You may remember that earlier this summer the Montgomery County Register of Wills, D. Bruce Hanes, began issuing marriage licenses for same-sex couples. He explained that he believed the oath of his office required it and to deny the marriage licenses was not only unfair, but also unconstitutional and illegal. He issued the licenses despite a state law that defines marriage as between one man and one woman. The Pennsylvania Department of Health filed an obscure type of “lawsuit” called a Writ of Mandamus, which essentially commands Hanes to perform his duties and deny the licenses. Before issuing these licenses, Hanes consulted with the County Solicitor and decided that the Constitution required him to issue the licenses. He reasoned that the Supreme Court’s recent decision on the Defense of Marriage Act made denying the licenses illegal.
The case went before the Pennsylvania Commonwealth Court, which hears cases involving administrative agencies like the Department of Health. The Commonwealth Court decided against Hanes. The case is back in the news today because Hanes filed briefs, meaning his arguments, before the state Supreme Court challenging the Commonwealth Court’s ruling. Obviously, whatever the state Supreme Court decides would be a major decision. Siding with Hanes would raise significant questions about what other counties must do. It is possible that the Supreme Court could decide the issue in Hanes’ favor without going so far as to say that all counties must issue marriage licenses to same-sex couples.
Does the U.S. Supreme Court’s ruling on the Defense of Marriage Act truly require Hanes to issue these licenses? Since the decision did not specifically deal with the constitutionality of gay marriage bans — no, not really — but one could argue that Justice Kennedy’s condemnation of creating a subset of less equal marriages mandates such a finding. Arguably the decision could be interpreted as creating a new fundamental right that is protected by the Constitution although the opinion is filled with language deferring to the states’ marriage policy. So while the decision probably does not require Hanes to hand out the marriage licenses, it’s interesting to see him take this position and defend it. Hanes is arguing that denying the applications would violate his oath as well as the United States and Pennsylvania Constitutions and, therefore, he is pushing for broader rights. It is rare to see any public official taking this kind of stand. Definitely a case worth keeping an eye on as it may gain even more national attention as it goes forward.