By Sunnivie Brydum
Originally published on Advocate.com September 12 2013 5:23 PM ET
A county clerk in the Philadephia suburbs doesn't have the legal authority to override the state's constitutional ban on marriage equality and therefore must stop issuing marriage licenses to same-sex couples, a state judge ruled today.
D. Bruce Hanes, the register of wills for Montgomery County, Pa., told the Associated Press he'll comply with the judge's order, though he's disappointed by the decision and is considering an appeal.
"In this case a clerk of courts has not been given the discretion to decide that a law … he or she is in charge to enforce is a good idea or a bad one, constitutional or not," wrote judge Dan Pellegrini, according to the AP. "Only the courts have the power to make that decision."
Republican governor Tom Corbett filed suit against the county clerk last month when Hanes began marrying same-sex couples, claiming the clerk, whose duties include issuing marriage licenses, did not have the legal authority to interpret the constitution. The brief filed by the governor's lawyers warned of possible "chaos" if marriage equality were allowed to prevail in the county and claimed the marriages between same-sex couples were no more legally valid than marriages between 12-year-olds.
A 1996 Pennsylvania law forbids same-sex marriage, while also prohibiting the state or its officials from legally recognizing same-sex marriages that took place in other jurisdictions.
In July, Hanes announced he would start issuing marriage licenses to same-sex couples as an act of conscience. At the time, he said he believed Pennsylvania's state Defense of Marriage Act was unconstitutional and that his decision to flout the law would put him "on the right side of history."
More than 170 same-sex couples have received marriage licenses through Hanes, according to the AP. Today's ruling did not address whether Pennsylvania will consider those couples legally married or not.
In early July the American Civil Liberties Union of Pennsylvania filed a lawsuit in federal court challenging the state's DOMA on behalf of married gay and lesbian couples. The state's attorney general, Kathleen Kane, said she won't defend the antigay law in court, citing the landmark ruling from the U.S. Supreme Court that struck down a key section of the federal DOMA in June. Kane, a Democrat, said she "cannot ethically defend the constitutionality of Pennsylvania's version of DOMA. I believe it to be wholly unconstitutional."
The ACLU of Pennsylvania said today's ruling in state court just adds to the urgency of its federal litigation. "It's full-speed ahead with the ACLU lawsuit," attorney Vic Walczak told the AP.