(Harrisburg) -- A judge is stopping a Montgomery County court clerk from issuing marriage licenses to same-sex couples, saying it was a clear violation of his legal authority.
Commonwealth Court Judge Dan Pellegrini has issued an order that said county Register of Wills Bruce Hanes didn't have the power to decide on his own whether the same-sex marriage ban violates the state constitution.
Hanes issued four more licenses to same-sex couples on Wednesday, bringing the total number to 174.
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.
Excerpts from today's Commonwealth Court ruling:
-- Unless and until either the General Assembly repeals or suspends the Marriage Law provisions or a court of competent jurisdiction orders that the law is not to be obeyed or enforced, the Marriage Law in its entirety is to be obeyed and enforced by all Commonwealth public officials.
-- Hanes has admittedly failed to comply with his mandatory ministerial public duty under the Marriage Law by issuing marriage licenses to same-sex couples. . Even if Hanes is correct in his view that portions of the Marriage Law are unconstitutional, ... the proper method for those aggrieved is to bring a separate action in the proper forum raising their challenges to the Marriage Law.
-- 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. ... Until a court has decided that an act is unconstitutional, Hanes must enforce the law as written.
-- The (state marriage statute) ... , outlining the applicable requirements and procedure for the issuance of a marriage license, does not authorize Hanes to exercise any discretion or judgment with respect to its provisions. Rather, the Marriage Law specifically requires Hanes to furnish and use the appropriate forms and to issue the license if the statutory requirements have been met.
--There are no obstacles preventing those adversely affected by the provisions of the Marriage Law or putatively possessing rights based on Hanes' actions ... from asserting their own rights in an appropriate forum.
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