Thursday September 12,
2013
Pa. Judge To End
Same-Sex Marriage
HARRISBURG, Pa. - A Pennsylvania judge on Thursday ordered
a suburban Philadelphia clerk to stop issuing marriage
licenses to same-sex couples.
Commonwealth Court Judge Dan Pellegrini said Montgomery County
Register of Wills D. Bruce Hanes did not have the power to
decide on his own whether Pennsylvania's same-sex marriage ban
violates the state constitution.
"Unless and until either the General Assembly repeals or
suspends the Marriage Law provisions or a court of competent
jurisdiction orders that the law is not to be obeyed or
enforced, the Marriage Law in its entirety is to be obeyed and
enforced by all commonwealth public officials," Pellegrini
wrote.
It was not immediately clear what the decision would mean to
those who have already received a license.
The state Health Department under Republican Gov. Tom Corbett
sued Hanes after he began issuing licenses to same-sex couples
in July, despite a 1996 state law that defines marriage as
between a man and a woman. The department argued that Hanes'
actions could create chaos.
James Schultz, Corbett's general counsel, issued a statement
saying the key issue was whether local officials can decide
which laws to uphold or reject, based on their personal legal
opinion.
"We respect the interests and dignity of all the parties
involved in this case, but we are a government of laws and it
is important that all office holders across the state enforce
those laws uniformly," Schultz said.
A Montgomery County spokesman said the ruling was being
analyzed and they planned to comment later Thursday.
A separate challenge to Pennsylvania's same-sex marriage ban
is pending in federal court.
A lawyer for some of the same-sex couples who obtained
licenses from Hanes, Robert Heim, said Pellegrini said the
legality of the licenses was not an issue before him.
"The 32 couples that I represent are going to have to decide
whether they also want to litigate it in the Commonwealth
Court, since Judge Pellegrini virtually invited it," Heim
said.
In his opinion, Pellegrini said "there are no obstacles
preventing those adversely affected by the provisions of the
Marriage Law," such as the 32 couples, "from asserting their
own rights in an appropriate forum," and he cited the pending
federal lawsuit as an example.
Hanes, a Democrat and an elected official whose duties
include marriage licenses, said the law conflicts with his
constitutional obligations. His actions followed the U.S.
Supreme Court's decision to throw out part of the federal
Defense of Marriage Act, and a statement by Pennsylvania
Attorney General Kathleen Kane that the same-sex marriage ban
was unconstitutional.
Kane is not defending the federal challenge to the same-sex
marriage ban, having turned over that case and the Hanes
matter to Corbett's lawyers.
ACLU of Pennsylvania attorney Vic Walczak said Pellegrini's
decision will have no impact on the federal case.
"It is full speed ahead for the ACLU lawsuit," Walczak said.
Pellegrini wrote only courts have the power to determine if a
statute is unconstitutional.
"In this case a clerk of courts has not been given the
discretion to decide that a law . . . he or she is charged to
enforce is a good idea or a bad one, constitutional or not,"
the judge wrote. "Only courts have the power to make that
decision."
Marcus Saitschenko of Philadelphia, who with his partner was
among the first to obtain a license from the clerk, said he
has faith in the legislative and judicial process.
"I'm confident that we will have marriage equality in
Pennsylvania soon," Saitschenko wrote in an email Thursday.
"When my partner and I are legally able to be married in our
home state, we will do so."
Pennsylvania is the only northeastern state that does not
grant legal status to marriage or civil unions between
individuals of the same sex. Hanes has issued 174 licenses to
same-sex couples.
A similar scenario is playing out in New Mexico, where a
county clerk concluded the law did not prevent him from
issuing same-sex licenses, and about a half-dozen others in
that state have followed suit.
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