Montgomery County to respond to Corbett lawsuit over same-sex marriage licenses

Gov. Corbett, after signing the 2013-14 state budget Saturday in Harrisburg. The legislature failed to enact any of Corbett's three big policy initiatives: mass transit funding, privatizing the sale of wine and hard liquor and changes to reduce the escalating cost of teachers' and state employees' pensions.

Montgomery County Solicitor Ray McGarry has already vowed to fight the Corbett administration's lawsuit to stop the county from issuing same-sex marriage licenses.

On Friday, he'll officially file the county's response to the state suit.

Bruce Hanes, the Montgomery County Register of Wills, has issued more than 30 licenses in the week since he began accepting same-sex applications last week. On Tuesday, Gov. Tom Corbett's Office of General Counsel sued to stop Hanes.

That same day, McGarry said the county would not stop the practice of issuing licenses to same-sex couples until they were ordered by a court.

"While it comes as no surprise that the Corbett Administration has filed an action seeking to enjoin marriage equality in Montgomery County, the petition filed today in Commonwealth Court by the state Department of Health has serious flaws," McGarry said in a statement. "Montgomery County will be filing a response shortly. In the meantime, the Register of Wills office will continue to issue marriage licenses to same-sex couples."

After releasing the legal response to the state's lawsuit, he will discuss the controversial issue with reporters, a county spokesman said Thursday.

Hanes is not the only elected official to come out against Pennsylvania's state law mandating marriage as a union strictly between a man and a woman.

State Attorney General Kathleen Kane said earlier in July that she would not defend the state against lawsuits calling into question the legality of Pennsylvania's Marriage Act. The commonwealth is one of 35 states that prohibits same-sex marriage.

Gov. Tom Corbett's administration is expected to defend the state's one man-one woman marriage law in court following the U.S. Supreme Court's recent Defense of Marriage Act (DOMA) ruling that struck down several provisions of the law. DOMA is the federal law that defines marriage as between a man and a woman.

The chief counsel for the Office of General Counsel also sent a letter Tuesday to Kane's office, stating in part, "The Attorney General's unprecedented public adjudication of the state's alleged unconstitutionality was an improper usurpation of the role of the courts, which at a minimum, causes confusion among those charged with administering the law."

The lawsuit against Hanes and the letter to Kane's office signal the first blows by the Corbett administration to subdue what could become growing challenges to Pennsylvania's version of the federal DOMA law. The Health Department lawsuit could become an important precedent to determine whether public officials have the right to interpret the legality of the state's Marriage Law on their own.

Hanes said last week in announcing he would issue licenses to same-sex couples that he "decided to come down on the right side of history and the law."

Citing equal protection clauses in Article 1 of the state constitution, Hanes said, "Those are provisions of the Pennsylvania Constitution which I think are diametrically opposed to the marriage law."

"Now, what am I to do? I took an oath," Hanes said.

The Health Department lawsuit claims he is not only derelict in his duty to uphold state and local laws, but also is misleading those couples he issued licenses to.

"It appears that same-sex couples are proceeding with the marriage ceremonies that are not permitted by Pennsylvania law, marriage certificates are being illegally filed, and the same-sex couples are left to believe erroneously that they have entered into a valid marriage," the suit said.

At least one couple that received a marriage license from Hanes last week wed over the weekend. The lawsuit also called into question Kane's public declaration not to defend the state against lawsuits stemming from the Marriage Law.

"The Attorney General's public declaration that the Marriage Law is unconstitutional is not based on the holding of any court that has binding effect in Pennsylvania," the suit claims. "In other words, the Attorney General's individual opinion respecting the constitutionality of the Marriage Law is of no legal consequence to the Clerk or any other public official or agency."

Contact Brian X. McCrone at 215-854-2267 or Follow @brianxmccrone on Twitter.

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