First Posted: 8/22/2013
HARRISBURG — A Pennsylvania court laid out the issues Thursday to be argued at a hearing in two weeks about a suburban Philadelphia court clerk’s decision to issue marriage licenses to same-sex couples.
The Commonwealth Court released an order in the case brought by the state Health Department against Montgomery County Orphan’s Court Clerk Bruce Hanes, limiting the arguments set for Sept. 4 in Harrisburg to five topics.
The court wants lawyers to focus on whether the court has jurisdiction, given that Hanes is a judicial officer.
Other questions are whether issuing marriage licenses are a judicial act and whether the constitutionality of Pennsylvania’s marriage law can be raised as a defense in the case.
Also at issue are whether the Department of Health has standing to sue, and if not, the effect of Democratic Attorney General Kathleen Kane’s delegation of defense of the law to Republican Gov. Tom Corbett’s legal staff.
A spokesman for Corbett’s Office of General Counsel said Thursday the court order was under review, and the governor’s lawyers will be prepared to present their case at the hearing.
Hanes’ office referred questions to a county spokesman, who declined to comment. A court filing by his lawyers earlier this week argued the case should be dismissed or transferred to the state Supreme Court.
Hanes’ lawyers said that Kane’s decision to let Corbett’s lawyers defend a separate federal lawsuit challenging the state’s same-sex marriage ban does not mean that they also meet legal requirements to launch the Commonwealth Court case.
“Without some evidence that the attorney general’s office has affirmatively elected or refused not to enforce the Marriage Law, the Office of General Counsel lacks any authority to bring the department’s petition,” Hanes’ lawyers argued.
As of Wednesday, Hanes had issued 140 licenses to same-sex couples, and 72 have recorded marriages.
Hanes began issuing the licenses July 24, after the U.S. Supreme Court struck down parts of the federal Defense of Marriage Act and Kane said she would not defend a state law she considers to be unconstitutional against a challenge filed in federal court July 9.
In a court filing, the Health Department said Hanes’ actions would produce chaos and said he and other officials could be subject to misdemeanor charges.
But Hanes’ lawyers responded that the Health Department didn’t describe what harm might befall the department. “Since the harm must be specific and particularized to the litigant, the department has failed to meet its burden to show that it has a clear legal right to the relief it is seeking,” they argued.
The federal lawsuit remains in the preliminary stages, with a scheduling conference planned for Sept. 30.