THE BLOG
08/01/2013 04:14 pm ET Updated Oct 01, 2013

PA Official Legally Right to Issue Same-Sex Marriage Licenses

Last week, Montgomery County Register of Wills Bruce Hanes began issuing marriage licenses to same-sex couples. These licenses would seem to be issued in contradiction to the Pennsylvania statute that limits marriage to one man and one woman. Mr. Hanes says that he believes that law is unconstitutional and therefore not enforceable.

Some have attacked Mr. Hanes for essentially going rogue. They say that he does not have the authority to pick and choose which laws he wants to enforce and which ones he does not. They also point out that if a law is unconstitutional, it should be a judge who makes that determination, not a county row officer. While these are reasonable points to make, they miss the true issues at stake. A more comprehensive review of relevant legal issues reveals that the actions taken by Mr. Hanes were, in fact, correct.

It is certainly true that no executive officer can unilaterally and capriciously choose what laws to enforce. But it is also true that all executives, including the Montgomery County register of wills, are legally required to take an oath of office, in which they swear to "enforce, obey and defend the Constitution of the United States," not the "Domestic Relations Code of Pennsylvania." Therefore, when a state or local law is clearly unconstitutional, Mr. Hanes has not only the right but the sworn obligation to not enforce it.

An example removed from the context of marriage is illustrative. Virtually everyone would agree that the right of free speech under the First Amendment requires that the state be content-neutral in applying speech restrictions. So, suppose that a state passed a law saying that newspapers could publish editorials only in support of Democratic candidates for office and were prohibited from publishing editorials in support of Republican candidates. I think most people would say that that is an obvious and blatantly unconstitutional law.

It would be difficult to see how enforcing such a law would be consistent with an oath of office wherein the officer has sworn to "defend the United States Constitution." Would we really want local authorities to arrest newspaper editors for publishing forbidden editorials until a court intervenes?

Further, there is ample Supreme Court precedent supporting the proposition that executive officials are not required, or even permitted, to enforce unconstitutional laws. The court has said that an unconstitutional law "is void for any purpose" and must be treated "as if it never passed."

Given the clear fact that Mr. Hanes cannot enforce unconstitutional laws, the question becomes whether he acted reasonably in determining that the specific marriage law that he disregarded was unconstitutional. It is important to remember that Mr. Hanes was elected in 2007. He has been in office for more than five years and never once declined to enforce any Pennsylvania law, including the one that limits marriage to one man and one woman. He didn't breeze into office with a list of laws that he didn't like and set about nullifying them. For more than five years he has issued marriage licenses only to heterosexual couples, regardless of his personal feelings about gay marriage (of which I do not know).

However, something changed. The United States Supreme Court issued its opinion in United States v. Windsor, striking down the federal Defense of Marriage Act (DOMA). While that opinion did not consider the Pennsylvania marriage law specifically, it contained language that made it fairly clear that the court viewed discrimination against gay couples who wished to marry as very constitutionally problematic. Writing for the court, Justice Anthony Kennedy said laws that discriminate against married gay couples "have no legitimate purpose" and serve only to express "animus and disapproval" toward same-sex couples, which is not a constitutionally appropriate reason to pass legislation.

It is not only Bruce Hanes who believes that Justice Kennedy's opinion is inconsistent with marriage discrimination. Even Justice Antonin Scalia, the court's most ardent opponent of gay marriage, wrote that "the majority arms well every challenger to a state law restricting marriage to its traditional definition. How inevitable it is to reach the same conclusion with regard to state laws denying same-sex couples' marital status." Justice Scalia was not happy about it, but he acknowledged the obvious implications of the majority's opinion.

When the Windsor opinion was issued, Bruce Hanes faced a dilemma he did not ask for. Should he disregard the clearly unconstitutional Pennsylvania marriage statute? Or should he disregard the oath he took to God and those who elected him to "enforce, obey and defend" the Constitution of the United States? I, for one, am glad that Mr. Hanes chose to respect the Constitution.