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Pennsylvania judge orders clerk to stop issuing same-sex marriage licenses

A Pennsylvania judge on Thursday ordered [opinion, PDF] a Philadelphia court clerk to stop issuing marriage licenses to same-sex couples. The Montgomery County Register of Wills [official website] court clerk Bruce Hanes issued 116 marriage licenses to same-sex couples after the state's Attorney General Kathleen Kane [official website] said the Pennsylvania Marriage Law [text] was unconstitutional under the US Supreme Court holding in United States v. Windsor [JURIST reports]. Commonwealth Court Judge Dan Pellegrini [official profile] said that Hanes cannot disregard the law simply because he believes it to be unconstitutional. In the ruling, Pellegrini stated:

Hanes has admittedly failed to comply with his mandatory ministerial public duty under the Marriage Law by issuing marriage licenses to same-sex couples, by accepting the marriage certificates of same-sex couples, and by waiving the mandatory three-day waiting period, in violation of the express provisions of the Marriage Law. Even if Hanes is correct in his view that portions of the Marriage Law are unconstitutional, as noted above, the instant mandamus action is not the proper forum in which such a determination may be made.
It is not yet clear how Pellegrini's decision will affect same-sex couples who have obtained marriage licenses from Hanes.

In August lawyers for the Pennsylvania Department of Health and Governor Tom Corbett [official websites] argued in a legal filing that Hanes' decision to issue marriage licenses to same-sex couples is a separation-of-powers violation that "risks causing serious and limitless harm" in Pennsylvania. In July the Pennsylvania Department of Health filed a petition [JURIST report] in the Commonwealth Court 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. Since the Windsor [opinion, PDF] ruling, courts across the country have been citing [JURIST news archive] the decision.

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