A Pennsylvania judge has ordered Montgomery County Registry of Wills Bruce Hanes to stop offering marriage licenses to same-sex couples in violation of state law. Hanes, arguing that Pennsylvania’s ban on same-sex marriage is unconstitutional, began issuing the licenses in late July. Since then, 174 couples have gotten licenses, including four as recently as Wednesday.
The decision does not address the constitutionality of Pennsylvania’s law, and in fact, the judge specifically states that Hanes does not have jurisdiction in this case to challenge it:
Governmental officials carry out the functions assigned to the office and no more because when decision are reached that follow these and other constitutional procedures, it fosters acceptance of a statute or decision even by those who even strongly disagree. When public official don’t perform their assigned tasks, it creates the type of “complication” caused by the United States Attorney General decision not to defend DOMA, which led the Supreme Court of the United States in Windsor to spend as much time addressing that “complication” as it did on the merits of the case. In this case, a clerk of courts has not been given the discretion to decide that a law whether the statute he or she is charged to enforce is a good idea or bad one, constitutional or not. Only courts have the power to make that decision.
The fate of the 174 couples remains unclear. They could presumably file their own legal motion seeking to have their licenses be made valid under state law, but those licenses could well be completely nullified given Hanes was found to be in dereliction of his duty when he issued them.