Montgomery County Solicitor Raymond McGarry has prepared an
appeal to the Pennsylvania Supreme Court on behalf of Register of Wills D.
Bruce Hanes, who was ordered by a Commonwealth Court judge last month to stop
issuing same-sex marriages to Pennsylvanians, in defiance of a state ban.
Hanes issued a total of 174 licenses between announcing his decision on July 23 and Sept. 12,when Commonwealth Court Judge Dan Pellegrini handed down the decision in response to a lawsuit from the Pennsylvania Department of Health.
In explaining his decision, Hanes stated that he took an oath to uphold the U.S. and Pennsylvania constitutions, citing the right granted to men to “pursue their own happiness."
According to Pellegrini’s ruling, Hanes does not have the power to decide the constitutionality of Pennsylvania's same-sex marriage ban on his own, and his action was in violation of his legal authority.
While Hanes said he would comply with the order and stop issuing licenses, McGarry announced on Sept. 17 that he would file an appeal based on the decision.
The questions presented in the appeal include whether the Commonwealth Court was incorrect in stating that it had original jurisdiction, whether the Commonwealth Court was incorrect in finding that the Department of Health had standing to bring the action, and whether the Commonwealth Court was incorrect in finding that the Department of Health met its burden in establishing its right to force Hanes to stop issuing the certificates.
According to the appeal, the Department of Health did not meet its burden because the issuance of marriage licenses is discretionary, not ministerial, the Health Department suffered no harm from the act, and that it did not seek all other remedies before the lawsuit.
Additionally, the appeal states that the Commonwealth Court’s refusal to permit the debate over the constitutionality of the ban on same-sex marriage was incorrect, as the “trend of authorities establishes the unconstitutionality of the Marriage Law’s definition of marriage” between a man and a woman.
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