Pennsylvania Attorney General Kathleen Kane’s decision not to have the Attorney General’s Office defend the state’s version of the Defense of Marriage of Act justifies its own analysis, but in the mean time, it appears that Montgomery County’s Register of Wills was prepared to issue a marriage license to a same-sex couple today. Though the couple backed out for unknown reasons, the willingness of D. Bruce Hanes to issue the marriage license in the face of countervailing Pennsylvania law indicates that it is a matter of time before a license is issued – and subsequently challenged – by a county in Pennsylvania. A challenge to such a license is not a bad thing to proponents of same-sex marriage.
Unlike the ACLU-sponsored challenge to Pennsylvania’s DOMA (“PA.DOMA”) which seeks declaratory relief recognizing that PA.DOMA violates the 14th Amendment of the Constitution, an action to invalidate a marriage license from Montgomery County would likely be brought by an opponent to same-sex marriage. Standing to bring an action would be a major question – who has the legal standing to contest the validity of the license? It would seem that Pennsylvania Attorney General’s Office, as the chief law enforcement office of the state, would typically be called to invalidate the license, but having already articulated a refusal to defend PA.DOMA at the Federal level they clearly would not. If not the AG”s office, who? There has been speculation that the Office of General Counsel – the Governor and exective branch’s lawyers – could step in and defend the law in the ACLU case, so it is similarly possible they could act on the orders of the Governor to deal with a same-sex marriage license.
Mr. Hanes decision to issue a same-sex marriage license is a bold step and potentially opens another avenue to attack PA.DOMA besides the ACLU’s challenge in the Middle District of Pennsylvania. If today’s couple or another same-sex couple steps up to have a marriage license issued in Montgomery County, it will undoubtedly create another opportunity to address PA.DOMA at the state level.