In just one week, Montgomery County has become ground zero in the political fight over same-sex marriages in Pennsylvania, and a little-known county official has become the catalyst for a battle that is now going to the courts.
The Pennsylvania Department of Health is suing D. Bruce Hanes, the county’s Register of Wills, in an effort to stop him from issuing any more marriage licenses to same-sex couples. The suit claims that Hanes is not performing the job he was elected to fulfill.
“Remember, I didn’t start this. This was not an issue with my office until recently, because believe it or not, since I was sworn in as the Register of Wills, not one same-sex couple had come forward and asked for a marriage license,” Hanes said the day before the suit was filed.
In 2007, Hanes became the first Democrat elected to serve as Register of Wills for the county. In addition to his other duties, which include probating wills and petitions for adoption, Hanes grants marriage licenses. The state, acting through the Pennsylvania Department of Health, took the not-so-common route of filing a Writ of Mandamus, asking the court to stop Hanes. Mandamus is a legal procedure, more often used by citizens, to compel a government employee to perform their job to the letter of the law.
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“It’s a method that is used procedurally when there is no case between two parties, no adversarial controversy,” said attorney Irwin W. Aronson whose legal expertise includes Public Policy, labor and legislative law. “This is really a political case, not a legal case, that is going to be teed up, if you will, by politicians in a court room.”
Pennsylvania is the only state in the Northeast without same-sex marriages or civil unions. The Pennsylvania Marriage law was enacted in 1990 and amended in 1996 to define marriage as a civil contract in which a man and a woman take each other as husband and wife. It also says that same-sex marriages, even if entered legally elsewhere, are void in Pennsylvania.
In June, the U.S. Supreme Court struck down part of the federal government’s Defense of Marriage Act. The court said that by denying legally wed same-sex couples marital status under federal law, the federal government was usurping the authority of the states to regulate marriage. That ruling has left the legal status of same-sex marriages in Pennsylvania, unclear.
“What we’re dealing with are competing interpretations of what civil rights are. Does the state have, any longer, any remaining rights to litigate this particular question?” Aronson said.
Shortly after the Supreme Court ruling, the American Civil Liberties Union sued to challenge the Pennsylvania Marriage Law and Pennsylvania Attorney General Kathleen Kane announced that she could not ethically defend the state law in court because she didn’t believe in it. Her interpretation of the new legal landscape was that the Commonwealth’s law was “wholly unconstitutional.”
After Kane’s announcement, Hanes began receiving requests for same-sex marriage licenses.
When he made history by granting the first same-sex marriage license in the state on June 23, he said he did it because he wanted to "come down on the right side of history and the law. In the week since, Hanes’ office has granted 34 same-sex marriage licenses and recognized and recorded six same-sex marriages.
Janet Kelley, a spokeswoman for Governor Tom Corbett, said the Department of Health filed the Mandamus petition because it’s responsible for maintaining marriage license records and therefore has the ability to enforce the law.
“Mandamus is the proper legal action to compel a public official’s compliance with an existing law,” Kelley said.
In addition to suing Hanes, the state also blasted Attorney General Kathleen Kane, accusing her of usurping her duties, betraying the Governor and setting dangerous precedent by refusing to defend the state’s marriage statute on constitutional grounds. James D. Schultz, the state’s General Counsel, said Kane’s interpretation of the Supreme Court ruling’s effect on the state law was “simply wrong.”
“The Court in no way adjudicated the question of whether a state law defining marriage as exclusively between a man and a woman violates due process or equal protection. To the contrary, Windsor clearly leaves for another day the limits that the U.S. Constitution might impose on the State in their regulation of the marital relationship.”
In a letter responding to Schultz late Tuesday, Deputy Attorney General Adrian King defended Kane’s actions, saying, “As you know, Governor Corbett is a steadfast supporter of the Marriage Law. It is reasonable to assume that the Governor seeks to have his position vigorously represented before the court. Given the Attorney General’s fundamental disagreement with the Governor on this issue – in her capacity as his attorney – the Rules of Professional Conduct clearly require her withdrawal.”
“Furthermore, it is not your job to tell the Office of the Attorney General – an independent agency – what its duties and obligations are,” King wrote.
For the case against Hanes, standards for the state will be higher than the burden of proof in a trial, according to Aronson.
“There will be a requirement that there be a demonstration that the harm of not limiting Hanes’ conduct is greater than the harm that would befall the citizens of the Commonwealth if he’s not restrained,” Aronson said.
The Mandamus petition says, “there is no limit to legal and administrative chaos that is likely to flow” from Hanes’ actions. One consequence, the petition predicts, is that same-sex couples who “falsely believe” they are legally married will apply for state benefits or treatment they “erroneously” believe they are entitled to.
Aronson believes the State’s fight against Kane will take a long time and involve an extraordinary investment of time, intellect and money. But the state says no additional help is being brought in to handle the cases.
“Attorneys already on the staff of the Office of General Counsel (including attorneys assigned to the Department of Health) are representing the Commonwealth parties in litigation involving the Pennsylvania Marriage Law,” Kelley said.
“From my perspective, I’m just a little bit shocked that we have the funds to do this, when we don’t have the funds to educate our kids or fix our roads,” Aronson said.
“It’s getting comical, except for the victims,” he said.
State Representative Brian Sims, the first openly gay candidate to be elected to the state legislature, said he did not find today's actions by the state surprising, but rather a part of the process that was expected. Sims, also an attorney, says the fight for same-sex marriages to be recognized in Pennsylvania has its best chance in the courts.
"I'm very fond of reminding people that we have three branches of government," Sims said. "Here in Pennsylvania, two are very hostile."
Tonight at 5, the DelcoTimes.com tackles the same-sex marriage issues with a conversation, streamed live. Editor Phil Heron will be joined by the Delaware County Register of Wills, Hugh Donaghue, who has said he will uphold the state's marriage law and by state Senator Daylin Leach of Haverford. Leach is one of the state's leading gay rights advocates. You can watch that debate in the discussion in the embedded window below: :