When the Montgomery County Register of Wills issued five marriage licenses to same-sex couples on Wednesday, it raised an obvious question: Are those documents legal?
The answer to that question, says Jill Engle, a law professor at the Penn State Dickinson School of Law, is intertwined with that of another question: Is Bruce Hanes, the Register of Wills, within legal rights to issue the licenses?
“If his action in issuing the marriage licenses is not legal, it’s obvious that the licenses themselves can’t be enforced or recognized,” Engle said.
Pennsylvania law stipulates that not only is marriage between a man and a woman, but that same-sex marriages shall be void.
The situation presents a true collision of legal reality.
“You have people with valid marriage licenses, according to the county clerk and resulting marriage certificates, and those are arguably legal sound documents because they were issued by government officials, yet you have a state statute that clearly states that type of marriage is not valid in Pennsylvania,” Engle said. “It’s a messy, very challenging personal situation for someone to be in, which is what makes it remarkable that these folks were willing to be guinea pigs and take that chance.”
Montgomery County Register of Wills Bruce Hanes
Hanes stands by his decision to defy state law, explaining that he was elected to uphold the state Constitution, which guarantees equal rights protection to all citizens. The state’s Defense of Marriage Act, as a result, he said, is unconstitutional.
“I think I’m on the right side of history,” Hanes said. “I believe I’m on the right side of the constitution and the law.”
Montgomery County District Attorney Risa Ferman said that based upon current state law, a same-sex marriage license is not legally valid.
“As a prosecutor, I value the rule of law and look to the justice system to resolve disputes,” said Ferman, a Republican. “While I am bound to uphold the law, I do not have jurisdiction over every law of the Commonwealth.”
The remedy for issuing an invalid marriage license, however, does not include intervention by the office of the district attorney, Ferman said.
“The Register of Wills cannot change the laws of this Commonwealth by simply ignoring them,” she said. “If that change comes, it will be through Pennsylvania courts or the legislature.”
Attorney General Kathleen Kane would not comment on the legality or propriety of what Hanes is doing.
“By statute, the Attorney General may only give legal opinions at the request of a Commonwealth Agency,” said Joe Peters, a spokesperson for Kane’s office.
Kane has declared the state DOMA law unconstitutional and will not defend it in court. Kane and Gov. Tom Corbett are among the defendants in a federal lawsuit filed by the American Civil Liberties Union, challenging the 1996 statute, and seeking state recognition of gay marriages performed in other states.
Engle says Hanes is doing what she suspects other clerks will eventually do: In the absence of any police power or state authority having the purview to step in and stop to it, they are going to roll the die and say they have the freedom to grant the licenses.
“It’s a remarkable intersection of legal and ethical action,” Engle said. “It’s a pretty momentous occasion as to public policy. You see public policy being formed in these county offices where real people are walking in to get the sort of action that is deeply important in their personal life. Regardless of what legislators did years ago with DOMA, at the ground level you have the capability of county clerk to do what he feels is the right thing.”
The legality of the marriage licenses, Engle said, will more than likely be tested in court, which is exactly what has happened in states such as Massachusetts and California.
Objections to whether a marriage is legal tends to come up almost exclusively in the context of divorce, Engle explained.
Gay and lesbian couples over the years have encountered legal problems when one of them files for divorce and is told that the marriage - often performed out of state - is not recognized by the state, leaving the couples in a legal limbo.
“The whole divorce case becomes dismissed,” Engle said. “It’s not possible to litigate.”
That’s a practical problem for the couples, but the efficacy of these cases is almost always political, Engle said.
If the ACLU lawsuit is successful, she said, it is entirely possibly these marriages could be recognized and the court could rule the statute unconstitutional and grandfather other gay marriages.
“That I think is likely the hope of the people getting married and the clerk that is issuing these licenses,” Engle said.
Indeed, even the U.S. Supreme Court, which in June struck down the federal Defense of Marriage Act on the grounds that it violated equal rights protection to same-sex couples, stopped short of ruling on gay marriage rights. The high court opined that DOMA was unconstitutional, but it didn’t articulate on the constitutional rights of same-sex marriage.
That gets back to Engle’s point about divorce court, and the tests will likely be carried out couple by couple, case by case and probably not for years.
Ellen Toplin who along with girlfriend of 22 years, Charlene Kurland, applied for a marriage license in Montgomery County on Wednesday, said one of the first things they will do shortly after their wedding two weeks from now, is contact their insurance company to request equal treatment.
“Once we get married we will go back to our long-term insurance carrier and challenge them to give us the discounts that we weren’t afforded because Pennsylvania didn’t recognize our partnership, Toplin said. “That is one situation that we will challenge, it’s not the discount, it’s the recognition of having equality.”