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Pa. agency moves to halt licenses for gay marriage

Says county clerk acting in defiance of existing law

- The Washington Times - Tuesday, July 30, 2013

The battle over gay marriage in Pennsylvania, one of the last Northeast states where same-sex unions are illegal, heated up Tuesday as a state agency went to court to order a county clerk to stop issuing marriage licenses to same-sex couples.

"No court has declared" Pennsylvania's marriage law "to be unconstitutional or unenforceable," said the lawsuit, filed by the state Department of Health against D. Bruce Hanes, clerk of the Orphans' Court of Montgomery County in Norristown, a suburb of Philadelphia.

The state asked the Commonwealth Court of Pennsylvania to order Mr. Hanes to cease issuing "invalid" marriage licenses and obey the law, which specifically prohibits marriage licenses for couples of the same gender.

The move comes as the state's Democratic attorney general has announced she will no longer defend the state's marriage law against legal challenges, forcing Republican Gov. Tom Corbett to step in.

On July 23, Mr. Hanes said he "decided to come down on the right side of history" and issue licenses to gay couples, based on the advice of a county solicitor, his "own analysis of the law" and the words of Democratic state Attorney General Kathleen G. Kane calling the law unconstitutional.

According to media reports, Mr. Hanes has issued more than a dozen licenses to gay couples and is continuing to issue them in defiance of the law, said the lawsuit, filed by Alison Taylor, chief counsel in the Office of Legal Counsel in Harrisburg. The lawsuit asks the court to order Mr. Hanes to "immediately cease and desist" issuing licenses to gay couples.

Around the nation, legal battles over gay marriage are expected to escalate as gay activists use the favorable Supreme Court ruling in June to push for expanded marriage rights at the state level.

Their first targets are states with marriage-like civil unions or domestic partnerships — Illinois, New Jersey, Hawaii and Oregon — since these laws can be easily converted to marriage through legislative votes.

But states like Pennsylvania, which have laws or even voter-passed constitutional marriage amendments against gay marriage, will be drawn into the fight as well.

In Ohio, for instance, the former attorney general — a Republican whose lesbian daughter married a woman in Massachusetts and is now expecting a child — said he supports a campaign to repeal that state's constitutional amendment banning gay marriage.

"It seems only right that all individuals should be free to pursue this happiness for themselves, no matter with whom they fall in love," Jim Petro, also a former state auditor, wrote in The Columbus Dispatch this month.

Mr. Petro's endorsement "shows that the tide is turning in favor of marriage equality in Ohio," said Ian James, co-founder of FreedomOhio.

Currently, 13 states and the District of Columbia permit same-sex couples to marry. The other 37 states have laws or amendments against it.

In Pennsylvania, the American Civil Liberties Union has sued state officials to overturn the state's marriage law on behalf of several gay couples.

In response to that lawsuit, filed in early July, Mrs. Kane said she would not defend the law because, in her view, it was "wholly unconstitutional." She delegated the job to the Office of Legal Counsel, which serves Pennsylvania Gov. Thomas Corbett, a Republican.

In Tuesday's legal papers, Ms. Taylor and her colleagues said Mrs. Kane's position was "not based on the holding of any court that has binding effect in Pennsylvania."

Moreover, it said, the Supreme Court ruling that Mrs. Kane was relying on "in no way" says that a state law resembling Pennsylvania's marriage law violates the Constitution.

James D. Schultz, general counsel for the governor, said in a letter Tuesday to her office that Mrs. Kane's actions were "an improper usurpation" of the role of the courts, and her "personal opinion" was "not a valid basis for her refusal to do her job."

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