It was a move that was likely meant to give more teeth to lawsuits seeking to challenge the Pennsylvania ban on same-sex marriage. Last week, Montgomery County began issuing same-sex marriage licences under the orders of D. Bruce Hanes, the county’s Register of Wills.
The Pennsylvania Department of Health is suing to stop the marriages in a move that could prove politically dicey for the Corbett Administration. The suit alleges that Hanes is not performing the job he was elected to do. The DoH took the unusual route of filing a Writ of Mandamus and asked the court to compel Hanes to fulfill his job to the letter of the law.
Attorney Irwin W. Aronson told NBC that “It’s a method that is used procedurally when there is no case between two parties, no adversarial controversy. This is really a political case, not a legal case, that is going to be teed up, if you will, by politicians in a court room.” It is also possible that the Corbett Administration took this route in order to avoid the issues of having to rely upon Attorney General Kathleen Kane take any other legal action.
The American Civil Liberties Union is already suing to have the Pennsylvania ban on same-sex marriage struck down. AG Kane has already stated she would not defend the law feeling that the ban was unconstitutional. It was after that point that Hanes got requests from same-sex couples to marry.
According to Corbett spokeswoman Janet Kelley, the DoH filed the Mandamus petition because it is their responsibility to maintain marriage license records. She stated that “Mandamus is the proper legal action to compel a public official’s compliance with an existing law.”
The Corbett administration also attacked AG Kane saying that she has been ignoring her duties, betraying the Governor and setting a ‘dangerous precedent’ in not defending the state’s marriage statute on constitutional grounds. The state’s General Counsel, James D. Schultz, claimed that Kane’s interpretation of the Supreme Court ruling striking down Section 3 of the Defense of Marriage Act was just wrong.
He stated that “The Court in no way adjudicated the question of whether a state law defining marriage as exclusively between a man and a woman violates due process or equal protection. To the contrary, Windsor clearly leaves for another day the limits that the U.S. Constitution might impose on the State in their regulation of the marital relationship.”
Deputy AG Adrian King responded by stating “As you know, Governor Corbett is a steadfast supporter of the Marriage Law. It is reasonable to assume that the Governor seeks to have his position vigorously represented before the court. Given the Attorney General’s fundamental disagreement with the Governor on this issue – in her capacity as his attorney – the Rules of Professional Conduct clearly require her withdrawal. Furthermore, it is not your job to tell the Office of the Attorney General – an independent agency – what its duties and obligations are.”
For his part, Aronson believes that the case against Hanes will be complex, time consuming and expensive. He stated that “From my perspective, I’m just a little bit shocked that we have the funds to do this, when we don’t have the funds to educate our kids or fix our roads. It’s getting comical, except for the victims.”
And in the end, that could be exactly how this hurts the Republicans in Pennsylvania.