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Ban on Same-Sex Marriage Licenses to Be Appealed by Rogue Pa. County Clerk Following Court Ruling

A county in Pennsylvania that was previously ordered to stop issuing marriage licenses to same-sex couples by a Commonwealth Court plans to appeal the ruling to the state's Supreme Court, it was announced Tuesday.

D. Bruce Hanes, the clerk of Montgomery County in Pennsylvania, began issuing illegal marriage licenses to same-sex couples in July before being sued by Pennsylvania Gov. Tom Corbett's office and the state's health department to stop the rogue practice. Commonwealth Court Judge Dan Pellegrini said in a ruling in early September that Hanes did not have the power as an elected official to break the state's law banning same-sex marriage.

Hanes' lawyers said in the appeal issued to the Supreme Court on Tuesday that they are challenging the Commonwealth Court's previous ruling because they believe the court proceedings contained legal and factual errors. In the appeals documents, Hanes' lawyers question whether the Health Department that sued Hanes had met the burden of proof needed to challenge the clerk and whether the Commonwealth Court had jurisdiction to order Hanes to stop issuing the licenses.

Hanes argued in his initial court case that he believed Pennsylvania's 1996 ban on same-sex marriage was unconstitutional. Judge Pellegrini responded by saying, in his opinion, that Hanes' personal views on the topic of same-sex marriage did not override state law, and that he could not act in his capacity as a public clerk by imposing his own personal opinions on the constitutionality of laws.

"Even if Hanes is correct in his view that portions of the Marriage Law are unconstitutional […] unless and until either the General Assembly repeals or suspends the Marriage Law provisions or a court of competent jurisdiction orders that the law is not to be obeyed or enforced, the Marriage Law in its entirety is to be obeyed and enforced by all Commonwealth public officials," Pellegrini wrote.

Hanes has said in previous interviews that he chose to begin issuing same-sex marriage licenses shortly after the Supreme Court struck down key provisions of the Defense of Marriage Act in June. Additionally, the decision of Pennsylvania's Attorney General Kathleen Kane to not defend the state ban on same-sex marriage in a lawsuit with the American Civil Liberties Union also motivated Hanes to begin issuing the licenses. Since he began in July, Hanes issued 174 licenses to same-sex couples.

Pa. Gov. Tom Corbett, who opposes same-sex marriage, said Hanes' actions "[risk] causing serious and limitless harm" to both the balance of power in the state's government and individual citizens.

At the time of his early September ruling, Hanes said he was "disappointed" by the court's decision and that he would consider the appeals process. "Several weeks ago when I made the decision to begin issuing marriage licenses to same sex couples, I said I believed I was coming down on the right side of history. 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 said.

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