Same-Sex Marriage Battle Heats Up in Montgomery County with Response to State

By Karen Araiza
|  Friday, Aug 2, 2013  |  Updated 7:53 PM EDT
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Montgomery County's Solicitor, Ray McGary held a press conference to announce that they have filed a preliminary objection on the state's lawsuit on D. Bruce Hanes. NBC10's Deanna Durante talks with a couple who got their marriage licenses after 15 years of waiting for the law to change.

NBC10 - Deanna Durante

Montgomery County's Solicitor, Ray McGary held a press conference to announce that they have filed a preliminary objection on the state's lawsuit on D. Bruce Hanes. NBC10's Deanna Durante talks with a couple who got their marriage licenses after 15 years of waiting for the law to change.

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The same-sex marriage battle goes another round in Montgomery County today with the county issuing its response to this week's legal efforts by the state to stop the county from issuing marriage licenses to same-sex couples.

The Pennsylvania Department of Health filed a petition on Tuesday claiming the Register of Wills, D. Bruce Hanes, was not performing his job to the letter of the law by issuing those permits, because Pennsylvania's Marriage Law states that marriage is a contract between a man and a woman.

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The county responded to the lawsuit today, asking that the suit be dismissed. The county is making three major claims. They're arguing that the health department has no control or authority over marriage licenses and so has no basis or standing to bring a suit against Hanes. Montgomery County Solicitor Raymond McGarry said the law allows for a Mandamus act to be brought against a person by three people, in this case: The state's attorney general, the county's district attorney, or a private citizen.

The county is also arguing that the state's suit was filed in the wrong court. The county claims that Hanes' job is a judicial position and the state's Supreme Court is the only court that has the authority to enforce rules or laws around his conduct.

Ultimately, the county argues that the state hasn't met its burden of proof for a Mandamus act and that in order to do that, the state would have to prove that Pennsylvania's Marriage Law is constitutional.

County Solicitor Ray McGarry cited the U.S. Constitution and Article 1 of the Pennsylvania Constitution, "which is aptly entitled, Inherent Rights of Mankind, it states that all men are born equally free and independent and should have certain indefeasible rights, among which is the right to pursue one’s own happiness.”

Hanes has been issuing same-sex marriage licenses since July 23, saying he made the decision to come down on the right side of the law and history.

Documents

Malcolm Lazin, the Director of Philadelphia's Equality Forum and also an attorney, said the county's case is strong enough that it the court could dismiss it and Governor Tom Corbett's administration would then have rethink its legal strategy.

"But I thought what was impressive was the legal reasoning that the Montgomery County Solicitor gave for their support of same sex marriages -- numerous citations both from the U.S. and the Pennsylvania constitution," Lazin said.

"In roughly one week, there are already 47 same-sex couples that have filed for marriage license in Montgomery County and each of them is a different human story and what binds them all together is what bind together all of us, the fundamental right to marry the person of their choice and to form a family."

Judicial and legislative law expert, Irwin W. Aronson, who is also an LGBT advocate, says the county's response to the state makes strong arguments that will likely stand up if the case progresses through the courts, but it's hard to predict, he says, what will happen next.

"There's such a political overtone to this entire matter that it's very hard to predict," Aronson said."The governor is clearly motivated by his personal sense of morality and his political sense of a guy who's seeking re-election."

Organizations like the PA Family Council support the Governor's position and have launched a campaign on their website asking people to "Thank Gov. Corbett for Defending Marriage."

"Yes, we've had an influx of calls this week in support of the governor's stance," said spokeswoman Christine Cronkright. "A substantial number of calls."

Another spokeswoman for the governor said no official comment would come today from his office, "but we've asked him [Hanes] to cease and desist."

Kait Gillis, Deputy Press Secretary for the Department of Health, said "the legal documents speak for themselves. As this is an ongoing legal matter, the department has no further comment at this time."

Pennsylvania is the only state in the Northeast without same-sex marriages or civil unions, and recent polls have shown that a majority of Pennsylvanians support same-sex marriages.

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