4 Burning Questions About Montgomery County’s Gay Marriages

Such as, are these couples, right now, legally married?

Since July 24, Montgomery County has issued more than 35 marriage licenses to gay couples, in open defiance of a state law that forbids same-sex marriage. Several of those new couples have already held ceremonies, and seem to consider themselves lawfully wedded. Yesterday, the state sued Montco Register of Wills D. Bruce Hanes, the guy giving out the licenses, demanding that he stop. Until the courts rule on the matter, here are a few nagging questions:

Let’s start with: Um, are these people actually legally married?

David Rasner, co-chair of Fox Rothschild’s Family Law Group says no, point blank. Same-sex marriages clearly violate state law. Temple Law Professor Lee Carpenter isn’t so sure, telling me that the licenses — and subsequent marriages — are in a state of legal limbo until couples either test their new status by trying to attain some sort of government benefit, or the courts issue a ruling. Pretty much nobody seems to think the answer is an unequivocal “yes.”

What’s makes Montgomery County think it can pull this off?

Two things. First, they agree with Attorney General Kathleen Kane that the state’s Defense of Marriage Act, which prohibits same-sex marriage, violates the Pennsylvania Constitution. (Kane is refusing to defend the law against an ACLU challenge.) That’s a fairly lofty argument that seems designed to get DOMA in front of the state Supreme Court.

Second — and this is where things could get interesting — Montco is making a highly technical argument that there’s nothing in state law that actually forbids them from issuing the licenses themselves, which is what they’re being sued over. “The state enumerates who you cannot issue a license to,” says Montco County Commissioner Josh Shapiro. “Mother-son, father-daughter. Nowhere does it say that you can’t issue a license to a same-sex couple.” Shapiro’s right. Check out Statute 23 Pa. C.S.A. Section 1304 — “Restrictions on Issuance of Licenses.” Syphillis? Red flag. Gay couples? No mention.

In other words, Montgomery County is basically telling the state: “Hey, don’t blame us, we’re just giving out the licenses.” “It’s an interesting argument,” says Rasner, “But I think he court has power to say even the issuance of the license is not permissible by statute.” Indeed, according to the lawsuit, the state is arguing it’s illegal to issue a license if the marriage would trigger some obvious legal issue.

Has this happened before? What can we learn?

Yes, in fact. In 2004, a handful of cities and towns caught gay-marriage fever, and began flouting state laws to marry same-sex couples. The two highest-profile examples took place in San Francisco and in tiny New Paltz, N.Y. Beginning in February, 2004, Mayor Gavin Newsom directed S.F. to allow around 4,000 same-sex marriages. In August of that year, the state’s Supreme Court forbade the city from marrying gay couples, and invalidated all the previous licenses that had been issued. This is what could very well happen in Montco.

But the New Paltz example offers another potential outcome. There, Mayor Jason West took it upon himself to marry a couple dozen couples. Unlike the officials in Montco., he never issued actual marriage licenses, simply performing marriages himself. The state ordered the marriages to stop, but never technically invalidated them. Today, West told me that at least one newly wedded spouse went to his employer (IBM), showed him documentation that he was married, and got his husband health insurance through the company.

This is another plausible outcome for Montgomery County. Even if the courts eventually strike down the licenses (and marriages), a spouse could apply for benefits based on her newfound status in the meantime. And a company not willing to stir the pot could very well go ahead and grant them. Indeed, says one couple that received a Montco license, “Once we get married we will go back to our long-term insurance carrier and challenge them to give us the discounts that we weren’t afforded.”

What could happen next?

Carpenter, the Temple Law professor, worries that couples are going to assume they’ve been granted a legal status they do not in fact have. Here’s one of the scenarios she fears: One of the two newly “wedded” partners dies without writing a will, assuming the state will grant her partner some sort of control over the estate of the deceased. “Imagine you buy a car,” she says, “but you’ve never driven it, and can’t tell if it runs, and the first time you drive it is if you need to drive to the hospital.” It’s unclear that Pa. would treat the partner as a legal spouse, even before the courts rule on anything.

Legally speaking, Rasner thinks the courts will declare the licenses, and thus the marriages, illegal. It will not, in other words, pull a New Paltz and decline to rule on the marriages, despite the absence of a valid license. And whatever it decides, he adds, it’s significant that the state filed its suit in Commonwealth Court. An appeal by either side would send it right up to the state Supreme Court, where larger questions about the state’s anti-gay marriage law could be taken up.