction needs to be worded so that they can compel the clerks and the dept of vital statistics (not sure of the proper name) to comply with the judgement… that the state is opposing.

    Perhaps this is a template for requiring the state government to lay out exactly how the responsibility for issuing marriage licences works in their state. Looking forward to the WI AG's brief to see what he could have done, but didn't, to keep marriages from happening since Friday.

  • 63. Whistleblower  |  June 10, 2014 at 8:53 pm

    That is a good point (re Mrs. Gaffney). My point was focusing more on the clerk getting standing AND putting all of PA marriages on "hold." She may find a way in, I just don't think she will be able to stop the marriages in PA from moving forward — especially after what happened in OR. We shall see…

  • 64. Zack12  |  June 10, 2014 at 9:47 pm

    That's my thought as well. Even if she's granted standing, I don't see how she can request that all marriages be put on hold.
    I'll say this, citing her religious beliefs is NOT the best route to go in asking for intervention.

  • 65. Rose  |  June 11, 2014 at 6:27 pm

    Either a County Clerk has the ability to intervene and decide for themselves that they DON'T have to follow the ruling or they DON'T……and if the one Clerk DIDN'T have the ability to issue marriage licenses because it was outside his authority, then the same should apply to this Clerk and she should just do her job or quit!!!

  • 66. Equality On TrialThis sum&hellip  |  July 12, 2014 at 10:51 am

    […] Circuits because all states in the first two already have marriage equality, and a clerk’s attempt to intervene in the Pennsylvania case (the last state within that circuit to win marriage equality) was rejected by the district court […]

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