Skip to main content
Please enter a legal issue and/or a location
Begin typing to search, use arrow keys to navigate, use enter to select

Find a Lawyer

More Options

PA Court Clerk Ordered to Stop Issuing Gay Marriage Licenses

By Aditi Mukherji, JD on September 18, 2013 | Last updated on March 21, 2019

A Pennsylvania judge ordered a Montgomery County clerk to stop issuing marriage licenses to same-sex couples. As expected, the court determined that a court clerk does not have the authority to decide whether state rules are constitutional.

The big lesson: Despite monumental LGBT-friendly legal shifts on the horizon, court clerks don't have the right to preemptively decide the constitutionality of a law.

DIY Law = Not OK

The state's Health Department sued Orphans' Court of Montgomery County clerk, D. Bruce Hanes, back in August after he began issuing marriage licenses to same-sex couples. It seems Hanes was inspired to take matters into his own hands after the U.S. Supreme Court's historic DOMA ruling, reports Reuters.

He officially went rogue and began doling out licenses after Pennsylvania Attorney General Kathleen Kane in July announced that she would not defend the state against a federal lawsuit to overturn the state's ban on same-sex marriage.

But alas, even if your heart's in the right place, you can't go all vigilante and issue 174 same-sex marriage licenses in a state where gay marriage still isn't legal.

The Department of Health accused Hanes of acting in "clear derogation" of the state's marriage law, which defines the union as a civil contract between a man and a woman. Hanes countered with a standing argument, and argued the issue should be addressed by the state's highest court.

As expected, the court sided with the Department of Health, but summed it up with less "derogation" snark.

"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 bad one, constitutional or not," Pennsylvania Commonwealth Court President Judge Dan Pellegrini wrote in an opinion issued on Thursday. "Only courts have the power to make that decision."

Unanswered Questions

Unfortunately, the opinion did not address the questions being litigated in the federal court case, so we're nowhere closer to fleshing out the constitutional issue.

The ruling also does not address the validity of the licenses that have already been issued, leaving the couples that received the licenses in legal limbo. Given their hazy marital status, it wouldn't be surprising if the affected couples initiate a challenge in court to enforce the validity of the licenses.

Pennsylvania is among six potential states that advocates are zeroing in on to legalize same-sex nuptials in 2015 and 2016, reports Reuters. Thirteen U.S. states and the District of Columbia currently recognize gay marriage.

With the state poised to recognize same-sex marriage, perhaps Hanes should take the ruling as a "hold your horses" slap on the wrist.

Related Resources:

You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help

Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.

Or contact an attorney near you:
Copied to clipboard