Same-sex marriage: Pa. judge orders clerk to stop issuing licenses to couples

More than 100 couples wed in Pennsylvania after receiving licenses from a county clerk who declared, after the Supreme Court DOMA ruling, that the state ban on same-sex marriage was unconstitutional. Only a court can make that ruling, the judge said.

By , Staff writer

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    Ellen Toplin, right, and Charlene Kurland show their new marriage license at a Montgomery County office that was issued despite a state law banning such unions, in Norristown, Pa., in July. Commonwealth Court Judge Dan Pellegrini Thursday ordered Montgomery County Register of Wills D. Bruce Hanes to stop issuing marriage licenses to same-sex couples. It was not immediately clear what the decision would mean to those who have already received a license.
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Marriage licenses will no longer be given out to same-sex couples in Pennsylvania, a state judge has ruled, putting into limbo the legal status of more than 100 couples who married recently despite a long-standing ban on same-sex marriage in the state.

Pennsylvania Commonwealth Court Judge Dan Pellegrini ordered Montgomery County Register of Wills D. Bruce Hanes on Thursday to stop issuing the licenses, which 174 couples received since July 31.

Judge Pellegrini ruled that Mr. Hanes did not have the power to violate the state law defining marriage as between a man and a woman, which has been in place since 1996. Pennsylvania is one of 37 states that ban, or do not recognize same-sex marriage.

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“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 bad one, constitutional or not. Only the courts have the power to make that decision," Pellegrini wrote.

In June the US Supreme Court ruled that the federal Defense of Marriage Act (DOMA) was unconstitutional, saying Congress cannot treat same-sex couples differently than it does opposite-sex couples.

The ruling primarily applied to same-sex couples living in states where gay marriage is legal in allowing them all the federal benefits of traditional couples.

But the language of the majority opinion gave new momentum to legal challenges to state restrictions on same sex marriages, including in Pennsylvania.

In July, Mr. Hanes said that the state law on same-sex marriage was unconstitutional and therefore he had no obligation to enforce it. Following the Thursday ruling, Hanes said he will comply and no longer issue licenses to same-sex couples but is considering an appeal to the state Supreme Court.

The Pennsylvania Health Department, operating under Gov. Tom Corbett (R) took Hanes to court to stop his actions. General counsel for the Corbett administration, James Schultz, praised the Thursday ruling.

“The key question in this case has been whether any local official, anywhere in Pennsylvania, has the ability to decide which laws to uphold and which laws to reject based on their own personal legal opinion,” Mr. Schultz said in a statement.

However, advocates for same-sex marriage are interpreting the ruling differently. They argue that Pellegrini merely made a ruling based on procedure, and not on the constitutional status of same-sex marriage. He also failed to declare the marital status of the 118 license holders who wed since late July.

“It said nothing about couples already married, which is at least a victory for those couples and for marriage equality in Pennsylvania,” said State Sen. Daylin Leach (D), a supporter of Hanes’ actions.

John Dinan, a professor of politics and international affairs at Wake Forest University in Winston-Salem, N.C., says that it is “not clear” whether the couples who wed after receiving their licenses are indeed legally married in the state.

“On the face of things, that statute precludes the marriages that were celebrated (recently), but from a legal standpoint, one would have to bring a suit to secure a judgment, but it’s not certain who would bring that,” Professor Dinan says.

There are already lawsuits underway in both state and federal court challenging the Pennsylvania ban. Last week, a lesbian couple filed a lawsuit in state court and the American Civil Liberties Union (ACLU) filed a similar suit in federal court in July. Both cases are pending.

Expected to bolster both cases is the announcement in July by the state Attorney General Kathleen Kane that she will not defend the state in the ACLU challenge because she believed the ban is “wholly unconstitutional.”

Pennsylvania is one of a handful of states targeted by Freedom to Marry, a gay-rights group based in Washington that is spending more than $6 million to push same-sex marriage by 2016.

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