Can one county clerk buck state law and get away with it? We’re about to find out.
A Pennsylvania judge on Wednesday promised to rule quickly after hearing oral arguments in the case of D. Bruce Hanes, Montgomery County's register of wills and clerk of the county orphan’s court, who has been handing out marriage licenses to same-sex couples since July, even though state law forbids it.
Pennsylvania is one of 35 states that limits marriage to heterosexual couples, and the only Northeastern state to neither allow gay couples to marry, nor enter into civil unions. But Hanes began issuing marriage licenses to same-sex couples on July 24, nearly one month exactly since the Supreme Court struck down a key provision of the federal Defense of Marriage Act (DOMA,) which defined marriage as a union between one man and one woman.
“I firmly believe that I’m on the right side of history,” said Hanes in an interview with NBC News.
Like the now defunct federal law, Pennsylvania’s DOMA--passed by the state legislature the same year as the federal rule (1996)--bans same-sex marriages, and prevents the state government from recognizing ones performed where they are legal. The law is facing a federal court challenge--and Pennsylvania Attorney General Kathleen Kane is refusing to defend the ban, which she found to be “wholly unconstitutional.”
Rather than wait for a ruling, however, Hanes decided to go ahead and grant marriage licenses to more than 150 gay couples. He argues that the state's same-sex marriage ban contradicts its constitution, which prohibits gender discrimination and interference with civil rights.
On Wednesday, the legality of those licenses and the marriages that have since followed, were tested in oral arguments before the Commonwealth Court. Republican Gov. Tom Corbett’s Health Department is seeking a court order to stop Hanes in an effort to make sure marriage registrations are “uniformly and thoroughly enforced throughout the state," reports the Associated Press.
Commonwealth Court Judge Dan Pellegrini did not signal how he would rule after hearing lawyers debate for over an hour. He did say that he wouldn't weigh in on the ban's constitutionality, but rather on the issue of "how power is allocated in the commonwealth of Pennsylvania."
Hanes’ actions are not unprecedented, and Wednesday’s hearing could influence other public officials to similarly defy or interpret such laws elsewhere. In New Mexico, about a half-dozen county clerks decided that state law--which neither prohibits, nor permits same-sex marriage--does not prevent them from issuing marriage licenses to gay couples. Fifteen Republican lawmakers have filed suit against one of those New Mexico clerks.
And nearly a decade ago in 2004, San Francisco Mayor Gavin Newsom directed clerks to issue same-sex marriage licenses shortly after the practice became legal in Massachusetts. California’s Supreme Court ruled months later that the city violated state law, and voided all same-sex marriages performed in San Francisco. Four years later, the court reversed that decision, only to see voters then pass Proposition 8, a state ban on same-sex marriage. Earlier this year, the U.S. Supreme Court let stand a ruling invalidating Prop 8, making California the 13th state to legalize marriage equality.