It didn’t take long for the marriage licenses issued by Montgomery County Register of Wills, D. Bruce Hanes, to come under fire. Questions as to who might have standing to challenge the licenses and who might prosecute the case were answered on Tuesday when the Pennsylvania Department of Health filed an injunction in the Commonwealth Court asking the Court to enter an order barring Mr. Hanes from issuing any more same-sex marriage licenses or accepting completed marriage certificates after the marriages have been solemnized. There is debate as to whether the Department of Health has standing to challenge the licenses and that argument may be raised in defense to the Department of Health’s lawsuit. Montgomery County’s solicitor, Ray McGarry, has already articulated an intent to defend Mr. Hanes decision to issue the licenses.
The Department of Health’s injunction will be argued by the Office of General Counsel. After the state Attorney General’s stated refusal to defend Pennsylvania’s Defense of Marriage Act on the basis that it unconstitutional, the Office of General Counsel was expected to step in on any litigation related to same-sex marriage and Pennsylvania’s DOMA. They will be defending Pa.DOMA in the Middle District against the ACLU’s challenge and prosecuting the action against the Register of Wills and Montgomery County Orphans Court on behalf of the Department of Health.
These two lawsuits could radically reshape Pennsylvania’s law on same-sex marriage. Crafting the “right” case to challenge an issue like same-sex marriage carries with it a lot of risks; there are few opportunities to attack a law and a loss in either case does not mean that another challenge is readily available. A set back on either or both cases could temporarily stop the momentum in Pennsylvania created by the Supreme Court’s “Windsor” decision. However, by taking two very different approaches to attacking the issue resulting in two distinct courts, proponents of same-sex marriage have avoided putting all their eggs in one basket.