More than two-dozen same-sex couples who got marriage licenses in Montgomery County are asking to intervene in the case filed by the state against the county's clerk of the Orphans' Court, who issued the licenses.
If the Commonwealth Court doesn't respond to the petition within the next few days, they will ask for expedited review, said Robert C. Heim, a partner at Dechert who is representing the couples.
Both the intervenors and D. Bruce Hanes, the clerk who issued the licenses and the respondent in the case, argued that the Commonwealth Court is the wrong forum and the case should be heard by Pennsylvania's Supreme Court. On the same day the intervenors filed their petition — on Monday — the Commonwealth Court scheduled arguments in the case. They are set to be heard September 4 in Harrisburg. Heim said he hopes to take part.
The potential for this case, in which the state seeks to stop Hanes from issuing the licenses to same-sex couples through an action in mandamus, to have an impact on the case brought by the American Civil Liberties Union on behalf of same-sex couples in Pennsylvania challenging the state's ban on gay marriage "remains to be seen," Heim said.
It depends largely on how broadly, or how narrowly, the Commonwealth Court considers the case, he said. If the state court considers the constitutionality of the state's law, its ruling could bear heavily on the federal case, he said.
However, Mark Aronchick, of Hangley Aronchick Segal Pudlin & Schiller, who is working on the federal case with the ACLU, saw it differently.
"Federal courts are there to adjudicate federal claims," he said, and their case addresses the federal constitutional issues squarely — it was brought under the due process and equal protection clauses of the 14th Amendment—- and seeks to develop a full record.
When that case was filed last month, court watchers indicated that the ACLU's suit might be heading toward the high court.
"I strongly believe that the [U.S.] Supreme Court will take up another case to address the issue left open in Perry," Aronchick said at the time, adding that "no one has a crystal ball," but it will be likely to take on a case similar to this one.
He minimized the potential for impact from the Montgomery County case, saying that it and other cases across the country contribute to the larger public opinion, but the federal courts and federal judges focus on the facts developed in the record before them and the arguments made in their courtrooms.
If the state court declares Pennsylvania's law unconstitutional, it's hard to see how it wouldn't affect the federal case, said John Culhane, a professor at Widener University School of Law who studies same-sex marriage issues.
Although the federal suit presents the issues in clear form, the state action is on a faster track, he said, so it may well end up affecting the federal case.
Although the U.S. Supreme Court's landmark decision in U.S. v. Windsor is about the federal Defense of Marriage Act, the language is sufficiently broad to stretch to cover state laws banning gay marriage, Culhane said, explaining that it's not a surprise that state suits started cropping up in the wake of Windsor.
So, he said, cases like the one in Montco might not be as neat and direct as the attacks on marriage bans like the one in the Middle District of Pennsylvania, but they're not a surprising consequence of Windsor.
Also on Monday, Hanes submitted his response to the state in which he argues first, that the Pennsylvania Supreme Court has jurisdiction over the case because he is a judicial officer of a lower court; and second, that the Department of Health lacks standing since only the attorney general, the district attorney for Montgomery County, or a private citizen with a specific interest can bring a mandamus action.
The department is represented by its own legal office, which is an extension of the governor's Office of General Counsel.
Pennsylvania Attorney General Kathleen Kane took a very public stance deciding not to defend the state's marriage law when the ACLU filed its challenge last month. She tossed the defense of the law to the OGC, which caused fervent disagreement between the state's two major legal divisions — the Office of Attorney General and the Office of General Counsel, which publicly rebuked her stance.
Nils Frederiksen, spokesman for the OGC, returned a call for comment made to the Department of Health and said that it was normal procedure for the department to be represented by its own attorneys in cases like this. The lawyers in that office are actually OGC lawyers, as are the lawyers in all 34 agencies under the governor's purview, he said.
"DOH lawyers are OGC lawyers," Frederiksen said. "We are one and the same," he said.
The state is currently reviewing the petition from the intervenors, he said.
"This is a watershed moment in history for same-sex couples, and equality, throughout the United States and particularly in Pennsylvania," the potential intervenors argued, referring to recent U.S. Supreme Court precedent and the suit filed by the ACLU on behalf of same-sex couples in Pennsylvania challenging the state's marriage law.
"Following the Supreme Court's landmark vindication two months ago of the rights for same-sex couples in United States v. Windsor, elected officials in Pennsylvania like Attorney General Kathleen Kane and respondent Hanes have recognized that it is similarly unconstitutional for Pennsylvania to prevent a same-sex couple in a loving, committed relationship from entering into a marriage," they said.