In a
34-page opinion issued Thursday morning, the Hon. Dan Pelligrini of the Commonwealth Court of Pennsylvania has ordered Montgomery County register of wills Bruce Hanes to cease and desist from issuing marriage licenses to same-sex couples, which he had begun doing last month in defiance of state law. The ruling does not touch upon the validity of the 118 licenses issued and certified to-date, which presumably will be resolved either (a) when one of said couples is denied state benefits, and chooses to litigate, or (b) through a
separate frontal assault on PA's discriminatory marriage law recently filed by the ACLU of Pennsylvania and presently in the early stages of litigation.
The decision can be summarized as follows:
- This is the right Court to hear this case, and the Pennsylvania Department of Health has standing to file this suit.
- The register of wills performs ministerial duties only, and has no authority to impose his own constitutional interpretations onto his role.
- Nor can he raise the alleged unconstitutionality of Pennsylvania's marriage laws as a defense to this action.
At bottom, writes Judge Pellegrini:
Until a court has decided that an act is unconstitutional, Hanes must enforce the law as written, and it is not a defense to a mandamus action the law may be unconstitutional. A court can arrive at the conclusion....
Governmental officials carry out the functions assigned to the office and no more because when decision are reached that follow these and other constitutional procedures, it fosters acceptance of a statute or decision even by those who even strongly disagree. When public official don’t perform their assigned tasks, it creates the type of “complication” caused by the United States Attorney General decision not to defend DOMA, which led the Supreme Court of the United States in Windsor to spend as much time addressing that “complication” as it did on the merits of the case. In this case, a clerk of courts has not been given the discretion to decide that a law whether the statute he or she is charged to enforce is a good idea or bad one, constitutional or not. Only courts have the power to make that decision
... Because only the General Assembly may suspend its own statutes and because only courts have the authority to determine the constitutionality of a statute, and because all statutes are presumptively constitutional, a public official “[i]s without power or authority, even though he is of the opinion that a statute is unconstitutional, to implement his opinion in such a manner as to effectively abrogate or suspend such statute which is presumptively constitutional until declared otherwise by the Judiciary.”
It is not yet known whether Hanes will appeal this to the Pennsylvania Supreme Court.
According to Hanes,
“I am more convinced today that I am on the right side of history,” said Hanes, who has issued 174 such licenses. “Regardless of how my particular case is resolved, I believe the case for marriage equality continues to move forward, and I can only hope that my decision helped that effort.”