Montco Defiant in Face of Commonwealth Suit Over Same-Sex Marriage
Montgomery County is digging in for what could be a protracted legal battle over the constitutionality of Pennsylvania’s long-standing ban on same-sex marriage. Two days after the commonwealth’s Department of Health filed a writ of mandamus seeking to enjoin Montco Register of Wills D. Bruce Hanes from issuing any more marriage licenses to same-sex couples, county solicitor Ray McGarry responded today with a petition to dismiss the state’s claim.
Montgomery County solicitor Ray McGarry issues a response to a state filing challenging the county’s same-sex marriage licenses.
Hanes began issuing marriage licenses to same-sex couples on July 24 after being contacted by an attorney representing two women who wished to get married. As of the end of the day Friday, Hanes had issued 62 marriage licenses to same-sex couples, 13 of which have been returned to the county after being used in wedding ceremonies.
In a press conference in Norristown today, Montgomery County solicitor McGarry argued that the Department of Health has no standing to pursue a case against Hanes and, even if it did, the Commonwealth Court — where the state’s petition was filed — lacks the jurisdiction to litigate it. Since Hanes is a judicial officer serving the Orphan’s Court of Montgomery County, McGarry said, state legal protocol dictates that the matter should be settled by the Supreme Court.
Montgomery County solicitor Ray McGarry talks to reporters after a press conference issuing the county’s response to a state filing challenging its issuance of marriage licenses to same-sex couples.
McGarry also responded to the state’s assertion that Hanes did not have the authority to act unilaterally in defiance of state law:
“What we have here is a situation where Bruce Hanes took an oath of office, and that oath required him to fulfill the duties of his office by following both the United States Constitution and the Pennsylvania Constitution. So he was left in a dilemma where there’s a statute which says that he can’t do something … which both he believes, and the [Pennsylvania] Attorney General has stated she believes, is unconstitutional. Being left with the dilemma of deciding between these laws, he decided that the Constitution is the law he should follow.”
McGarry said there has been no direct coordination between his office and the ACLU — which is pursuing a case in federal court challenging Pennsylvania’s gay marriage ban — or any of the couples that have been married using the county-issued licenses.
Asked whether he will appeal a ruling in favor of the state, McGarry said that remains to be seen.
“I’ll sit down with my client and discuss what our options are at that time,” he said. “This is a process. We’re waiting to see where it goes next.”