Battle Over Marriage Equality in Pennsylvania Heats Up

One of the latest fronts in the nationwide battle for marriage equality is the 6th largest state in the country, Pennsylvania. Openly gay legislator Brian Sims has introduced a bill to legalize marriage equality in the state. And the state is being sued by a number of same-sex couples who wish to marry but can not do so because of a homophobic marriage statute. The Attorney General has refused to defend the statute, and one particular county, Montgomery County, started issuing marriage licenses about a week ago.

Today comes word that the state Department of Public Health is suing Montgomery County to prevent it from issuing marriage licenses to same-sex couples. Apparently, marriage licenses have been issued to 31 same-sex couples so far.

However, Montgomery County says that it is not going to stop issuing marriage licenses to same-sex couples, according to Philly.com:

"While it comes as no surprise that the Corbett Administration has filed an action seeking to enjoin marriage equality in Montgomery County, the petition filed today in Commonwealth Court by the state Department of Health has serious flaws," county Solicitor Ray McGarry said. "Montgomery County will be filing a response shortly. In the meantime, the Register of Wills office will continue to issue marriage licenses to same-sex couples."

[...]

The lawsuit against [Mongtomery County Registrar] Hanes and the letter to Kane's office signal the first blows by the Corbett administration to subdue what could become growing challenges to Pennsylvania's version of the federal DOMA law. The Health Department lawsuit could become an important precedent to determine whether public officials have the right to interpret the legality of the state's Marriage Law on their own.

[...]

The Health Department lawsuit claims he is not only derelict in his duty to uphold state and local laws, but also is misleading those couples he issued licenses to. "It appears that same-sex couples are proceeding with the marriage ceremonies that are not permitted by Pennsylvania law, marriage certificates are being illegally filed, and the same-sex couples are left to believe erroneously that they have entered into a valid marriage," the suit said.

Unfortunately, I think that the Pennsylvania Department of Public Health is probably going to win this battle (but lose the war). A very similar thing happened in California nearly a decade ago, and the 4,000 marriages that occurred when San Francisco County started issuing marriage licenses were eventually invalidated and nullified. However, Pennsylvania's statute does violate the federal constitution guarantees of equal protection and substantive due process and sooner rather than later the Pennsylvania Department of Health will be registering marriage licenses issued to same-sex couples.

Until that day, though, it is useful to raise awareness about the issue and I agree that local officials who believe that their state's marriage law is unconstitutional should speak out about it, but the correct legal action is to join the lawsuit striking it down, not ignoring the law on the books, regardless of how odious it is.