Montco again defends its same sex marriage stand

Source: The Philadelphia InquirerAug.self storage 20--In a formal brief defending its stand on same sex marriage, Montgomery County again contended Monday that the state's ban on such unions is unconstitutional and, as such, the issue should be settled by the state Supreme Court.The brief, filed in Commonwealth Court in response to a state lawsuit, set the stage for an expedited review of the legality of more than 100 marriage licenses issued to gay and lesbian couples in the last month.The Commonwealth Court on Aug. 6 gave both the state and the county a week to file formal arguments in the case. No hearing has yet been scheduled, but the court promised to hear the case "on an expedited basis."Pennsylvania's marriage law, known as DOMA, defines marriage as between one man and one woman. On July 24, Montgomery County Register of Wills and Clerk of Orphans Court D. Bruce Hanes announced that he believed the law to be unconstitutional, and would not deny marriage licenses to same-sex couples.Since then, 137 gay and lesbian couples from across the state have obtained marriage licenses in Norristown, and 66 have carried out weddings.Gov. Corbett's Office of General Counsel, which filed the lawsuit on behalf of the State Department of Health, says those couples, their wedding officiants and Hanes could be charged with misdemeanors for violating DOMA.The county's latest brief is not substantially different from earlier arguments, but expands on the theory that the Department of Health lacks jurisdiction and the law constitutionality.In the strongest language to date, county solicitors say the question of constitutionality "is so inherently related to the claims against [Hanes] that it must be addressed before a mandamus can be granted."The state's briefs have largely avoided the question of constitutionality, instead arguing that Pennsylvania's marriage law 迷你倉s "clear" and "unequivocal" and that Hanes himself admits to breaking it.Citing a gay marriage case from 2004, Corbett's attorneys wrote: "The Supreme Court of California refused to consider whether the law was unconstitutional ... and instead summarily ordered city and county officials to comply" with the same-sex marriage ban passed by that state's legislature.Montgomery County attorneys countered that under California's Constitution, "administrative agencies were expressly prohibited from making declarations as to the constitutionality of statutes." Pennsylvania has no such provision, they wrote.The county further noted that although the California court halted same-sex marriages, it also issued an order allowing separate litigation to decide whether that law was constitutional.While same-sex marriage supporters are hoping for a weighty constitutional discussion, it's also possible Pennsylvania's case could hinge on bureaucratic minutia -- such as whether the act of issuing a marriage license is "ministerial," part of the executive branch of government, or "deliberative," part of the judicial branch.The state asserted in its Aug. 12 petition that "the county clerks of court and prothonotaries are creatures of statute who derive their powers and duties from the General Assembly, not the courts."Attorneys for Hanes called that argument "wholly without merit." They note that Hanes is not a court clerk or a prothonotary, but a clerk of orphans court."The respondent is not merely a rubber stamp, handing out forms and issuing licenses as a matter of course. Instead, he must carefully weigh all of the evidence ... and only after 'proper' consideration issue a marriage license," county solicitors wrote.Copyright: ___ (c)2013 The Philadelphia Inquirer Visit The Philadelphia Inquirer at .philly.com Distributed by MCT Information Services文件倉