The Montgomery County register of wills has joined a rising tide of elected officials using their offices to take a stand against same-sex marriage bans.
“I decided to come down on the right side of history and the law,” D. Bruce Hanes said, announcing that his office would issue marriage licenses to gay and lesbian couples.
He follows state Attorney General Kathleen Kane, who is refusing to defend the state law against a federal lawsuit, and the Obama administration, which declined to defend the federal Defense of Marriage Act. Both Hanes and Kane are Democrats.
Hanes’ decision could have statewide implications, bringing gay and lesbian Pennsylvanians to Norristown for licenses that could then be used for weddings anywhere in the state.
The legality of those licenses would remain in question, however. Under Pennsylvania law, marriage is restricted to one man and one woman.
Hanes, a Cheltenham resident elected in 2007, said that last week – for the first time – a lesbian couple had requested a marriage license from him.
After consulting with solicitors, Hanes said he “was prepared to issue a license to the couple.”
The couple were to receive the license at a news conference Tuesday but canceled.
The couple’s attorney, Michael J. Diamondstein, said in a statement that they “chose not to go forward because they were extremely concerned that the issuance of the marriage license would be challenged on procedural grounds without the courts ever addressing the actual issue of marriage equality.”
Diamondstein said the couple – two doctors in their 40s who have been together for 14 years – requested the marriage license after hearing Kane’s position on the state law.
He said he was unsure whether they would return to the marriage office soon, but added: “They look forward to the day when they can get married like any other American couple.”
Hanes made it clear he was prepared to grant the license.
“Had the couple sought the license today, I would have issued it and wished them all the freedom, independence, happiness, and rights that our commonwealth’s constitution purports to grant to them,” Hanes said.
Citing equal protection clauses in Article 1 of the state constitution, Hanes said, “Those are provisions of the Pennsylvania Constitution which I think are diametrically opposed to the marriage law.
“Now, what am I to do? I took an oath,” Hanes said.
Hanes consulted with county commissioners last week and received conflicting opinions.
“If he thought so strongly that it was unconstitutional, he should have refused to issue the license and made a public statement that he agreed with the couple applying, and invite them to sue him,” Republican Commissioner Bruce L. Castor Jr. said. He said it was up to the courts to decide whether laws are unconstitutional.
Democratic Commissioner Josh Shapiro said the county’s issuing the license and the state’s validating it were separate questions.
“In conjunction with the solicitor, [Hanes] has the authority to decide whether to issue the license,” Shapiro said. “Defining marriage is a separate question from that, and a question that’s unsettled at this point in time.”
Shapiro, like other proponents of marriage equality, pointed to Kane’s position and the U.S. Supreme Court’s June 26 ruling that overturned the federal DOMA.
The American Civil Liberties Union – which is not affiliated with Diamondstein or his clients – said the issuance of marriage licenses would not affect its lawsuit against the Pennsylvania law, which could stretch over years of federal trials and appeals.
ACLU lawyer Molly Tack-Hooper said she did not know whether any of her plaintiffs planned to take advantage of the Montgomery County licenses. But, she said, “lesbian and gay couples who want to get married in Montgomery County should be aware that there will be uncertainty around those licenses for quite some time.”
Tack-Hooper said similar scenarios had played out in other states. In California, nearly 4,000 couples rushed to the altar in 2004 when San Francisco Mayor Gavin Newsom decided to issue same-sex marriage licenses. Six months later, those marriages were invalidated when a court ruled that Newsom had overstepped his authority.
Over the next eight years, about 18,000 would-be spouses lived in legal limbo as California courts, legislators, and voters wrangled over same-sex marriage.
For California, the story ended last month when the U.S. Supreme Court upheld a ruling against the same-sex marriage ban.
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