Pennsylvania’s Republican administration argued in court last week that same-sex couples are no more entitled to marriage recognition than 12year-olds. What prompted this patronizing statement and why is this lame argument actually a positive sign?
For the past few months, a quiet revolution has been happening in Pennsylvania.
The Montgomery County Register of Wills D. Bruce Hanes, Philadelphia, has concluded that after the Supreme Court’s decision striking down DOMA Section 3, bans on marriage equality are unconstitutional and as such has started issuing same-sex marriage licenses. In total, more than 150 same-sex couples have received licenses since July 24.
The state’s Republican administration, headed by Tom Corbett and represented by the state’s Department of Health, has launched a legal bid to try to put a stop to this, with the governor’s office arguing this week that the court should not even bother hearing from those couples who have obtained said licenses because their voices are irrelevant as their marriages have no legitimacy.
The governor argues that, based on the state’s statutory — but not constitutional — ban on marriage equality that was passed in 1996, the couples have no grounds to intervene because they are not married and never were. To argue this, the state’s legal team used the following flawed analogy:
“Had the clerk issued marriage licenses to 12-year-olds in violation of state law, would anyone seriously contend that each 12-year-old … is entitled to a hearing on the validity of his ‘license’?”
Corbett’s office, facing widespread criticism, has now made it known he personally never approved this exact analogy. Regardless, is there any merit to the underlying claim?
While it may be argued that county officials appear to have pushed the bounds of their authority in issuing marriage licenses before the state’s lawmakers have cleared up the matter of whether a statutory ban on gay marriage is now lawful in this post-DOMA Section 3 landscape, to argue that the couples who have obtained licenses have no right to have their voices heard as to the validity of their marriages seems debatable, especially when considering the state’s own precarious position.
You will have noticed that the state’s attorney general, Kathleen Kane, has so far been absent from this discussion. That is because Kane has refused to defend the ban because, following the DOMA decision, she believes it is now unambiguously unconstitutional. A significant question has therefore been raised as to whether the state’s Department of Health and the Governor’s office has standing to bring about court action without Kane’s involvement.
Moreover, there are questions as to whether the Commonwealth Court which will hear this case on September 4 even has the authority to adjudicate on this matter. This relates to the fact that defendant Hanes is a judicial officer and so the court has said it needs to explore whether it has the power to overrule a determination made by Hanes or whether a higher court’s authority will be needed.
County officials certainly are required to follow the law of the land, but not just that of the state. If local officials believe that the Supreme Court’s DOMA decision invalidated the statutory ban on the basis of the United States Constitution’s promises of equal treatment under the law, as a federal court case launched by the ACLU argues, they could reasonably believe there is no strict impediment to issuing those licenses — that, as is the argument in New Mexico, it would in fact be unlawful to refuse marriage licenses based on those grounds.
Now it may be that the Commonwealth Court will decline to rule on any of the substantive issues raised here and instead provide a temporary injunction against the issuing of any more licenses pending the outcome of the federal lawsuit on the constitutionality of the law.
However, if the best the Republican administration has in its legal arguments is that denying gay couples the right to marry is the same as denying licenses to 12-year-olds, equality advocates may be encouraged that the state apparently has nothing up its sleeve to defend the ban except cheap allusions to child marriage.
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