In a legal brief filed to stop Montgomery County Register of Wills Bruce Hanes from issuing marriage licenses to same-sex couples, the Governor’s counsel equated the legal status of LGBT couples seeking to become involved in the case to that of 12-year-olds.
“Had the Clerk issued marriage licenses to twelve-year-olds in violation of state law, would anyone seriously contend that each twelve-year-old has a legally enforceable ‘interest’ in his ‘license’ and is entitled to a hearing on the validity of his ‘license,’ else his due process rights be violated?” the brief stated. “Obviously not; there must be something of actual value or legitimacy at issue in order to rise to the level of a legally enforceable interest.”
Update: Corbett issued a statement calling the comparison inappropriate:
“The case involving Montgomery County revolves around a very basic question: Does a public official have the authority to disregard state law based on his own personal legal opinion about the constitutionality of a statute? The analogy chosen in the legal brief filed on August 28th is inappropriate.”
Essentially, the Governor’s attorneys were saying that same-sex couples who had received the licenses have no standing to get involved in the case against Hanes.
In order to get involved in the case on Hanes’ behalf, the couples must show that they would be directly affected by its outcome. But Corbett’s attorneys argued that the licenses were issued against the law in the first place, they were at no point were legally binding. Thus, the outcome of the case couldn’t affect them.
That’s where the comparison to 12-year-olds comes in. Corbett’s attorneys were not drawing an equivalent between the moral standing or inherent legitimacy of LGBT couples versus children. Rather, they were making the case that neither type of couple would have standing in the Hanes case.
But the attorneys chose a poor example, and the Pa. Democratic Party pounced.
“Yesterday, in a legal brief filed to defend Pennsylvania’s discriminatory gay marriage law, Tom Corbett’s office, led by his top lawyer, compared LGBT adults who have acquired marriage licenses to 12 year old children. This is beyond unacceptable and shows that the contempt Tom Corbett has for LGBT Pennsylvanians permeates his entire administration,” said Pennsylvania Democratic Party Chairman Jim Burn.
“The brief was written by Tom Corbett’s top lawyer – James Schultz – and signed by two other top lawyers in the Corbett administration. They should be fired immediately.”
Ted Martin, the Executive Director of Equality Pennsylvania, also released a statement, although he seemed more disappointed and saddened than angry at the Governor.
“The statements made by the attorneys do not simply defend the laws of the state; they deny loving, committed same-sex couples the dignity they deserve. We’re talking about couples who have been together for decades, who have built families together, who have given back to communities across Pennsylvania. We’re not talking about children.”
Corbett’s General Counsel fired back in a press release aimed as much at the press as it was at Pa. Democrats.
“Contrary to recent headlines, the administration does NOT equate same-sex marriage to the marriage of minors,” said Pennsylvania General Counsel James Schultz.
“In one passing reference, the legal brief notes other individuals whose marriages are excluded by Pennsylvania law, would have no standing to intervene in this type of case – and in any other circumstance the court would never entertain that type of effort to expand the scope of a case.”
Schultz turned his criticism to members the press, who he accused of distorting the legal brief to generate traffic.
“To distort the legal position of the commonwealth, either because of personal bias or as a gratuitous effort to draw a larger audience of readers or viewers is intellectually dishonest and disingenuous,” he blasted.
Legally, the Governor’s Counsel is accurate. But rhetorically, they’ve ceded the high ground to Democrats. It’s the latest fumble for an administration that has dealt awkwardly with contentious social issues.
The fallout validates, politically at least, the decision of Democratic Attorney General Kathleen Kane not to commit the resources of her office to charge Hanes or to defend the state’s ban on same sex marriages.