Lawyers for the Pennsylvania Department of Health and Governor Tom Corbett [official websites] argued In a legal filing on Monday that a Montgomery County Register of Wills [official website] decision to issue marriage licenses to same-sex couples is a separation-of-powers violation that "risks causing serious and limitless harm" in Pennsylvania. Montgomery County court clerk D. Bruce Hanes issued 116 marriage licenses to same-sex couples after Attorney General Kathleen Kane [official website] said the Pennsylvania Marriage Law was unconstitutional [JURIST report] under the US Supreme Court [official website] holding in United States v. Windsor [JURIST report]. The Corbett administration argues that Hanes' actions have interfered with the uniform administration of the law. The administration further argues that Hanes has a duty to follow a 1996 state law, which defines marriage as between a man and a woman:
There is no limit to the administrative and legal chaos that is likely to flow from the clerk's unlawful practice. Ours is a government of laws, not one of public officials exercising their will as they believe the law should be or will be ... only courts can declare a law unconstitutional and suspend it.The administration wants a judge to order Hanes to immediately cease issuing licenses to same-sex couples and argued that if a law directs government officials to do something, they cannot disregard that direction simply because they believe it to be unconstitutional and argued that county officials who flout the law "may be guilty of a misdemeanor for each act of neglect or refusal."
In July the Pennsylvania Department of Health filed a petition [JURIST report] in the Commonwealth Court [official website] seeking to stop Hanes from issuing marriage licenses to same-sex couples. Also in July the American Civil Liberties Union (ACLU) [advocacy website] filed a federal lawsuit [JURIST report] seeking same-sex marriage in Pennsylvania. The Governor's Office of General Counsel [official website] wrote [text, PDF] to the attorney general in defense of the Pennsylvania statute, arguing that Windsor does not strike down the state's marriage law, but just the federal Defense of Marriage Act (DOMA). Since the Windsor [opinion, PDF] ruling, courts across the country have been citing the decision [JURIST news archive]. In Michigan a federal judge blocked the state's ban [JURIST report] on domestic partner benefits for employees who work for public schools or local governments. Last month a judge for the US District Court for the Southern District of Ohio [official website] ruled [JURIST report] in favor of two men seeking recognition of their out-of-state same-sex marriage. Ohio law prohibits same-sex marriage but recognizes marriages solemnized outside of the state. James Obergefell and his partner, John Arthur, who suffers from a terminal illness, married legally in Maryland earlier this month and returned to Ohio where they have resided for nearly 20 years. Arthur sought to include Obergefell as his surviving spouse on his death certificate.