A state court’s order to stop a Montgomery County court clerk from issuing marriage licenses to same-sex couples leaves nearly three dozen couples with a decision to make.
Commonwealth Court Judge Dan Pellegrini on Thursday issued an order that said Montgomery County Register of Wills Bruce Hanes was not within his authority to issue such licenses because it defies state law defining marriage as between a man and a woman.
The state Health Department took him to court after he began issuing them in July. That was after the U.S. Supreme Court threw out portions of the federal Defense of Marriage Act and state Attorney General Kathleen Kane called the Pennsylvania ban on same-sex marriage unconstitutional.
The decision dismisses the argument of 32 same-sex couples who received licenses from Hanes and hoped to join the case.
Pellegrini wrote in his order that the more appropriate way to challenge the constitutionality of Pennsylvania’s gay marriage ban would be for the couples affected to file their own suit against it.
Their lawyer, Bob Heim, says they could try to join a separate case in federal court.
“We can start an action in the Commonwealth Court asking the Commonwealth Court to declare the definitional provision of the marriage act as unconstitutional or we could join the federal action or we could just rely on the federal action,” Heim said.
Hanes issued four more licenses to same-sex couples on Wednesday, bringing the total number to 174 — in spite of state law defining marriage as between a man and a woman.
Heim says the ruling does not render their licenses invalid.
“Since the court did not make a determination that the licenses already issued were invalid and specifically declined to do that, our view is that they are valid,” Heim said.
The governor’s Office of Attorney General disagrees, and argues the licenses were never validly issued to begin with.
Pennsylvania’s marriage law is already being challenged in federal court by a group of couples represented by the American Civil Liberties Union.
Hanes said in a statement that he is considering the possibility of an appeal.
“Regardless of how my particular case is resolved, I believe the case for marriage equality continues to move forward,” Hanes said, “and I can only hope that my decision helped that effort.”
The Associated Press contributed to this report.