Montgomery County has asked Pennsylvania’s Commonwealth Court to dismiss a lawsuit aimed at stopping the county from issuing marriages licenses to same-sex couples.
The county Register of Wills and Orphan’s Court, D. Bruce Hanes, began issuing the certificates last week, in spite of a state ban on same-sex marriage from the mid-1990s.
The state Department of Health filed a legal challenge to his activities Tuesday, under the rubric that it is charged with overseeing the collection of vital statistics, including marriages.
The department does not have standing to bring the suit and the Commonwealth Court does not have jurisdiction, according to county solicitor Ray McGarry, who said the matter should be addressed in state Supreme Court.
The response further argues that, “Any writ … issued by this court would necessitate the register of wills denying the alienable and basic civil right to marry based solely on the gender of the applicants in violation of his oath as an officer of the court and the United States and Pennsylvania Constitutions.”
On Friday, McGarry responded to critics, including one of the county’s own commissioners, who says that the register of wills should not have started issuing licenses before the issue was settled by the courts.
A county couple approached the register of wills asking if they could get married.
“He was left in a dilemma,” said McGarry, “where there was a statute that said ‘can’t do something’ and the constitution, which both he believes and the attorney general had stated that she believed was unconstitutional.”
Last month, state Attorney General Kathleen Kane, a Democrat, refused to defend the state’s marriage law in federal court against a challenge by the ACLU. She said she believes it violates the state constitution.
A representative of the Department of Health declined to comment on the ongoing legal case against Montgomery County.
Last week, Loreen Bloodgood and Alicia Terrizzi became the first same-sex couple in Pennsylvania to wed. She says they are aware legal challenges will probably follow.
“We feel that we made a statement with what we did and we’re happy that we did it,” Bloodgood said.
Hanes has continued to accept applications for marriage licenses since the suit was filed. As of the end of the day on Thursday, the county said it has issued a total of 49 to gay and lesbian couples; of those, 12 had been completed and returned.
The county’s Democratic Commissioners Josh Shapiro and Leslie Richards support Hanes’ issuing the licenses. Republican Commissioner Bruce Castor is opposed.