County Clerk Fights to Overturn Gay Marriage Ban
How Rudolph Clarke Helped a Montgomery County Clerk Research – Changing Laws
Most people don’t know the name of their County Clerk. Yet, D. Bruce Hanes, Montgomery County’s elected Register of Wills, has become a legend to some Pennsylvania residents.
Hanes has held the position of Register of Wills since January 2008. In July 2013, a lesbian couple contacted Hanes about applying for a marriage license in Montgomery County. Hanes discussed the request with Rudolf Clarke founding partner Mike Clarke and County Solicitor Ray McGarry. The attorneys researched the legality of the request based on recent Supreme Court decisions and statements by the Pennsylvania Attorney General. They also considered the impact that the request could have on the County.
Hanes, who has been married to his wife Rosemary for over 40 years, decided to issue a license to the couple despite a Pennsylvania law that defined marriage as a civil contract between one man and one woman. When the women decided to postpone their wedding, Hanes announced that he would grant marriage licenses to same-sex couples because he believed that the U.S. and Pennsylvania constitutions protected the right of all citizens to marry. He cited Article 1, Section 26 of the State Constitution:
“Neither the Commonwealth nor any political subdivision thereof shall deny to any person the enjoyment of any civil right, nor discriminate against any person in the exercise of any civil right.”
During the summer of 2013, Hanes issued marriage licenses to 174 same-sex couples. Although Hanes’ decision received local support, Hanes was sued by the Pennsylvania Department of Health.
On September 12, 2013, Commonwealth Court Judge Dan Pellegrini sided with the Department of Health and ordered Hanes to stop issuing marriage licenses to same sex couples. Hanes appealed the decision to the Pennsylvania Supreme Court. Hanes urged the court to use the opportunity to consider the constitutionality of the state’s ban and use the opportunity to rule on determine whether the state’s Defense of Marriage Act (DOMA) is legitimate. Hanes referred to the U.S. Supreme Court’s 2012 ruling which found the federal DOMA unconstitutional (Windsor v. U.S.) and Attorney General Kathleen Kane’s announcement that she would not defend Pennsylvania’s marriage law.
When the state countered that the constitutionality of the law was not an issue in the case, Hanes and his attorneys found a precedent dating to 1904 that allows public officials who are sued to invoke the constitutionality of the laws in question as a defense. He also challenged the state’s failure to respond to his argument of constitutionality as a sign that the law was without merit.
“By failing to respond to Hanes’ constitutional arguments, the department has not provided this court with a basis to find Pennsylvania’s DOMA constitutional — in effect conceding the law’s unconstitutionality.”
Several same-sex couples who received licenses from Hanes also challenged the constitutionality of Pennsylvania’s DOMA in state court.
On May 20, 2014 a U.S. federal district court judge ruled that the Commonwealth’s ban on recognizing same-sex marriage was unconstitutional. Pennsylvania dropped its case against Hanes and Hanes resumed issuing same-sex marriage licenses later that week. However, the validity of the licenses issued in 2013 is still in question.
Although Hanes’s appeal did not overturn Pennsylvania’s same-sex marriage ban, Hanes introduced the topic of marriage equality to the Pennsylvania public. The municipal law attorneys at Rudolph Clarke are proud of our part in this story.