(Photo: Reuters/Craig Houtz)
A Pennsylvania court will decide at a hearing on Wednesday whether an elected county clerk can continue to issue same-sex marriage licenses - something he has been doing illegally for weeks now.
D. Burce Hanes of Montgomery County began issuing gay marriage licenses in July, a month after the Supreme Court struck down the Defense of Marriage Act and left in place a lower court ruling striking down California's Proposition 8 that banned gay marriage.
Within a week after Hanes began issuing licenses, the State of Pennsylvania, through the Health Department, filed a petition arguing that the county clerk had "repeatedly and continuously" violated the law by issuing 34 licenses and registering six same-sex marriages, and that his decision would lead to illegal claims for benefits.
This came just several weeks after the state's Attorney General Kathleen Kane, announced she would not defend the state in a federal lawsuit challenging the state's ban on same-sex marriage, because it violated her convictions. Instead she would be delegating the defense of Pennsylvania's marriage law, which defines the institution as strictly between a man and a woman, to Governor Tom Corbett's office.
The ramifications of the court's decision are still unclear, though it is not expected that a court decision would legalize same-sex marriage in the state.
For Wednesday, the court has asked lawyers to focus their arguments on whether the court has jurisdiction to rule, given that Hanes is a judicial officer, and if issuing marriage licenses constitutes a judicial act.
They have also asked lawyers to explore if the constitutionality of the state's current marriage law can be a defense in the case, and if the Attorney General's delegation of the case to the Corbett Administration via the Health Department is legal, and if not, what the rammifcations of Kane's decision are.
In a filing last week, Corbett' lawyers argued that there was only one principle at stake in the court ruling — and it was not same-sex marriage. Rather it was whether a local official could simply decide himself whether a current law in force was unconstitutional.
"This case is about one thing: whether a local official may willfully disregard a statute on the basis of his personal legal opinion that the statute is unconstitutional," they wrote.
Currently, another same-sex marriage lawsuit has been filed against the the state by the American Civil Liberties Union, which is suing Pennsylvania to overturn state law.
Pennsylvania's case is not the only county clerk case to hit the nation. In New Mexico last month, hundreds of same-sex marriage licenses were issued after a county clerk concluded that state law didn't prevent him from issuing gay marriage licenses. So far, clerks in six counties have begun issuing licenses, and a seventh has been ordered to do the same.