D. Bruce Hanes, the register of wills for Montgomery County, Pa. Hanes has… (Matt Rourke / Associated…)
A Pennsylvania court will consider whether a local clerk in the suburbs of Philadelphia acted properly in issuing marriage licenses to same-sex couples after he decided that he had to do so in the wake of the U.S. Supreme Court ruling that threw out portions of the federal Defense of Marriage Act.
D. Bruce Hanes, Montgomery County's register of wills, who also issues marriage licenses as part of his duties as clerk of the county orphans' court, approved more than 150 marriage licenses for same-sex couples in the weeks immediately after the June ruling by the nation’s top court. The state opposed Hanes’ action, arguing he lacked the authority to issue such licenses.
The case goes to state court for arguments on Wednesday in Harrisburg. It is the latest instance in which clerks, the municipal officials usually on the front line in issuing marriage licenses, are pitted against higher-ranked state officials.
For example, in New Mexico, local clerks in about half a dozen counties have begun issuing marriage licenses to same-sex couples. That state neither directly authorizes nor prohibits same-sex marriage.
The situation is different in Pennsylvania, which is the only state in the Northeast that has neither same-sex marriage nor civil unions.
“This 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,” lawyers for Gov. Tom Corbett wrote in a filing last week.
Nils Hagen-Frederiksen, a spokesman for the Office of General Counsel, the state’s lawyers on the case, told reporters that local officials don't have the authority to disregard state law based on their personal legal opinion.
“There are ramifications beyond the question of same-sex marriage,” he told the Los Angeles Times. “This is not about that constitutionality but about the question whether a local official can disregard law based on his own opinion.”
A separate federal suit is pending in Pennsylvania on the constitutionality of same-sex marriage, he said.
For Hanes, who was not immediately available to comment, the decision to grant the licenses was required by his oath to uphold the national and state constitutions.
The state's marriage law, his lawyers argued in their papers, “affects a fundamental human right, and precludes an entire class of individuals from enjoyment of that right,” especially in the wake of the Supreme Court ruling throwing out parts of DOMA.
Since that judicial action, a range of federal agencies have revised their practices so that same-sex couples can receive the same federal standing as do heterosexual couples.