The Montgomery County clerk who started issuing marriage licenses to same-sex couples this summer and was ordered by the Commonwealth Court to stop in September has asked the Pennsylvania Supreme Court to reverse that order.

The Commonwealth Court had avoided the constitutional issues raised by the clerk, D. Bruce Hanes, after the Corbett administration filed a mandamus action to stop him from issuing the licenses.

Now Hanes, who wants the high court to effectively restore his discretion to issue marriage licenses to same-sex couples, argues that the Commonwealth Court order was fatally flawed in that it did not consider the constitutionality of the state’s Defense of Marriage Act.

The Commonwealth Court’s neglect of the constitutional arguments is an error that the state Supreme Court must fix, Hanes argued in the brief filed with the justices.

“The determination of whether or not Pennsylvania’s DOMA is unconstitutional is so inherently related to the claims against Hanes, that it must be addressed by this court,” according to the brief, which was referring to the state’s Defense of Marriage Act that was passed shortly after the federal DOMA and tracked that law’s language, including the definition of marriage as being between one man and one woman.

“Contrary to the Commonwealth Court’s view that the constitutional issue is an impermissible counterclaim, the constitutionality of Pennsylvania’s DOMA is at the very heart of the question of whether the department has a clear legal right to compel Hanes to enforce it,” according to the brief. The department that filed the mandamus action is the state’s Department of Health.

Because the suit was brought as a mandamus action, which doesn’t allow counterclaims, the constitutional arguments leveled by Hanes couldn’t be addressed, Commonwealth Court President Judge Dan Pellegrini had said in his September ruling that tipped against Hanes.

“Until a court has decided that an act is unconstitutional, Hanes must enforce the law as written, and it is not a defense to a mandamus action [that] the law may be unconstitutional,” Pellegrini had said.

In the brief, Hanes noted that Pellegrini had relied on a ruling from the Pennsylvania Supreme Court in 1890, Third School District of the City of Wilkes-Barre v. James, but cited two cases decided by the state Supreme Court in this century that allowed government officials, like Hanes, to raise the unconstitutionality of a statute as a defense.

“More generally, the courts have found that relief sought through mandamus will not be granted where the result would be contrary to public policy,” Hanes argued in the brief.

Pellegrini had also sided with the state on the issues of jurisdiction and standing—holding that his court had jurisdiction and that the department had standing. Hanes had argued that his status as an employee of the court system would propel the case directly to the Supreme Court, bypassing the Commonwealth Court, and that the health department didn’t have standing to bring the mandamus action.

He maintained those arguments in his brief to the Pennsylvania Supreme Court.

Only the state’s attorney general, a district attorney, or a private citizen who has a particular interest beyond the general public’s have standing to bring a mandamus action, Hanes argued, citing the Pennsylvania Supreme Court’s 1953 opinion in Dorris v. Lloyd.

“The Department of Health, however, is none of these things; therefore, it lacks standing to bring this mandamus action,” he said in the brief.

Pellegrini had found that the health department did have standing in its own right and, secondarily, he held that a letter dated a month after the action was filed from the Attorney General’s Office authorizing the department to bring the action was also sufficient to confer standing.

Also filed to the Pennsylvania Supreme Court was an amicus brief from 23 of the same-sex couples who were issued licenses by Hanes and had sought to intervene in the case when it was in the Commonwealth Court. Pellegrini had denied that motion as moot and several of the couples then filed their own separate suit in the Commonwealth Court challenging the legitimacy of the law itself.

Through their lawyer, Robert Heim of Dechert, the couples asked the Supreme Court to refrain from addressing the validity of those marriage licenses.

“The Commonwealth Court did not address their validity; therefore, this court should not either,” the amicus brief said. Referring to the other cases, pending in both state and federal courts, the couples’ brief said, “The validity of many of amicus couples’ marriage licenses currently is being litigated before the Commonwealth Court, and the constitutionality of the marriage law is being litigated before the Commonwealth Court and the federal courts. Amicus couples therefore respectfully urge the court not to address the validity of their licenses in this case.”

The couples also agreed with Hanes’ view that the court should consider the constitutionality of the law in this case.

Saranac Hale Spencer can be contacted at 215-557-2449 or sspencer@alm.com. Follow her on Twitter @SSpencerTLI.