Some State Clerks Breaking Law, Issuing Phony Same-Sex Marriage Licenses
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In spite of clear Pennsylvania law to the contrary, a Pennsylvania clerk recently started issuing invalid same-sex marriage licenses, abdicating his duty to uphold the law. Yesterday, a state court ordered him to stop. In New Mexico, a similar situation has also occurred. Activists in various states are encouraging rank-and-file government workers to betray their offices, putting politics ahead of their responsibilities to citizens of their states. Is this sort of sedition coming to your state?
Whatever one’s views on same-sex marriage, the state of the law following the U.S. Supreme Court’s opinion last term in United States v. Windsor is reasonably clear: For the federal government to determine the marital status of same-sex couples, it must look to state law. Certainly, there are looming choice-of-law questions: When a same-sex couple gets married in a state that recognizes such marriages moves to a state that doesn’t, for example, how should the federal government decide which state law to apply? Although new legal challenges have been filed, unless and until courts of law say otherwise, it is incontrovertible that states retain their traditional authority to define marriage as they wish. If a state retains the traditional definition of marriage, the presumption is that this is entirely constitutional.
Yet the Constitution was of no interest to one county official in suburban Philadelphia, where marriage is defined as between one man and one woman. Following the Windsor decision, D. Bruce Hanes, a Montgomery County registrar, issued almost 200 sham marriage licenses to same-sex couples. Rather than uphold Pennsylvania law, Hanes took it upon himself to betray his office and violate Pennsylvania state law in furtherance of his own idiosyncratic political beliefs.
Now, however, a Pennsylvania court has issued a writ of mandamus, ordering Hanes to stop issuing the sham licenses and obey Pennsylvania’s marriage law. In Commonwealth of Pennsylvania, Department of Health v. Hanes, issued Thursday, the court held that Hanes had no authority to independently opine on the constitutionality of the Pennsylvania marriage law:
Unless and until either the General Assembly repeals or suspends the Marriage Law provisions or a court of competent jurisdiction orders that the law is not to be obeyed or enforced, the Marriage Law in its entirety is to be obeyed and enforced by all Commonwealth public officials.
In essence, Hanes is an administrative functionary with no business breaking the law in the service of a political agenda. It remains to be seen if Hanes violates the court order (and risks imprisonment for contempt of court) and whether Hanes keeps his job in the face of his abdication of his public duties. As yet, Hanes has suffered no consequences for his actions.
Ironically, those hurt the most in this situation are likely the same-sex couples with sham marriage licenses in the state of Pennsylvania, who have spent time and money obtaining pieces of paper that have no legal relevance. These couples are in a worse position than if they had never met Hanes. As the spokesman for the Pennsylvania Office of General Counsel noted:
To the extent that there’s any confusion about the documents that may have been issue[d] caused by Mr. Hanes[, t]hat’s the issue he has generated.… That’s confusion that he is responsible for.
The odds are slim Hanes will accept responsibility for this confusion.