Lawyers asked a state court on Friday to throw out a lawsuit that seeks to stop a rogue county official from issuing marriage licenses to gay couples, who cannot legally wed in Pennsylvania.
County attorneys for D. Bruce Hanes said the Montgomery County clerk has a sworn duty to uphold the Pennsylvania and U.S. constitutions - and the state law banning same-sex marriage violates both, they argued.
The state “cannot possess a clear legal right to force (Hanes) to abandon his oath,” the lawyers wrote.
The documents filed Friday come in response to a lawsuit filed against Hanes earlier this week by the state Health Department. The complaint seeks a court order to stop Hanes from granting licenses to gay couples; he has issued more than three dozen licenses since July 24.
Hanes began granting the licenses not long after the U.S. Supreme Court struck down part of the Defense of Marriage Act. At the time, he said he wanted to “come down on the right side of history and the law.”
Pennsylvania is the only northeastern state without gay marriage or civil unions.
The Health Department contends that Hanes' actions will cause “administrative and legal chaos” and will likely lead to illegal claims for benefits. Hanes has also registered at least six gay marriages, the final step couples take to marry.
Hanes is represented by county solicitor Ray McGarry and attorney Michael P. Clarke. They argued that the Health Department has no standing to sue Hanes, saying only the attorney general, district attorney or private citizen have that power. They also asked for the case to be transferred to the state Supreme Court.
The American Civil Liberties Union has filed a separate lawsuit to overturn the 1996 state law defining marriage as a civil contract between one man and one woman. Attorney General Kathleen Kane has declined to defend the law, saying she believes it is unconstitutional. That task has now fallen to the governor's office.
Meanwhile, an official in Centre County said she will perform weddings for same-sex couples who obtain a license from Hanes' office. State College Mayor Elizabeth Goreham said although she doesn't have the power to issue marriage licenses, she can wed couples who already have one.