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Judge rules clerk must stop issuing same-sex marriage licenses

Updated: Thursday, September 12 2013, 05:49 PM CDT
Reported by: Kyle Rogers

HARRISBURG -- A Pennsylvania judge has put a stop to a Montgomery County clerk issuing marriage licenses to same-sex couples.

Just yesterday, D. Bruce Hanes issued four more licenses to same-sex couples bringing the total to 174 licenses issued this summer. The state’s Health Department took Hanes to court after he began issuing the marriage licenses in July, which was after the U.S. Supreme Court threw out portions of the federal Defense of Marriage Act.

State Attorney General Kathleen Kane called ban on same-sex marriage in Pennsylvania unconstitutional.

Commonwealth Court Judge Dan Pellegrini issued an order on Thursday saying it was a clear violation of Hanes' legal authority to issue same-sex marriage licenses. The order added that Hanes did not have the power to decide on his own whether the same-sex marriage ban violates the state constitution. In Pennsylvania, the state constitution defines marriage as a union of a man and a woman. However, Hanes admitted to issuing the licenses to the same-sex couples saying he wants to be on the right side of the history. 

“In this case, a clerk of courts has not been given the discretion to decide that a law whether that statute he or she is charged to enforce is a good idea or a bad one, constitutionally or not. Only the courts have the power to make the decision,” wrote Pelligrini as part of his 37-page order in the case between Hanes and the Department of Health. 

“What the court said is, you didn’t have the legal right to give out. What you give out is illegal,” said local attorney Corky Goldstein.

Goldstein says at this point, it appears same-sex couples who have received a license in Montgomery County are in “limbo,” and most likely that marriage document is void. In the ruling, the judge wrote that those same-sex couple married legally in other states that do recognize same-sex marriage would not be recognized within Pennsylvania. 

“The issue is that local officials, no matter what issue you’re talking about, don’t have the ability to pick and choose what laws to uphold,” said Nils Frederickson, a spokesman for the governor’s General Counsel James Schultz. 

In a response shortly after the order was released, Hanes wrote he is disappointed with the judge’s ruling. 

“Several weeks ago when I made the decision to begin issuing marriage licenses to same sex couples, I said I believed I was coming down on the right side of history. After having issued 174 marriage licenses since then and having talked with many of those couples, I am more convinced today that I am on the right side of history,” said Hanes. 

Hanes said he’ll follow the judge’s ruling, but would consider an appeal. 
“Certainly it’s disappointing, because it’s just another example of how we have to wait to get equality in our community,” said Louie Marven, executive director for the LGBT center in Harrisburg. “It’s not unexpected.”

However, Goldstein says that this issue was strictly over the issue of a local official’s powers and the future of gay marriage would play out in another case. 

“The impact on the future of gay marriage or not will be decided in some other venue,” Goldstein said. 

--The Associated Press contributed to this report 
Judge rules clerk must stop issuing same-sex marriage licenses

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