“A clerk of courts has not been given the discretion to decide that a law … he or she is charged to enforce is a good idea or bad one, constitutional or not,” Pennsylvania Commonwealth Court President Judge Dan Pellegrini wrote in the opinion released today. “Only courts have the power to make that decision.”
As previously reported, the Pennsylvania Health Department, which oversees marriages in the Commonwealth, says that following the Supreme Court ruling striking down a key part of the Defense of Marriage Act (DOMA), D. Bruce Hanes, a register of wills in Montgomery County, took it upon himself to begin issuing “marriage” licenses to homosexuals. Since then, Hanes has “repeatedly and continuously” flouted the the law, officials said, issuing approximately 100 licenses illegally.
Hanes asserted that he wanted to “come down on the right side of history and the law” by issuing the licenses, and refused to stop. Therefore, the Commonwealth of Pennsylvania sued Hanes, asking the court to order him to cease and desist.
“There is no limit to the administrative and legal chaos that is likely to flow from the clerk’s unlawful practice of issuing marriage licenses to those who are not permitted under Pennsylvania law to marry,” the legal complaint stated.
On Thursday, the court agreed with officials that Hanes had no authority to issue the licenses against Pennsylvania law.
“Until a court has decided that an act is unconstitutional, [the clerk] must enforce the law as written, and it is not a defense to a mandamus action the law may be unconstitutional,” Judge Pellegrini stated.
But Hanes says that he still believes what he did was right.
“After having issued 174 marriage licenses since then and having talked with many of those couples, I am more convinced today that I am on the right side of history,” Hanes wrote in a statement following the decision. “Regardless of how my particular case is resolved, I believe the case for marriage equality continues to move forward, and I can only hope that my decision helped that effort.”
However, in the meantime, Governor Tom Corbett’s office has indicated that it will fight to defend the Commonwealth’s marriage law in court against the ACLU, which challenged the statute this past July. Corbett’s General Counsel, James Schultz, applauded the ruling in the Hanes matter today, seemingly encouraged by the outcome.
“The key question in this case has been whether any local official, anywhere in Pennsylvania, has the ability to decide which laws to uphold and which laws to reject based on their own personal legal opinion,” he wrote in a statement.
Pennsylvania’s marriage law has been in effect since 1996. It states that “the strong and longstanding public policy of this Commonwealth [is] that marriage shall be between one man and one woman. A marriage between persons of the same sex which was entered into in another state or foreign jurisdiction, even if valid where entered into, shall be void in this Commonwealth.”