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Published: Thursday, 9/12/2013

Pa. judge orders court clerk to stop issuing same-sex marriage licenses

ASSOCIATED PRESS

HARRISBURG, Pa. — A Pennsylvania judge today ordered a suburban Philadelphia clerk to stop issuing marriage licenses to same-sex couples.

Commonwealth Court Judge Dan Pellegrini said Montgomery County Register of Wills D. Bruce Hanes did not have the power to decide on his own whether Pennsylvania's same-sex marriage ban violates the state constitution.

It was not immediately clear what the decision would mean to those who have already received a license.

The state Health Department under Republican Gov. Tom Corbett sued Hanes after he began issuing licenses to same-sex couples in July, despite a 1996 state law that defines marriage as between a man and a woman. The department argued that Hanes' actions could create chaos.

Hanes, an elected official whose duties include marriage licenses, said the law conflicts with his constitutional obligations. His actions followed the U.S. Supreme Court's decision to throw out part of the federal Defense of Marriage Act, and a statement by Pennsylvania Attorney General Kathleen Kane that the same-sex marriage ban was unconstitutional.

Pennsylvania is the only northeastern state that doesn't grant legal status to marriage or civil unions between individuals of the same sex. Hanes has issued 174 licenses to same-sex couples.

A similar scenario is playing out in New Mexico, where a county clerk concluded the law did not prevent him from issuing same-sex licenses, and about a half-dozen others in that state have followed suit.

In hearing arguments Sept. 4, Pellegrini stressed that the case is about the distribution of power in Pennsylvania not whether the marriage law is constitutional.

"What's before us today is generally, 'Who decides?'" Pellegrini said at the time.

The Health Department argued that the agency must ensure that marriage registrations are "uniformly and thoroughly enforced throughout the state." It said Hanes' actions have interfered with the proper performance of its powers, duties and responsibilities. Greg Dunlap, an attorney representing the Health Department, said the agency has "an interest in the integrity of the record keeping system."

Hanes' lawyers have said the state's marriage law "affects a fundamental human right, and precludes an entire class of individuals from enjoyment of that right."

The case involved legal questions over whether the Health Department had standing to pursue what's known as a mandamus action to force a government official to follow the law and whether Hanes qualified as a judicial officer, possibly giving the state Supreme Court exclusive jurisdiction in the case.



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