Capitol reporter Mary Wilson covers Pennsylvania politics and issues at the Pennsylvania state capitol.
A state judge heard arguments Wednesday in the case involving a county court official issuing marriage licenses to same-sex couples.
The state is trying to stop the distribution of marriage licenses to gay and lesbian couples in Montgomery County. Gov. Corbett's general counsel are arguing the case on behalf of the Department of Health, which keeps a registry of marriages in Pennsylvania.
They say allowing Register of Wills D. Bruce Hanes to issue licenses to gay and lesbian couples violates state law defining marriage as between one man and one woman. Such an allowance, they add, opens up the possibility of uneven enforcement of laws.
"The key question here is, who decides?" said Office of General Counsel spokesman Nils Hagen-Frederiksen. "Do the courts decide constitutionality of issues or do we have a system where individual public officials anywhere in the state decide based on their own personal opinions which laws to uphold and which laws to reject?"
The judge presiding over the case, Commonwealth Court President Judge Dan Pellegrini, acknowledged the potential for unevenly enforced laws. "I'm looking at the ramifications," he said. "There are a lot of constitutional offices in this state."
Raymond McGarry, Montgomery County's lawyer, said Hanes finds the state law unconstitutional, and in a wider context than his own opinion.
"He didn't just willy-nilly decide that this was unconstitutional," McGarry said, pointing to other state courts that have ruled against own same-sex marriage bans. "Kathleen Kane, the attorney general of this commonwealth, has decided that this law is unconstitutional. So this was not a decision made out of thin air."
Also at issue is whether the case is better suited to the state Supreme Court, and whether the commonwealth has legal standing to bring a case in the absence of the state attorney general, who is not pursuing it.
Alongside questions of constitutionality, jurisdiction, and standing is the issue of adding parties to the lawsuit. 32 same-sex couples, who have received marriage licenses from Hanes, have asked the judge to intervene on the side of the defense (with Montgomery County). Their lawyer argued Wednesday the couples have standing because the outcome of the case directly affects them.
Pellegrini repeatedly asked the lawyer for the intervenors, if he wanted to take on the constitutionality of Pennsylvania's marriage law, why not file an action directly against it.
"The problem with that is we are interested in this case," said Bolton Winpenny, a computer programmer, who married his partner in Harrisburg shortly after receiving a marriage license in Montgomery County in July. "We want to make sure our license stays valid."
State lawyers contend that their licenses never have been valid, because they were issued by a county court official turning a blind eye to Pennsylvania law. Therefore, they say, the case's outcome won't affect same-sex couples.
Pellegrini said he'll try to rule as soon as possible on the case. "We always get back to the issue of who decides," Pellegrini said. "It's a difficult case."
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