The battle for marriage equality in Pennsylvania just gained momentum from an unexpected source: a court order to stop issuing same-sex marriage licenses.  On September 12, 2013, a Pennsylvania Commonwealth judge ordered a local official to stop issuing marriage licenses to same-sex couples.  The order was directed at D. Bruce Hanes, a Register of Wills in Montgomery County, who issued 174 such licenses over the course of six weeks beginning on July 24, 2013.  The Court found that Hanes’ actions violated Pennsylvania’s Marriage Law, which defines marriage as a civil contract between “one man and one woman.”  Same-sex marriage has been banned in Pennsylvania since 1996.

For his part, Hanes argued that the Supreme Court’s holding in United States v. Windsor rendered Pennsylvania’s Marriage Law unconstitutional.  As a brief summary of the facts in Windsor, the state of New York currently recognizes same-sex marriages, but when the survivor of a same-sex couple went to claim federal estate tax exemption as a surviving spouse, she was barred from doing so by the Defense of Marriage Act (DOMA).  DOMA was a federal law that: (1) allowed states to refuse to recognize same-sex marriages performed under the laws of other states; (2) defined “marriage” as a “legal union between one man and one woman”; and (3) defined spouse as “a person of the opposite sex.”  In Windsor, the Court struck down DOMA as an unconstitutional deprivation of equal liberty since it targeted the very class of persons that New York state law sought to protect.  The Court noted that DOMA would create an odd scheme under which the marriage of a same-sex couple would be recognized by a state government but not by the federal government.

In the present case, Commonwealth Court President Judge Dan Pellegrini disagreed with Hanes’ argument.  He found that, regardless of one’s viewpoint on same-sex marriage, “Hanes did not have the power to decide on his own that [Pennsylvania’s] law is unconstitutional.” At the end of his opinion, Judge Pellegrini stated:

The proper method for those aggrieved is to bring a separate action in the proper forum raising their challenges to the 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.

Indeed, although the Supreme Court struck down DOMA in Windsor, it also stated that the definition and regulation of marriage is a matter reserved to the states.

The unresolved issue that arises is what to do about the 174 same-sex couples to whom Hanes issued licenses.  Hanes plans to appeal Judge Pellegrini’s decision, but legal commentators note that overturning Judge Pellegrini’s decision would set a dangerous legal precedent in which state officials could decide which laws they want to follow.  However, as other legal commentators note, those 174 couples may be the very solution.  If same-sex couples want to sue to enforce various marital rights (e.g., tax benefits), they need to have standing (i.e., prove that they were harmed in some way).  If Pennsylvania decides not to recognize the marital status of these couples, such a decision would allow those couples to bring a suit that attacks the constitutionality of Pennsylvania’s Marriage Law on its face.

This is not the only challenge to Pennsylvania’s Marriage Law that is currently pending.  On July 9, 2013, the American Civil Liberties Union (ACLU) filed a suit in federal court on behalf of 21 Pennsylvanians who sought to marry in Pennsylvania or to have the State recognize their out-of-state marriages.  Two days later, on July 11, 2013, Attorney General Kathleen G. Kane announced that she would not defend Pennsylvania’s Marriage Law.  However, Tom Corbett, the Republican governor of Pennsylvania and the very person who led the charge against Hanes, announced that his administration would seek to enforce it.

Since there is no longer a federal ban on recognizing same-sex marriage, at least one United States district court judge (Judge C. Darnell Jones II for the Eastern District of Pennsylvania) has interpreted federal statutes in a light most favorable to same-sex marriage.  In Cozen O’Connor v. Tobits, a decision that was initially suspended pending the Supreme Court’s decision in Windsor, Judge Jones found that the federal Employee Retirement Income Security Act was gender neutral.  Judge Jones’ decision allowed one Jean Tobits to collect benefits on behalf of her deceased same-sex spouse.

Like the aftermath of so many landmark cases before it, the time period following Windsor will be critical in terms of how state and federal courts decide to apply the Supreme Court’s holding, as well as how state legislatures respond.  In the northeastern United States, Maine, New Hampshire, Vermont, Rhode Island, Massachusetts, Connecticut, and New York have all legalized same-sex marriage.  Same-sex marriage is also legal in the District of Columbia and six other states.

It is time for Pennsylvania and other similarly situated states to revisit their marriage laws.  As Hanes stated following the Judge Pellegrini’s decision, “Several weeks ago when I made the decision to begin issuing marriage licenses to same sex couples, I said I believed I was coming down on the right side of history.  After having issued 174 marriage licenses since then and having talked with many of those couples, I am more convinced today that I am on the right side of history.”