State attorneys amend complaint over same-sex marriage

No judge has yet waded into the same-sex marriage fracas in Montgomery County, but in the meantime attorneys continue to volley.

A brief recap:  Montco register of wills began  issuing same-sex marriage licenses July 24.  The state Department of Health filed suit July 30 to force him to stop.  The county filed a response to the lawsuit August 2.  And on Monday, the DOH amended its original suit to respond to the county's response.  Phew, let's hope a judge steps in soon to untangle this mess.

Much of today's filing is legalese -- which court has jurisdiction, which department has the right to sue, etc.  Here are the highlights:

  • The county has argued that only the attorney general, the district attorney, or a private citizen had the right to sue Montco Register of Wills D. Bruce Hanes.  The DOH says it does have jurisdiction because Attorney General Kathleen Kane has refused to defend the state marriage law.

  • The state further asserts that Hanes, in refusing to perform a duty imposed upon him by an act of the Legislature, "may be guilty of a misdemeanor for each act of neglect or refusal."  This argument is being used by many critics of Hanes who want D.A. Risa Vetri Ferman to step in and charge him with those alleged misdemeanors (78 as of Monday).

  • Most interestingly (to me, anyway), the state attorneys added a reference to the Supreme Court of California, which ruled in 2004 that the Mayor of San Francisco had no right to defy state law even if he believed it to be unconstitutional.  The California Supreme Court did eventually find a same-sex marriage ban to be unconstitutional, but in the intervening years, the marriages performed by the mayor were nullified.  The same could very well happen here.

Here's what the state attorneys wrote, followed by their quotation from the 2004 decision Lockyer v. City and County of San Francisco:

The court in Lockyer explained -- compellingly and at great length -- why courts across the country are nearly unanimous in holding that an administrative official must follow the law until a court having jurisdiction over the official determines that the law is unconstitutional.

Though not binding on Pennsylvania courts, the powerful concluding words of the court in Lockyer should be heeded in this case for their universal and enduring wisdom in the preservation of fundamental separation of powers:

An executive official ... is free to criticize existing statutes, to advocate their amendment or repeal, and to voice an opinion as to their constitutionality or unconstitutionality. ... [H]owever, an executive official who is charged with the ministerial duty of enforcing a statute generally has an obligation to execute that duty in the absence of a judicial determination that the statute is unconstitutional, regardless of the official's personal view of the constitutionality of the statute.

...[T]he city has suggested that a contrary rule -- one under which a public official charged with a ministerial duty would be free to make up his or her own mind whether a statute is constitutional and whether it must be obeyed -- is necessary to protect the rights of minorities.  But history demonstrates that members of minority groups, as well as individuals who are unpopular or powerless, have the most to lose when the rule of law is abandoned -- even for what appears, to the person departing from the law, to be a just end. ... [G]ranting every public official the authority to disregard a ministerial statutory duty on the basis of the official's opinion that the statute is unconstitutional would be fundamentally inconsistent with our political system's commitment to John Adams's vision of a government where official action is determined not by the opinion of an individual officeholder -- but by the rule of law.  (See Lockyer v. City and County of San Francisco, 96 P.3d 459 (Cal. 2004).)