Gay, lesbian couples, ACLU file lawsuit challenging Pa. gay marriage ban

The American Civil Liberties Union, on behalf of 23 Pennsylvania residents has filed a lawsuit in federal court in Harrisburg seeking to force the state to allow them to marry or recognize same-sex marriages performed in other states. Plaintiffs Dara Raspberry, left, and Helena Miller, with daughter Zivah Raspberry, of Philadelphia, were among the speakers two weeks ago during the lawsuit announcement at the state Capitol Rotunda. Dan Gleiter | dgleiter@pennlive.com

Advocates for same-sex marriage are viewing news that a Montgomery County court clerk has decided to buck state law and issue gay marriage licences as a sign of the mounting support for marriage equality in the state.

On Tuesday, Montgomery County Register of Wills Bruce Hanes issued a press release stating he would issue same-sex marriage license to anyone who walked into this office requesting one.

"This is further proof that Governor (Tom) Corbett should refuse to defend discrimination in Pennsylvania," said Alan Kennedy-Shaffer, president of Harrisburg Hope, a bipartisan advocacy group. " There is momentum for marriage equality and it will become law in Pennsylvania sooner than many people think."

The announcement from Hanes comes just two weeks after a lawsuit was filed in federal court challenging Pennsylvania marriage law.

“Based upon the advice of [my solicitor], my own analysis of the law and mindful of the Attorney General’s belief that Pennsylvania’s marriage laws are unconstitutional, I decided to come down on the right side of history and the law, and was prepared to issue a license,” Hanes said in a press release.

On July 9, the ACLU of Pennsylvania on behalf of 23 gay and lesbian plaintiffs, and two of their teenage children, filed a lawsuit in U.S. Middle District Court seeking to overturn Pennsylvania's Defense of Marriage Act and to have the state recognize same-sex marriages performed in other states.

Along with Corbett and Attorney General Kathleen Kane, the Whitewood v. Corbett lawsuit names the Washington County Register of Wills - Mary Jo Poknis - as one of the defendants. Register of Wills issue marriage licenses.

Kane swiftly announced she would not defend the state’s ban on same-sex marriages.

In the wake of the U.S. Supreme Court ruling striking down the federal ban gay marriage and a similar initiative in California, the decision from Hanes could have some ramifications.

"I seem to recall that 10 years ago this is how California got started - with the mayor of San Francisco who started issuing licenses," said state Sen. Rob Teplitz, D-Dauphin County. "Perhaps that's the thought process here. I don't know enough to either criticize or praise the decision but I think it's certainly evidence that this issue is moving forward very rapidly in Pennsylvania and will probably result in expansion of rights for same-sex couples sooner rather than later."

In a press release, t

he American Family Association of Pennsylvania said it reached out to Hanes to remind him that Pennsylvania law still defines marriage as only between one man and one woman and specifically asked him if he’d be willing to disobey the law and issue a marriage license to first cousins who were “in love.”

“Montgomery County’s Register of Wills is an attorney, thus should know the law, and as an elected row officer he has sworn to uphold the law,” said Diane Gramley, president of the Family Association. “Apparently he is following the lead of Attorney General Kathleen Kane who has said she would not defend Pennsylvania’s Defense of Marriage Act even though the job she was elected to fill includes defending the laws of the Commonwealth.”

Gramley urged Hanes to reread Pennsylvania’s Defense of Marriage Act.

“If he can’t uphold the law and issue marriage licenses only to those who can legally marry in Pennsylvania, he needs to tender his resignation,” she said.

Teplitz, an advocate for gay marriage, said he thought the issue would ultimately be better addressed in the courts than the Legislature, “as a matter of political reality.”

“I do have concern that we need to respect the way it’s done,” he said. “I don’t want to show respect to the current law because I think the current law is wrong but I think you have to be careful about performing an inappropriate task in government as a way to address some other inappropriate issue.”

A spokesman for Corbett’s general counsel said his office did not engage in hypothetical discussions.

“We don’t have any information that any action has been taken,” said Nils Hagen-Frederiksen. “It’s difficult for me to respond to something that hasn’t happened.”

The General Assembly has at least three pieces of legislation calling for the legalization of gay marriage or civil unions.

Meanwhile, State Rep. Daryl Metcalfe (R-Butler) revived efforts to reintroduce legislation aimed at a state constitutional amendment to define marriage as between one man and one woman. Metcalfe's legislation would also outlaw same-sex civil unions and domestic partnerships.

Current Pennsylvania law defines marriage as being between a man and a woman.

Mary Catherine Roper, an attorney with the ACLU of Pennsylvania, refrained on commenting whether Hanes was poised to violate his duty or laws of the state.

“We don’t have any opinion whether he’s got the authority to do that,” she said. “On other hand any time a public official stands up to fairness we want to cheer.”

The U.S. Supreme Court in June struck down the federal Defense of Marriage Act and California’s initiative banning same-sex marriage. At the moment, neither ruling impacts Pennsylvania’s 20-year ban on gay marriage.

“Attorney General Kathleen Kane following in Obama’s footstep got the ball rolling here in Pennsylvania for equality,” Kennedy-Shaffer said. “That momentum is only going to build.”