by Mike Andrew -
SGN Staff Writer
The county official who was ordered by a Pennsylvania court to stop issuing marriage licenses to same-sex couples has appealed the ruling to his state's Supreme Court.
D. Bruce Hanes, Montgomery County Register of Wills, began issuing marriage licenses to Gay and Lesbian couples in July, soon after the U.S. Supreme Court struck down DOMA. On September 12, the Pennsylvania Commonwealth Court ordered Hanes to cease and desist, because state law forbids same-sex marriages.
Hanes appealed the ruling on October 1.
In his filing, Hanes says there are 'legal and factual errors' in the order issued by Commonwealth Court President Dan Pellegrini. Among the issues is Hanes' contention that the Pennsylvania Department of Health lacked standing to challenge his authority to issue licenses.
Hanes is asking the state's highest court to determine whether 'the issuance of marriage licenses is a discretionary, not ministerial, act, where the department suffered no harm, let alone any particularized harm from Hanes' act of issuing marriage licenses to same-sex couples.'
As register of wills, Hanes says, he 'acts as a court of inferior jurisdiction in his role of issuing marriage licenses, a unique, discretionary function of the register of wills, acting as the clerk of the Orphan's Court, that is not akin to the ministerial functions of Prothonotaries and other Clerks of Court.'
In other words, Hanes says he has the authority to issue marriage licenses to any couple he thinks should have one, and he is not limited by the directives of a higher authority.
SPURRED BY DOMA RULING
In July, when he began issuing the controversial same-sex marriage licenses, Hanes said he was motivated by the U.S. Supreme Court decision on DOMA, and by his reading of the Pennsylvania constitution.
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?' Hanes asked. 'I took an oath [to uphold the constitution].'
'As we all know, when a law conflicts with the constitution, the constitution wins,' he added.
On the other hand, the state's Department of Health, acting on behalf of Republican Gov. Tom Corbett, said Hanes was obligated to follow state law rather than his own interpretation of the constitution.
'Compliance with Pennsylvania law by its public officials is a mandatory obligation,' the Health Department's suit said. 'Ours is a government of laws, not one of public officials exercising their will as they believe the law should be or will be.'
The trial court ultimately agreed with the Health Department. Meanwhile, Pennsylvania's Democratic Attorney General, Kathleen Kane, said she would decline to defend the state's law barring same-sex marriages.
Before being ordered to stop, Hanes issued 174 marriage licenses to Gay and Lesbian couples throughout Pennsylvania. Many have since used those licenses to get married, but the legal status of those unions remains in question.
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