Why the health department is involved in Montgomery County marriage equality lawsuit
Pennsylvania may be the only northeastern state without gay marriages or civil unions, but that didn’t stop Montgomery County Register of Wills D. Bruce Hanes, who oversees granting marriage licenses in the suburban Pennsylvania County, from granting 34 marriage licenses to same-sex couples over the past two weeks.
The party didn’t last long. On Tuesday, the state of Pennsylvania’s health department said it was suing Hanes for his illegal action.
“There is no limit to the administrative and legal chaos that is likely to flow from the clerk’s unlawful practice of issuing marriage licenses to those who are not permitted under Pennsylvania law to marry,” reads the state’s lawsuit. “Ours is a government of laws, not one of public officials exercising their will as they believe the law should be.”
Fair enough. But why the health department?
Let’s start with the state Judicial Code. It states the “Commonwealth Court shall have original jurisdiction of all civil actions or proceedings…[b]y the Commonwealth government.” And, so goes the suit, since the health department is part of the government, they can have original jurisdiction.
That’s just part of it, though. The suit also claims Hanes “risks causing serious and limitless harm to the public throughout the Commonwealth and beyond”—though doesn’t expand upon that.
Also, the Pennsylvania Department of Health is the state department responsible for both marriage and divorce certificates.
The lawsuit was filed by the department’s Chief Counsel Alison Taylor and is attempting to get the county to comply with state law in Pennsylvania—which says gay marriage is illegal. Hanes said he won’t stop granting marriage licenses.
And why isn’t Attorney General Kathleen Kane involved here at all — and why wasn’t her name even mentioned?
“There’s a provision — and this is what Kane used when she bowed out of defending the marriage act — that, if for some reason, the attorney general’s office is unable to defend such a law then the governor can do so, and is obliged to do so. The state has an obligation to defend the laws that it passes and attempts to enforce. But there is that fuzzy area as to who will be responsible for, in effect, defending in court,” says Dr. Randall Miller, a history professor at Saint Joseph’s University.
“The Corbett Administration, of course, is going to defend the law vigorously, because it agrees with the law, and I think it also believes in the situation that it must assert, state and demonstrate its capacity to enforce the laws that it insists are not only legitimate, but necessary,” he continues. “It’s a policy play here, as well. Basically, if the Corbett Administration does nothing, they’ll be accepting the arguments of Bruce Hanes, who says the law is unconstitutional. … [The administration] doesn’t want to concede that argument, not only for reasons of principle, but also for reasons of practice. If you let this pass, then people can just willy-nilly choose which laws they obey, and you could end up with no government at all.”
Strangely, Pennsylvania is one of the only states in the country that does not have a gay marriage or civil union law, and also doesn’t have a constitutional ban on marriage equality. Though politicians on both sides of the issue have attempted to change that, and we do have a Defense of Marriage Act, which is routinely cited in the suit against Hanes. The health department’s suit is one of several legal actions currently going on in the commonwealth with regard to marriage equality.
This article has been updated to include comments from Dr. Miller.
Follow Randy on Twitter: @RandyLoBasso