Court Orders Pennsylvania County Clerk To Stop Issuing Same-Sex Marriage Licenses

In Commonwealth of Pennsylvania, Department of Health v. Hanes, (Comnw. Ct., Sept. 12, 2013) a Pennsylvania Commonwealth Court judge granted a writ of mandamus ordering Montgomery County court clerk D. Bruce Hanes to comply with all the provisions of Pennsylvania's Marriage Law.  The order stops Hanes from issuing marriage licenses to and accepting marriage certificates from same-sex couples. Hanes began to issue licenses to same-sex couples in July after the U.S. Supreme Court's Windsor decision. (See prior posting.) In ordering Hanes to comply with the state's ban on same-sex marriage, the court said:

Because only the General Assembly may suspend its own statutes and because only courts have the authority to determine the constitutionality of a statute, and because all statutes are presumptively constitutional, a public official “[i]s without power or authority, even though he is of the opinion that a statute is unconstitutional, to implement his opinion in such a manner as to effectively abrogate or suspend such statute which is presumptively constitutional until declared otherwise by the Judiciary.”... Based on the foregoing, it is clear that Hanes does not have standing to assert the purported unconstitutionality of the Marriage Law as a defense to the instant Petition.

The Pittsburgh Post-Gazette reports on the decision.