A state judge has heard arguments over jurisdiction and other matters in the case of a county court official’s decision to issue marriage licenses to same-sex couples.
Commonwealth lawyers are trying to stop the practice, arguing they were distributed in violation of Pennsylvania’s law defining marriage as between one man and one woman.
Lawyers for Montgomery County Register of Wills D. Bruce Hanes said his actions are defensible on the basis they uphold the U.S. and state constitutions.
But Nils Hagen-Frederiksen, a spokesman for the commonwealth lawyers, said such a defense is questionable, since it opens up the possibility of uneven enforcement of laws.
"The key question here is, who decides?" he said. "Do the courts decide constitutionality of issues or do we have a system where individual public officials anywhere in the state decide based on their own personal opinions which laws to uphold and which laws to reject?"
Raymond McGarry, Montgomery County’s lawyer in the case, said allowing D. Bruce Hanes to continue issuing licenses to same-sex couples wouldn’t cause chaos, as state lawyers warn.
"He didn’t just willy-nilly decide that this was unconstitutional," McGarry said. "There have been courts throughout the United States — in Massachusetts, in Iowa, recently in New Mexico, in California — that have decided that laws like this are unconstitutional. Kathleen Kane, the attorney general of this commonwealth, has decided that this law is unconstitutional. So this was not a decision made out of thin air."
Other questions before the Commonwealth Court judge include whether the state has legal standing to stop the licenses from being issued, and whether the case is better suited for the state Supreme Court.
The judge said he’ll try to rule as soon as possible on what he calls a “difficult” case.
