- The Washington Times - Thursday, September 12, 2013

A Pennsylvania judge on Thursday ordered a county clerk to stop issuing marriage licenses to gay couples in defiance of state laws against same-sex unions.

D. Bruce Hanes, the Montgomery County register of wills, has “failed to comply” with his public duty under the law, said Commonwealth Court Judge Dan Pellegrini.

In an act of defiance that attracted national attention, Mr. Hanes has issued about 154 marriage licenses to same-sex couples. It was not immediately clear whether the licenses already issued are valid. Mr. Hanes said later Thursday that he was disappointed by the ruling but would abide it.

Judge Pellegrini, in his opinion, wrote that only courts have the power to determine whether a statute is unconstitutional.

“In this case a clerk of courts has not been given the discretion to decide that a law … he or she is charged to enforce is a good idea or a bad one, constitutional or not,” the judge wrote. “Only courts have the power to make that decision.”

Pennsylvania General Counsel James D. Schultz praised the decision. “We respect the interests and dignity of all the parties involved in this case,” he said, “but we are a government of laws, and it is important that all officeholders across the state enforce those laws uniformly.”

Under the state’s 1996 Defense of Marriage Act, only marriages of one man and one woman are recognized. Pennsylvania is the only state in the Northeast that does not recognize gay marriage.

Mr. Hanes began issuing licenses on his own accord in July, saying Pennsylvania’s same-sex marriage ban must be unconstitutional because the U.S. Supreme Court overturned the federal version of the Defense of Marriage Act in June. “I decided to come down on the right side of history and the law,” he said in July.

Pennsylvania Attorney General Kathleen Kane, a Democrat, also made headlines when she announced that she, too, had decided Pennsylvania’s marriage law was unconstitutional.

Mr. Schultz’s office, acting on behalf of the state Department of Health, asked the court to stop Mr. Hanes, saying the clerk was acting on his personal legal opinion.

Judge Pellegrini’s ruling does not address the constitutionality of Pennsylvania’s same-sex marriage law — that issue likely will be handled in a separate lawsuit. But the judge was asked to clarify who can decide to uphold — or flout — state law, and he sided with the state, which argued that marriage registration laws must be “uniformly and thoroughly enforced throughout the state.”

Marcus Saitschenko of Philadelphia, who with his partner was among the first to obtain a license from the clerk, told The Associated Press that he has faith in the legislative and judicial process.

“I’m confident that we will have marriage equality in Pennsylvania soon,” Mr. Saitschenko wrote in an email Thursday. “When my partner and I are legally able to be married in our home state, we will do so.”

Separately, 10 same-sex couples and a lesbian widow are challenging Pennsylvania’s 1996 law. The couples are represented by the American Civil Liberties Union, which has filed similar lawsuits in other states.

This article is based in part on wire service reports.

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