The Corbett administration has sued Montgomery County Register of Wills D. Bruce Hanes, seeking a court order to stop Hanes from issuing marriage licenses to same-sex couples in the county.
Pennsylvania Governor Tom Corbett is asking the Commonwealth Court for a writ of mandamus commanding Hanes to perform his duties under the Pennsylvania Marriage Law, which defines marriage as between a man and a woman.
"The clerk is repeatedly and continuously acting in clear derogation of the Marriage Law inasmuch as he is issuing marriage licenses to applicants of the same gender and accepting marriage certificates of those to whom he has issued marriage licenses indicating falsely that marriages between individuals of the same gender have been lawfully performed by a person authorized under the law to perform marriages," Corbett said in the lawsuit, filed by the Office of Legal Counsel for the Pennsylvania Department of Health.
Hanes began issuing marriage licenses to same-sex couples last week in light of the U.S. Supreme Court's June 26 ruling in United States v. Windsor finding the federal Defense of Marriage Act's definition of marriage as between a man and a woman unconstitutional. Pennsylvania's similar law, however, is still on the books. That hasn't stopped Hanes from issuing 34 marriage licenses to same-sex couples since last week. Some of those couples have already been married.
Joan Nagel, first deputy register of wills in the county, said the office was declining comment on the lawsuit based on the advice of counsel.
In the complaint, filed Tuesday morning, the Department of Health argues Hanes is interfering with the powers and responsibilities the Marriage Law assigns to the department. It said a writ of mandamus is the only remedy the department could pursue to effectively stop Hanes from continuing to violate the law. It is suing Hanes in his capacity as clerk of the Orphans' Court of Montgomery County.
The department noted the Marriage Law puts under the department's purview the creation of many forms relating to getting married in the state and requires those forms be uniformly used throughout the state's counties.
"In the administration of his responsibilities under the Marriage Law, the clerk has a solemn duty to perform in compliance with the dictates of the statute as written by the General Assembly; he has no authority to deviate," the department said in the complaint.
The Marriage Law at issue was initially enacted in 1990 and was amended in 1996 to include a definition of marriage as between one man and one woman. As part of those amendments, the law now specifically addresses same-sex marriages.
"'It is hereby declared to be the strong and longstanding public policy of this commonwealth that marriage shall be between one man and one woman,'" the law states, according to the complaint. "'A marriage between persons of the same sex which was entered into in another state or foreign jurisdiction, even if valid where entered into, shall be void in this commonwealth.'"
No court has declared this section, or others, of the law unconstitutional, the department argued in the complaint.
When Hanes announced he intended to give out marriage licenses to same-sex couples, he cited Pennsylvania Attorney General Kathleen Kane's July 11 press conference announcing she would not defend a recently filed challenge to the Marriage Law, which she said was unconstitutional given the Windsor decision.
The department said in the complaint that Kane has not issued any official opinion on the issue at the request of a state official or agency under the Commonwealth Attorneys Act. The department said Kane's individual opinion on the law's constitutionality is of no legal consequence to Hanes.
"Moreover, the attorney general's public declaration that the Marriage Law is unconstitutional is not based on the holding of any court that has binding effect in Pennsylvania," the department said in the complaint. "The case cited by the attorney general in her announcement — United States v. Windsor — in no way holds that a state law resembling Pennsylvania's Marriage Law violates the Constitution."
The department pointed out that same-sex couples are reportedly coming into Montgomery County from other counties to get a marriage license. Those couples and others from Montgomery County are proceeding with marriage ceremonies the department said in the complaint were "erroneously" believed to be valid. One consequence of Hanes' decision will be same-sex couples who falsely believe they are entitled to certain public and private benefits that are legally reserved for opposite-sex couples, the department said.
"There is no limit to the administrative and legal chaos that is likely to flow from the clerk's unlawful practice of issuing marriage licenses to those who are not permitted under Pennsylvania law to marry," the department said in the complaint.
Alison Taylor, chief counsel of the Department of Health, filed the lawsuit along with the department's senior counsel, Audrey Feinman Miner. A spokeswoman for the office said the complaint speaks for itself and declined to comment further.