Clerk to Appeal Order Halting Gay-Marriage Licenses
D. Bruce Hanes, the clerk in Montgomery County who had been issuing marriage licenses to same-sex couples until he was ordered to stop last week, is appealing the Commonwealth Court's decision.
Montgomery County's Office of the Solicitor, headed by Ray McGarry, announced Tuesday that it will soon file an appeal to the Pennsylvania Supreme Court.
The office declined to comment further on the appeal. Frank Custer, spokesman for the Solicitor's Office, said the focus of the action will be "clear when the appeal is filed."
Commonwealth Court President Judge Dan Pellegrini had cleaved to the technical issues and left alone the constitutional claims in the opinion he issued last week ordering Hanes to stop issuing the licenses.
Pellegrini sided with the state on the issues of jurisdiction and standing — holding that his court had jurisdiction and that the department had standing — and also agreed with the state that Hanes couldn't raise a constitutional argument as a defense.
Because the suit was brought as a mandamus action, which doesn't allow counterclaims, the constitutional arguments leveled by Hanes couldn't be addressed, Pellegrini had said.
"Until a court has decided that an act is unconstitutional, Hanes must enforce the law as written, and it is not a defense to a mandamus action [that] the law may be unconstitutional," Pellegrini had said.
The likelihood that the Supreme Court will take up the constitutional questions is "ultimately a question for the court," Custer said.
However, John Culhane, a professor at Widener University School of Law whose research includes the rights of same-sex couples, said, "My guess is: not likely."
Although the constitutional issues might well be "hiding in plain sight" in this case, he said, the Commonwealth Court did a good job of explaining why they can't be reached through a mandamus petition.