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State Sues to Stop Montco Same-Sex Marriage Licenses

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Montgomery County

The Corbett Administration has made it’s first move to stop the issuing of same-sex marriage licenses by Montgomery County. The issue first arose last week when Montco Register of Wills Bruce Hanes announced that he would be issuing licenses to same-sex couples, as he felt Pennsylvania’s law against the practice was unconstitutional.

As first reported by the Associated Press, the state’s Health Department filed the lawsuit with the Commonwealth Court, asking the Court to prevent Hanes’ actions as they violate state law.

After Hanes’ initial announcement, a spokesman for Governor Corbett’s administration denounced the decision.

“Individual elected officials cannot pick and choose which laws to enforce,” said Nils Hagen-Frederiksen in a released statement. “All officials are constitutionally required to administer and enforce the laws that are enacted by the Legislature. Only the courts have the power to declare a law to be unconstitutional and to suspend its effects.”

Pennsylvania outlawed gay marriage in 1996 with the state’s Defense of Marriage Act. PA, however, is one of the few states where same-sex marriage is illegal yet not in violation of the state’s constitution.

The licenses issued by Hanes carry little more than symbolic weight; most legal benefits from marriage are conferred by the state and federal government, which do not presently recognize the unions.

Earlier this month, the ACLU filed a lawsuit on behalf of ten same-sex couples challenging the law as violating the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.

12 Responses

  1. “Reasonable”-
    1) I’m not giving legal advice, I’m giving analysis and prediction based upon historical precedent, current trends, and the consistent use of Due Process and Equal Protection in resolving these cases.

    2) The only reason it’s not “open and shut” is that there are still plenty of ignorant/bigoted judges like Scalia on the bench who will ignore Constitutional precedent and rule with arguments contrary to Loving v Virginia if it came before them.

    3) It’s plain as day that if you are professionally qualified in legal matters, you should request a refund. (If you went to Widener, no need to explain further)

    4) There is not a single reason that “traditional marriage” advocates have put forth that is not based in bigotry or discrimination. If you are referring to any claims about children being better off, then you need another example. That particular argument falls apart for senior or infertile couples, and flies in the face of decades of research that has show same sex couples to be equally good parents. Separate-but-equal arguments fail to past muster as well.

    But if you do have a “legitimate” argument they CAN make in mind, please produce it, so I can dismantle it and demonstrate its inherent falseness. Unless “traditional marriage” advocates can demonstrate an actual harm to society from gay marriage to overcome the benefits to gay couples having equal rights, they have no actual legal basis.

    Laws banning blood relatives from marrying have a biological basis due to the resulting genetic problems of offspring. But, I’ve got no objection for related couples unable to bear children. Inbreeding is the primary argument against incest. With eventual advances in genetic engineering to remove defective genes, the inbreeding problem may get solved as well. However, as people are born black/white or born gay/straight, any push for incestuous rights is going to have a tough slog.

    I bring up the inbreeding, because it’s a legitimate reason to restrict some marriages capable of child bearing.

    But also, once gay marriage passes, there would be no legitimate reason to restrict the marriage same-sex couples who are closely blood related. Gay siblings and cousins can’t produce offspring, so the inbreeding prohibition doesn’t apply.

    Sometimes, I do wonder if some of my debate opponents are products of inbreeding. 🙂

  2. David – I honestly don’t know where even to start.  Your jokes and ad hominem attacks aside, it’s plain as day that 1) you’re not professionally qualified to give authoritative legal analyses, and 2) your intense political loyalties prevent you from approaching this issue with even a shred of objectivity.  When the expert professionals who will argue your position in court (privately) don’t see this as a simple, open & shut case, that alone should cause you to give pause and stop talking out of your backside.  But it won’t, because as PoliticsPA’s resident blowhard, you fancy yourself THE intellectual authority on macroeconomic policy, marriage rights, health care, the life and times of Joe Sestak, and apparently anything else under the sun.

    To any other readers, notwithstanding the excerpt that the next Oliver Wendell Holmes copied & pasted from Wikipedia, state DOMA laws are NOT logically equivalent to an inter-racial marriage ban.  In 1967, Virginia could put forth no credible argument that its law served to do anything but prop up a segregationist regime through “invidious racial discrimination.”  Traditional marriage advocates, on the other hand, CAN point to many factors unrelated to bigotry and discrimination in support of their position.  Not all do, but they CAN – and that’s what’s important.

    Justice Kennedy held that the federal DOMA law was rooted – at least enough to strike it down – in imposing inequality.  This conclusion was more easily reached at the federal level because regulating marriage wasn’t traditionally within the federal government’s realm.  At the local level, however, states have a long tradition of regulating marriage in a variety of ways (e.g., New Yorkers can marry first cousins, in Nevada it’s a criminal offense).  Unlike in the Virginia inter-racial marriage case, individual states CAN make legitimate arguments for preserving traditional marriage.  It is my legal opinion that a court is more likely to buy those arguments instead of finding “invidious discrimination” at the state level.  And absent that finding, gay marriage advocates won’t get the heightened standard of judicial scrutiny that is almost certainly needed to establish same-sex marriage as a constitutionally protected right.

  3. Reasonable Rep-

    If you don’t understand that these DOMA laws are equivalent to the interracial bans (and supported by nothing other than pure ignorance and bigotry), then you should get a refund on whatever Cracker-Jack gave you “legal training” as a prize.

    This quote from Justice Warren’s opinion applies to gay couples today as it did to interracial back then:

    “Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”

    Breaking the interracial ban came about as enough people realized/accepted that blacks were genuine human beings with equal rights, and not some degenerate subspecies.

    A few decades ago, gays were considered perverts and pedophiles, and gay sex was an actual criminal offense. While gay sex was decriminalized about a decade ago, the country is only now catching up with realizing that gay people are genuine human beings with equal rights, and not a bunch of sexual degenerates.

    The gay marriage bans will be found to be violations of Due Process and Equal Protection as were the interracial bans.

    Your “legal opinion” that marriage is not a legal right is in direct conflict with the precedent set in Loving v. Virginia, and the key lines from Warren’s opinion that I provided for your convenience.

    So, while I’m glad that you support gay marriage as a public policy, I scoff at your “legal expertise” that cannot see the obvious legal issues.

    Since it has been established that gay people marrying doesn’t harm society (and that gay people aren’t a threat), but that they are harmed by being unequally deprived, the Supreme Court (and any court comprehending the Constitution) has no recourse but to void these bans.

    The only courts that would support the bans, are ones composed of bigoted jackasses like Scalia, who think of homosexuality as some kind of disease or mental aberration.

    I think Scalia’s vote to deny standing was an attempt on his part to delay having the actual issue before the court, because he thought Prop 8 would lose and it would lead to overturning all the states DOMA laws. So, he dodged a bullet that would have created a new Loving v. Virginia for gays nationwide.

    Let’s not forget, Scalia was one of the three dissenters in the Lawrence v. Texas (2003) decision, which banned anti-sodomy laws. So, a mere 10 years ago, Scalia couldn’t find a single Constitutional argument to stop states from enforcing anti-sodomy laws on consenting gay adults.

    So by “sacrificing” his anti-gay brethren in California, he bought time for continued bigotry in the other states with DOMA laws. So, while the Court is not “itching” to overturn all DOMA laws, Scalia knows he doesn’t have the votes to keep state DOMAs.

    Anyway, “Reasonable”, you should stay anonymous and not embarrass yourself anymore with claims of legal prowess.

  4. David – I know you’re the biggest blowhard on this website, but if you can manage, please utilize this opportunity to do a little more reading and a little less typing. It will take your mind off Joe Sestak for 5 minutes and – who knows – maybe you’ll even learn something.

    Contrary to your insinuations, I neither favor a ban on gay marriage nor take solace in the Supreme Court’s DOMA ruling. I am, however, legally trained and can separate political issues from legal ones – an attribute that most cheerleaders on both the left and the right seem to lack (see Trayvon Martin case).

    In my opinion, once you get past the inflammatory partisanship on both sides, at the day’s end, there are very intelligent advocates and opponents of gay marriage who can make their arguments with compelling, well-reasoned points. For example…

    For me, as a matter of public policy, I fall on the side of granting marriage licenses to gay couples. As stated, I think both sides make compelling arguments. All facts considered, though, I am sufficiently convinced that, in 2013, the societal positives of expanding marriage outweigh those of preserving traditional marriage. It’s my opinion, and it’s an opinion based on public policy, not constitutional law.

    Without going into extensive detail, there is a long history of Supreme Court jurisprudence establishing a process for determining what is or is not a fundamental right under the Constitution. After going through this process, it is my legal opinion that marrying a person of the same-sex is not such a right that commands protection from the courts. 99% of people might believe in something like the minimum wage; that doesn’t make it a right guaranteed by the Constitution. Personally, I would like to see gay couples be able to marry in all states, but it should happen via the legislative branch, not the federal courts.

    Lastly, your equating this issue to the Virginia interracial marriage case is ridiculous for too many reasons to mention, though not quite as ridiculous as suggesting that a sitting Supreme Court justice would vote to uphold such a law. Speaking of Scalia, it’s funny you mention him, being that was HIS 5th vote that denied standing to the Prop 8 plaintiffs, a decision that apparently leads you to believe the Court’s itching to recognize gay marriage as a fundamental right. Me? I wouldn’t count on Scalia, but what do I know…

  5. Do the states have the right to define marriage as between two white people or two black people, but outlaw white-black marriage?

    Umm…. not any more..

    However, Justices like Scalia would still (in 2013) uphold a state banning interracial marriage.

    The ruling was a clear and unequivocal signal against bans on gay marriage, but could not be explicit, because that wasn’t exactly the question before the court.

    The court also upheld the California court’s overturning of Prop 8, though they used the technicality of saying the proponents didn’t have standing.

    Either way, it’s pretty clear that if a state’s ban on gay marriage makes it to the Supreme court, the arguments for due process and equal protection will trump any state’s rights arguments, and the Supreme Court will overturn the ban. The legal reasoning by the majority will apply to that case as well. Bans on gay marriage will go the way of bans on interracial marriage.

    So, “reasonable rep”, any “gay marriage banning: fans out their taking solace in the court not directly overturning all DOMA laws, are just kidding themselves that they won’t when that case reaches the court.

  6. “The US Supreme Court left no doubt as to the constitutionality of DOMA, and the similar state statute has even less legal standing.”

    LOL…I can only wonder where some of you people come up with this stuff. Obviously everyone cannot receive legal training, but for Christ’s sake take off your political blinders for two seconds. The universally accepted takeaway from Kennedy’s opinion was that marriage is a local issue and to be left to the states. He painstakingly went out of his way to avoid endorsing or rejecting a gay couple’s fundamental right to marry.

  7. This is a travesty, but should not come as unexpected. Many Pennsylvanians are divided on this issue, however many want to stand on the right side of history. I can think of one person that did on August 28, 1963, although he was fighting a separate cause, he knew that suppression of an individual was wrong!

    If a man proposed to a woman and have his 4th marriage with her then they can go ahead with the backing of the state they reside. But if a man loves a man and would like to get married in the State of Pennsylvania, it is just wrong? It is against the law? Where is the common sense of that?

    **If someone is going to start quoting the bible at me, then they need to read it more carefully..

    You are not allowed to:
    Eat Pork
    Eat Shellfish
    Have a tattoo
    Allow a woman to speak in church

    and much much more. I am sure that everyone is perfect however and that they will tell me how I AM WRONG!

    However many individuals need to understand that this is not a religious issue, it is a civil rights issue!

    ** Please note I put the above statement about the bible in anticipation that someone will start to quarrel with another that this is a religious issue, it is not.

  8. BJ-
    My source wasn’t a “secret”. I just figured the name wouldn’t be well recognized.

    It was, Frank Custer, who I saw at a Montco Dems event. (I forget his title, but I think he may be communications director?). Anyway, I just asked him what the ratio of positive/negative feedback there was on the issue. He said the calls were running about 70% in favor and 30% against.

    The jurisdiction of the Health Dept (if it really has it) may stem from stuff like taking blood tests and first cousins/siblings not marrying and producing deformed children. Since, that stuff wouldn’t apply to gay couples, I think there involvement is a bit of a stretch, as it’s not really a Health issue.

    However, the Health Dept should actually been defending gay marriage on the basis of protecting patient rights in hospitals and medical decisions, by allowing them to have spouses. If the Health Dept has any mandate or guidelines for helping patients protect their health care rights, then there’s going to be even more political blow back against them for supporting DOMA and may even constitute a conflict of interest.

    I’ll leave that argument for the lawyers to research.

  9. The Department of Health has standing, because PA’s domestic relations laws give it authority over marriage licenses…

  10. Correction, please: The Federal government DOES in fact recognize same-sex marriages.

    And contrary to numerous GOP talking points and idiot commenters, NO government official, from AG down to street cop, is required to enforce or defend illegal orders or laws. That is well-settled law. It’s not a matter of “picking and choosing,” it is a matter of carrying out one’s duties in a lawful manner. The US Supreme Court left no doubt as to the constitutionality of DOMA, and the similar state statute has even less legal standing.

    Speaking of Standing – this lawsuit can be thrown out on that basis alone. Since when does the Dept. of Health have standing on this issue??

  11. I love when David talks about his “sources.” That guy is at the point where not even the voices in his head will talk to him anymore.

  12. Yesterday, I heard from my sources in Montco that public sentiment was supporting/opposing them in a roughly 70/30 ratio.

    If Corbett and the GOP continue this assault on marriage rights and their pursuit of bigotry, they can expect a Democrat to win in 2014 with 70/30 ratio.

    Tom Corbett: keep shooting yourself in the foot. It’s your only gun policy that we support.

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