The state has filed a lawsuit against a Montgomery County official for issuing marriage licenses to same-sex couples.
Last week, Bruce Hanes, the register of wills, began granting licenses at the county courthouse.
The lawsuit, filed this morning by the state Department of Health's chief counsel, asks that the court immediately force Hanes to "comply with the [Pennsylvania] Marriage Law and to direct the Clerk to immediately cease and desist issuing marriage licenses to same-sex couples." The Health Department filed the suit because it processes and tracks marriage records for the state.
"Compliance with Pennsylvania law by its public officials is a mandatory obligation," the suit states. "Ours is a government of laws, not one of public officials exercising their will as they believe the law should be or will be."
Hanes, who has issued 31 marriage licenses to same-sex couples through Monday, will not stop issuing licenses, according to a statement from the Montgomery County solicitor.
"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," county Solicitor Ray McGarry said. "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."
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 today 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."