Montco files response to Health Dept.'s suit to stop same-sex marriage licenses

Argues that state law barring gay marriage is unconstitutional

Montgomery County Register of Wills Bruce Hanes in his Norristown office July 31, 2013, the day after the state Department of Health asked Commonwealth Court to issue an injunction to stop him from issuing any more licenses or accepting marriage certificates from gay and lesbian couples. He is the man who hopes to be paving the way for same-sex marriage in Pennsylvania. ( TOM GRALISH / Staff Photographer )

Montgomery County has filed another response to the state Health Department's lawsuit seeking to block the county's register of wills from issuing marriage licenses to same-sex couples.

The filing is the latest legal maneuver in the high-profile case and reiterates several arguments the county made in its initial response to the suit. Montgomery also addresses points the Health Department made when it amended its complaint earlier this month.

In the response filed in Commonwealth Court today, the county argues that Pennsylvania's 1996 Marriage Law, which defines marriage as a union between a a man and a woman, is "wholly unconstitutional."

The county also challenges the Health Department's standing to sue and says the case should be dismissed or transferred to the state Supreme Court because the Commonwealth Court doesn't have jurisdiction.

The Health Department filed the suit in late July, arguing arguing that Register of Wills D. Bruce Hanes has been "repeatedly, continuously and notoriously acting in clear derogation" of the state marriage law by issuing licenses to same-sex couples, which he began doing earlier that month.

The response argues that law violates the state and federal constitutions, saying the "statute is nothing more than an outgrowth" of the federal Defense of Marriage Act. In June, the U.S. Supreme Court ruled that a DOMA provision denying federal benefits to married same-sex couples was unconstitutional.

The response also calls the state marriage law "arbitrary and suspect."

The marriage law's constitutionality is at the heart of the suit against the county, the response says.

"Ultimately, the determination of whether or not the Pennsylvania DOMA statute is unconstitutional is so inherently related to the claims against Respondent, that it must be addressed before a mandamus can be granted against Respondent," the filing says.

The state argues that Hanes should be charged with misdemeanors for "neglect or refusal to perform duties." That's another issue that hinges on the constitutionality of Pennsylvania's marriage law, the filing says.

The response also notes that the state hasn't demanded that Hanes to stop issuing the licenses. In their amended complaint, the state's attorneys compared the Montgomery County licenses to the same-sex marriages performed by the mayor of San Francisco, which were nullified after the California Supreme Court ruled in 2004 that the mayor had no right to defy state law.

In that case, Montgomery County says, the California attorney general asked the mayor to stop issuing the licenses.

Such a demand "is an integral step in the process showing that a Petitioner has availed itself of all legal options," the filing says.

The court has agreed to an expedited review of the case.

Contact Emily Babay at 215-854-2153 or Follow @emilybabay on Twitter.

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