Original reporting by Brittany Tressler
The Commonwealth Court of Pennsylvania outlined five arguments to be heard on a Sept. 4 hearing regarding the Pennsylvania Health Department’s lawsuit against Montgomery County Register of Wills D. Bruce Hanes for issuing same-sex marriage licenses in defiance of a state ban.
Included in the issues for debate are if the Commonwealth Court is the proper jurisdiction to hear the case, if the Health Department has standing to sue Hanes, if Hanes is a judicial officer in his role as register of wills, and if the constitutionality of the act can be used as Hanes’s defense.
On July 30, seven days after Hanes announced he would issue same-sex marriage licenses, the Health Department filed a petition seeing a “cease and desist” order against the official, who has issued 137 marriage certificates, and continues to do so.
“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 petition said,according to the Post-Gazette.
Lawyers on behalf of Montgomery County filed a response, asking the Commonwealth Court to drop the suit.
First Assistant Deputy Solicitor Joshua Stein argued in a brief that the lawsuit was filed out of its jurisdiction, which should have been the Pennsylvania State Supreme Court, and that the health department has not met its burden and does not have standing to prevent the licenses from being issued.
Additionally, Stein argued, as Hanes has all along, that the U.S. and Pennsylvania constitutions allow equal rights for all citizens, negating Pennsylvania’s Defense of Marriage Act, which prohibits same-sex marriages in the state.
In a brief filed last week, the health department stated that only the judicial branch of government can declare a law unconstitutional; Stein argued that Hanes, as the Clerk of Orphan’s Court, is a judicial agency.
Stein cited a court case, In Re; Miller’s Estate, which noted “the authority of the clerk of the orphan’s court to grant or refuse to grant marriage licenses is a judicial, and not merely ministerial, act.”