Now in Legal Rebels:
Posted Sep 13, 2013 04:02 pm CDT
A Pennsylvania court has ordered a county clerk to stop issuing marriage licenses to same-sex couples.
Commonwealth Court President Judge Dan Pellegrini ruled Thursday that Montgomery County Register of Wills D. Bruce Hanes lacked the authority to ignore state law, which defines marriage as a contract between one man and one woman, according to multiple reports.
“A clerk of courts has not been given the discretion to decide…whether the statute he or she is charged to enforce is a good idea or a bad one, constitutional or not,” Pellegrini wrote in a 35-page opinion (PDF). “Only courts have the power to make that decision.
“Unless and until either the General Assembly repeals or suspends the marriage law provisions or a court of competent jurisdiction orders that the law is not to be obeyed and enforced, the marriage law in its entirety is to be obeyed and enforced by all commonwealth public officials,” he added.
Pellegrini also denied a request to intervene in the case by a group of same-sex couples who had received marriage licenses, who argued that the decision would affect the validity of their marriages. But the decision didn’t address the legality of those marriages.
Hanes told the Associated Press he was disappointed by the decision but would comply with it. He also said he thinks the 174 licenses he’s given out to same-sex couples are legal.
“I believe they are…but I can’t make that decision,” he said.
James Schultz, general counsel for Penn. Gov. Tom Corbett, applauded the ruling.
“The key question in this case has been whether any local official, anywhere in Pennsylvania, has the ability to decide which laws to enforce and which laws to reject based on their own personal legal opinion,” he said in a prepared statement.
Robert Heim, a lawyer for 32 of the same-sex couples who received marriage licenses from Hanes, said his clients would now have to decide whether to litigate the validity of those licenses “since Judge Pellegrini virtually invited it.”
Hanes began issuing marriage licenses to same-sex couples in July, about a month after the U.S. Supreme Court declared part of the Defense of Marriage Act unconstitutional. A week later, the state Department of Health filed suit to stop him.
A group of same-sex couples has already filed suit over the constitutionality of the state’s marriage law. A separate challenge to Pennsylvania’s ban on same-sex marriage is also pending in federal court. But ACLU of Pennsylvania attorney Vic Walczak said Pellegrini’s ruling would have no effect on that proceeding.