Going Rogue for Marriage Equality

AP Photo/Matt Rourke

Tamara Davis, left, and Nicola Cucinotta kiss after obtaining a marriage license in Montgomery County, Pennsylvania despite a state law banning such unions.

Last week, Montgomery County, a sleepy suburb of Philadelphia, was thrust into the national spotlight when its elected register of wills, D. Bruce Hanes, put principle above policy and began issuing marriage licenses to same-sex couples in defiance of Pennsylvania's long-standing ban on gay unions. Since July 24, Hanes has issued more than two dozen of the licenses. Thus far, two lesbian couples have used the licenses to tie the knot in the first officially sanctioned same-sex marriages in Pennsylvania history. 

Hanes's pioneering effort—which materialized over the course of a single week after a lawyer representing two women contacted his office to inquire about obtaining a marriage license—has elevated Pennsylvania's stature as a gay-rights battleground and put Governor Tom Corbett on notice that, on the issue of same-sex marriage, the commonwealth is evolving with or without him. But by going it alone, is Hanes furthering the cause of marriage equality or endangering it?

Yesterday the governor, a Republican who opposes marriage equality, slapped Montgomery County with a lawsuit seeking to enjoin Hanes from issuing any more marriage licenses to same-sex couples. The filing also asks the court to invalidate any marriages that have already taken place. “As a result of the illegal issuance of marriage licenses by the clerk, it appears that same-sex couples are proceeding with marriage ceremonies that are not permitted by Pennsylvania law,” the petition reads. In a written statement, Montgomery County Solicitor Ray McGarry said the state's position “has serious flaws” and that until the matter is settled by the courts, the register of wills will continue to issue licenses to same-sex couples.

D. Bruce Hanes (AP Photo/Matt Rourke)

Hanes's move comes just weeks after the American Civil Liberties Union joined a Philadelphia law firm in challenging the state’s ban on gay marriage on behalf of nearly a dozen same-sex couples. In that case, newly minted Attorney General Kathleen Kane stated publicly that she would not defend the ban. Michael Clarke, the solicitor for the register of wills who advised Hanes to issue the licenses, said the attorney general's position—and her statement last month that Pennsylvania's Defense of Marriage law is “wholly unconstitutional”—figured prominently into his decision to advise Hanes to issue the licenses. “The way I saw it, the only way we could deny them a license would be on the grounds that they were women, and in our eyes that violates Pennsylvania's constitution, which says equal rights cannot be denied based on an individual's sex,” Clarke says

Legal scholars say that's a pretty solid argument, but it's up to the court to decide whether Hanes had the authority to act on it unilaterally. “Hanes is clearly right on the law. The question is does a local official have the right to follow the law rather than the government of which he is a part,” says Burton Caine, a professor of constitutional law at Temple University and a Montgomery County resident. "I believe that he does have the authority." 

Jill Engle, a professor of clinical law at Penn State University, says that if it's determined that Hanes acted outside the law, then the licenses he issued would be de facto null and void. But she acknowledges that recent factors—such as the Supreme Court's ruling striking down the federal Defense of Marriage Act and Attorney General Kane's refusal to defend Pennsylvania's own gay marriage ban—places the case in uncharted territory. “Under the strict letter of the state statute, of course, [these marriages] appear illegal,” she says. “That being said, Hanes’s point that one can interpret the state constitution to reach the opposite conclusion is persuasive, and more persuasive than it was a few months ago thanks to the Supreme Court's decision on the federal Defense of Marriage Act, on which our Pennsylvania statute was arguably based.”

The larger question is where Hanes’s move fits into the broader push for marriage equality in the state. Some gay-rights advocates are worried about what they see as a potential distraction from the main event in Pennsylvania—the ACLU case, Whitewood v. Corbett, which is scheduled for trial in United States District Court on September 30. 

“I happen to think the best way to move is through the courts and to work within the legislature, and that's what we have been trying to do,” says Ted Martin, executive director of Equality Pennsylvania. Martin worries such a defiant stance at the county level could back opponents of marriage equality into a corner, which would only strengthen their resolve to fight. “For every action there is a reaction, and we just don't know what that's going to be.”  

Malcolm Lazin, the founder of the Philadelphia-based Equality Forum takes a different view. He compares what's happening in Montgomery County with San Francisco Mayor Gavin Newsom's decision to issue thousands of marriage licenses to gay couples in 2004. “In one sense this was a political statement that took a concept that is getting a lot of attention and humanized it,” he says. “It helps to frame the legal issue.” 

Philadelphia attorney Mark Aronchick, whose firm Hangley Aronchick Segal Pudlin & Schiller is serving as co-counsel to the ACLU in its federal lawsuit, declined to comment specifically about the situation in Montgomery County, but his words seemed to contradict any claim that Hanes’s actions could compromise his own efforts. "This wasn't part of our case strategy, and it happened independent of us so we'll watch it and see where it goes,” he says. “I applaud all public officials who are taking steps to make marriage equality a reality in Pennsylvania.”    

Whether Hanes's bold effort will prove successful remains to be seen. Similar moves in the past, however, have not typically met with success. While they are credited with laying the foundation for California's recent victory on gay marriage, all of the weddings officiated by Newsom were ultimately voided by the California Supreme Court. And in 2004, Mayor Jason West of New Paltz, New York, faced criminal prosecution after he defied state law and officiated over a series of same-sex marriages in his town. New York legalized same-sex marriage through legislation in 2011. 

Yet the legal drama unfolding in Pennsylvania must be viewed within the context of the rapidly shifting dialogue on the issues of same-sex marriage and gay civil rights. Lazin thinks that when all is said and done, that may be a defining factor in its resolution. “We are in many ways a very conservative state, but having said that, there is a significant change in public opinion that increasingly favors LGBT civil rights,” he says. “The political climate has changed here and, particularly, the Republicans have changed their position. They are no longer going to be as proactive in fighting this.” 

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