Judge Blocks Montco Same-Sex Marriage Licenses

Bruce Hanes
Montco Register of Wills Bruce Hanes

Montgomery County Register of Wills Bruce Hanes must stop issuing marriage licenses to same-sex couples, a Pa. Commonwealth Court judge ruled Wednesday.

Hanes announced in July that, following recent decisions by the U.S. Supreme Court, he believed Pennsylvania’s ban on same-sex marriages was unconstitutional and would issue the licenses.

But in a win for Gov. Tom Corbett’s administration, Judge Dan Pellegrini said Hanes doesn’t have the authority to make that call. He ruled in favor of the Department of Health, which had asked the court to block Hanes.

“A clerk of courts has not been given the discretion to decide that a law whether the statute he or she is charged to enforce is a good idea or bad one, constitutional or not. Only courts have the power to make that decision,” Judge Pellegrini wrote.

Pa. banned same sex marriage in 1994, although the ban is not written into 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 further said that Hanes could not use his actions as an opening to pursue legal action against the same-sex marriage ban. He cited an ongoing lawsuit against the ban by the ACLU and other plaintiffs as an example of proper recourse.

Attorney General Kathleen Kane said she will not defend the ban in that case.

It’s an important legal victory for Corbett. His administration had argued – sometimes clunkily – that the case was about the rule of law and not the underlying issue of same-sex marriage.

Ultimately 174 same-sex couples applied for and received marriage licenses, although the licenses did not carry the force of law.

13 Responses

  1. Daniel-

    My point was that since Hanes is “judicial officer” (and that was news to me as well), there was a reasonable legal argument that he could interpret the US Supreme court decision as an indication that the ban was unconstitutional. Scalia himself, in his dissent, drew the same conclusion, that the majority’s opinion was tantamount to declaring the bans unconstitutional.

    Also, Hanes’ didn’t act in a vacuum, and received legal advice/arguments to support his decision.

    While the court ruled against him, his interpretation was still “reasonable”, despite not winning the day.

  2. David,

    I understand that you, like myself and millions of other Pennsylvanians, dislike this law and doubt its constitutionality (although “clearly unconstitutional” is a naive overstatement) however, the real issue here was whether Hanes has the authority to ignore the law because he believes it is unconstitutional (“to determine it’s constitutionality”, as he saw it), and the court clearly said he did not have that authority. When I spoke of judicial oversight in my first comment I wasn’t trying to say Hanes has no judicial power (though I’ll admit, before reading the opinion I wouldn’t have referred to the ROW as a “judicial officer”…learn something everyday) but merely that the court determines the constitutionality of a law, not a him. For people who believe in the constitution and the rule of law they should champion this decision while simultaneously supporting the ACLU challenge currently in court. That’s how the system works best. Otherwise it’s chaos

    And as far as the civil rights activists analogy, that is misguided as well. The sit ins were done by private citizens executing civil disobedience. They weren’t elected officials who swore to uphold the laws they opposed. There is a qualitative difference between the course of action they took and the course of action Hanes took. Whether you agree with Hanes sentiments about the law (which I do) he was in dereliction of his duty and its was inappropriate and the court rightfully stepped in.

  3. Denny Bonavita-
    Opposing unfair (and clearly unconstitutional) civil rights issues is NOT the same as driving 100 MPH. That is just a bad analogy as gay marriage doesn’t hurt anyone, but dangerous driving does.

    Disobedience of restrictive laws against civil rights is extremely common. Think about blacks sitting at a “whites only” lunch counter, or refusing to sit at the back of the bus.

    This case here was about the limits of Register of Wills which does have some judicial authority.

  4. Casey, I’m glad you won’t live here any longer. Your insistence that you can impose YOUR beliefs to override any law is frightening. So suppose YOU decide the speed limit should be 100 MPH. Who dies to pay for your egotism? Good riddance to an anarchist. I don’t think the current law is unconstitutional. I just think it’s a bad law, like the Blue Laws, and the time has come to change it — legally, not at the insistence of “I’m entitled” crybabies.

  5. Casey – I’m not LGBT but am certainly and advocate of equal rights for them. However, as I was pointing I simply agree with the judge that the Register of Wills cannot and should not ignore the law. The judge admonished him to use the avenue the ACLU is using (i.e. file suit challenging the law). As I said before, I think the law is unconstitutional and even if it isn’t, it’s just bad policy. But I don’t like the idea of elected officials deciding that its their prerogative to ignore the law because they disagree with it. By taking that stand, to uphold the procedure and rule of law, Pennsylvania strengthens itself, not weakens. Yes, it’s cold comfort to those who are being denied rights for the time being, but society has rules.

    As for your hatred of Pennsylvania, I just don’t see my state that way. I grew up in Delaware County and while its a republican county it’s by no means dyed in the wool conservative. Some of the state, yea. But it’s a big state with lots of different people woth lots of different interests. I get frustrated with snails pace of progress at times but that’s not necessarily the people. Polls show a majority of Pennsylvanias favor gay marriage, however the legislature is in gridlock over it. Look around the country, that doesn’t make PA unique. And blanket statements arguing that, with the exception of Philadelphia, PA is an awful place seems to come with little merit.

    But hey, if you truly hate it there are multiple bridges and highways (funded by that public works money you love) that will gladly take you to more progressive Mecca like New Jersey. Good riddance and there’s no need to come back

  6. @Daniel – PS, I don’t know if you’re LGBT or not, but perhaps you’d feel differently if you were the one whose rights weren’t recognized and who lacked even the most basic of legal protections. I, for the life of me, cannot imagine why anyone would lower their personal standards to the point where they could tolerate of accept living in this outermost circle of hell. As a rather well known fire victim might say, ain’t nobody got time for that.

  7. Daniel, you can change laws but you can’t change the culture or the people. PA is just a backward place. If it weren’t for Philadelphia, we’d be the Alabama of the north. The question of marriage equality should have been settled already, but instead, PA is still years behind the times, in last place in the northeast, like it always is. I don’t care what the case was made to be about: the fact is that Hanes issuing marriage licenses to same-sex couples should not have been an issue nor at odds with state law in the first place. From gay rights to health care to education to marijuana laws to blue laws… Pennsylvania is simply the worst state in the union – not merely because of the laws it has on the books but because of the population it has, as well. From the religous fundamentalists to the anti-government’ers to the NIMBY attitude to the fact that most of the state’s people, pardon for Philly, are resistant to any sort of positive change of any kind. It’s the land that time forgot. In some places, people look at public projects and want to spend the most they can to get a good product/service in return for that investment. Here, if that public service even sees the light of day at all, people complain about money, want to spend the least amount on it, getting a horrible product/service in return, and then advocate privatizing it, calling the entire endeavor a failure. Some places ask why they aren’t spending enough money on public services, Pennsylvania asks why it’s funded in the first place.

    Before someone tells me that if I don’t like it, I should move, I’m ten steps ahead of you and that process is nearing completion. You can *have* Pennsylvania. This place is rotten, pardon for small pockets of livable places and even then, those places are wonderful to visit, but I don’t know who in their right mind wound voluntarily reside there. It’s right-wing, redneck and conservative heaven and I’ve frankly had enough of it.

    Peace out, Pennsyltucky. Won’t miss you.

  8. Daniel-

    One of the points in the case was that Hanes is a judicial officer and what flexibility he had in interpreting the law. Also, there was a jurisdictional question as to whether this should be heard before a different court, due to Hanes’ status.

    So, to claim that there was no judicial oversight is not quite true, since Hanes was engaging in judicial oversight. The court’s ruling was merely that Hanes powers didn’t extend that far.

    Corbett’s team went out of its way to avoid a ruling on constitutionality of the law, since they are already fighting that battle with ACLU and the merits are with the ACLU.

  9. Hey Casey, “Worst State in the Union” is a bit much, I’d say, wouldn’t you? I think the law is wrong and likely unconstitutional but there are procedures and rules that we must abide by. I hardly think placing the power to ignore the law in the hands of a low level government official without any judicial oversight qualifies PA for your dubious honor.

  10. Actually, I wouldn’t be so quick to call this a win for Corbett.

    When the gay marriage ban gets ruled unconstitutional in the ACLU case, then all the conservative Register-of-Wills are going to have to perform same-sex marriages and won’t be able to refuse them a license.

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