PHILADELPHIA — Officials in the third-largest county in Pennsylvania vowed Tuesday to issue same-sex marriage licenses to any couple who seeks one, defying a state law that bans the practice and potentially raising new legal questions.
The announcement comes on the heels of a federal lawsuit challenging a ban on same-sex marriages in Pennsylvania, the only northeastern state that has not legalized same-sex marriages or civil unions.
The chairman of the Montgomery County commissioners, Democrat Josh Shapiro, said he supports same-sex marriage and was ready for the county to defend the stance in court.
The offer of a marriage license “stands for any other same-sex couple who might approach the county in the future,” Shapiro said Tuesday and added, “I think it is a very big deal what happened in Montgomery County today.”
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Shapiro said the register of wills in Montgomery County, a relatively affluent county in suburban Philadelphia, believes it is within his authority to issue marriage licenses to same-sex couples, partly because of a June 26 U.S. Supreme Court decision that the federal government could not deny federal benefits to same-sex couples who were married and live in states that allow same-sex marriage.
In addition, Attorney General Kathleen Kane, a Democrat, has said her office will not go to court to defend the state’s ban on same-sex marriage because she believes it to be unconstitutional.
A 1996 Pennsylvania law defines marriage as a civil contract in which a man and a woman take each other as husband and wife, and it says same-sex marriages, even if entered legally elsewhere, are void in Pennsylvania. State law does not allow civil unions.
The register of wills, D. Bruce Hanes, said he had been prepared to issue a license Tuesday to two women doctors who were the first to seek a same-sex marriage license from the county.
“I decided to come down on the right side of history and the law,” said Hanes, a Democrat who is independently elected.
However, the women – who are in their 40s and married in a religious ceremony in Pennsylvania several years ago – backed out Tuesday after their lawyer talked with the Americans Civil Liberties Union, which is helping lead the challenge to Pennsylvania’s same-sex marriage ban.
“They decided that today was not the day … but they look forward to the day when they, like every American, can enjoy the benefits of getting married,” said the lawyer Michael Diamondstein, who would not identify his clients.
The ACLU told him that the strategy had been tried in other states, only to have the marriages voided by courts later on, ACLU staff attorney Molly Tack-Hooper said.
“The lesbian and gay couples who might be considering going to get licenses in Montgomery County should be aware that there might be uncertainties about the status of their marriage going forward,” Tack-Hooper said. “In other states, the courts invalidated the marriages. We just don’t know what Pennsylvania courts would do.”
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Gov. Tom Corbett’s legal staff is likely to defend the state law in the case. A spokesman for Corbett, a Republican who opposes same-sex marriage, declined comment Tuesday.
Bruce Castor, a Republican county commissioner and the county’s former district attorney, said he had advised Hanes against issuing marriage licenses to same-sex couples as long as Pennsylvania’s law against same-sex marriage stands.
“This is very bad precedent,” Castor said. “For almost 200 years, we have allowed courts to determine the constitutionality of laws. I see no reason to stop now.”
He said Kane’s office could be asked by an opponent of same-sex marriage to seek a court order stopping Hanes from issuing the licenses. He also said Corbett’s office could go to court to stop it or the county’s Orphans Court could step in. Couples who get such a license and the clergymen who perform same-sex marriages could also face criminal penalties if pursued by the district attorney, Castor said.
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