Court outlines 5 topics to be debated in same-sex marriage case

The Commonwealth Court has outlined five arguments that will be heard in the same-sex marriage hearing Sept. 4.

Those topics include whether the Commonwealth Court is the proper jurisdiction; whether the Department of Health has standing to sue; and whether the "constitutionality of the act sought to be enforced can be raised as a defense."

The full order is posted here: Pennsylvania Commonwealth Court.

State attorneys have said constitutionality should not be discussed because the state's Marriage Law expressly prohibits same-sex marriage.  Attorneys for Montgomery County Register of Wills D. Bruce Hanes are seeking to use constitutionality as part of their defense. 

Notably, the order does not say that such a defense will be heard on Sept. 4 -- rather, the attorneys will argue whether such a discussion is appropriate in this court at this time, and then the judge would decide to allow it or not. 

The court has not yet indicated whether it will accept a petition to intervene from 32 same-sex couples.  Alexander Bilus, a co-counsel for the couples, said they will file a motion today asking for expedited consideration.  The court could approve or deny the petition outright, or schedule a hearing before Sept. 4 to determine whether they will be allowed to participate.

If the court determines that the Health Department does not have standing to sue on its own, the judge would hear arguments about Attorney General Kathleen Kane's refusal to defend the state's Defense of Marriage Act, and what implications that may have on this case.  

The Montgomery County solicitor's office would not comment on the court order.