Marriage licenses given to same-sex couples in the state are invalid because the couples were barred from marrying, just like 12-year-olds, Republican Gov. Tom Corbett's attorneys said Wednesday.
Corbett's administration has filed a lawsuit seeking to block same-sex marriage licenses in suburban Philadelphia, where Montgomery County Register of Wills D. Bruce Hanes has issued more than 150 to gay and lesbian couples since July 24.
State attorneys said in a court filing on Wednesday the gay marriage licenses have no "value or legitimacy'' and can't be defended in court. They compared gay and lesbian couples to children, who can't marry because a 1996 law says marriage is between a man and a woman.
"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'?'' the state wrote in a case brief.
The state Department of Health brought the case against Hanes. Hanes, who says the state law is unconstitutional and discriminatory, is scheduled to appear in Commonwealth Court next week in the case.
More than 30 gay and lesbian couples that received marriage licenses from Hanes say a ruling against him could invalidate their marriages, and they've sought to participate in the case.
The state opposes their participation and their efforts to defend what it calls their "purported marriage licenses.'' It said the gay and lesbian couples should file their own lawsuits or wait to see what happens with a federal challenge to the state's marriage law.
"This case is about one thing: whether a local official may willfully disregard a statute based on his personal legal opinion that the statute is unconstitutional,'' the state's lawyers wrote.
The Commonwealth Court last week laid out the topics to be argued at the Sept. 4 hearing on the marriage licenses issued by Hanes. It wants lawyers to focus on whether the court has jurisdiction, given that Hanes is a judicial officer.
Other questions are whether issuing marriage licenses is a judicial act and whether the constitutionality of the state's marriage law can be raised as a defense.
Also at issue are whether the Department of Health has standing to sue, and, if not, the effect of Democratic Attorney General Kathleen Kane's delegation of defense of the law to the governor's legal staff.