A Summary of the Attacks on Pennsylvania's Marriage Law

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“It’s not about love. It’s about children,” said Michael McMonagle, president of the Pro-Life Coalition at a rally in Harrisburg this past July

From Mike McMonagle, President

Pro-Life coalition of PA

The June 26, 2013 Marriage Decisions by the U.S. Supreme Court

On this day, the Court issued two decisions on marriage. These decisions were bad with the only "silver lining" being that they were not as bad as proclaimed by the secular media.

In the California Proposition 8 case, the U.S. Supreme Court found that the third party petitioners had a lack of standing. These petitioners entered the case because California's Governor and Attorney General refused to appeal the district court's decision.

Thus, the U.S. Supreme Court remanded the case to the 9th Circuit Court, which had upheld the district court decision. The district court decision granted two same gender couples the "right to marry."

Thus, the impact of this decision should only be that California law recognizes these two same gender couples as "married." But, Gov. Brown is acting to use this decision to declare that same gender marriage is now legal throughout California. Gov. Brown's actions are likely to result in additional litigation on this issue.

The U.S. Supreme Court also declared unconstitutional part of the federal Defense of Marriage Act (DOMA). Thus, the federal government now recognizes same gender marriages in states that have legalized these arrangements.

The insidious part of the DOMA decision is that Justice Kennedy's majority opinion, while denying a constitutional right to same-gender marriage, declared that the only reason for opposition to such "marriages" is "invidious discrimination" (i.e. hatred) towards homosexuals. This reasoning is being used to attack state DOMAs, including Pa.'s law.

The July 9, 2013 ACLU Lawsuit Against Pa.'s Marriage Law

Although Gov. Corbett eventually announced that his attorneys would defend Pa.'s DOMA, his initial tepid response to Kane's action emboldened "same-sex marriage" supporters.

The July 23, 2013 Cozen-O'Connor Decision

On this day, Federal District Judge Darnell Jones ruled on a "sideways challenge" to Pa.'s DOMA. His decision was bad but very limited.

The case involved two women who were "married" in Canada. They moved to Illinois where one woman worked for a law firm, Cozen-O'Conner, which was headquartered in Philadelphia. One woman died without a will with a pension benefit of approximately $47,000 from her employment with Cozen-O'Conner.

Since Pa. law did not recognize her "partner" as a spouse, the employer awarded the pension to the deceased woman's parents. The parents allowed pro-life attorney Randy Wenger, Esq., from the Independence Law Center to intervene on their behalf.

Despite excellent legal work by Randy, Judge Darnell Jones (the ACLU "frontal challenge" lawsuit against our state marriage law is before Federal District Court Judge John Jones in Harrisburg) awarded the pension to the deceased woman's lesbian partner. Although mentioning Justice Kennedy's June 26, 2013 opinion, he limited the rationale for his decision to his interpretation of the Cozen-O'Conner pension plan. The plan allows a surviving spouse to receive a pension if the spouse were married for at least one year.

In his convoluted decision, Judge Darnell Jones also referred to the status of Illinois law, which at the time allowed homosexual relationships to be legally treated as a "civil union," but not as marriage.

The July 23, 2013 Actions by Montgomery County Officials

Emboldened by Gov. Corbett's tepid response to AG Kane's July 11th action, on this day, at the urging of Montgomery County Commissioner Chairman, Josh Shapiro, Montgomery County Register of Wills (ROW) Bruce Hanes began issuing marriage licenses to same-gender couples. ROW Hanes also suspended the three day rule, so these same-gender couples could promptly "marry."

Shapiro and Hanes issued these licenses for the following reasons.

A. To promote public support for "same sex marriage" by having marriage supporters solely focus their public arguments on the rule of law. Exclusively rule of law arguments without a defense of marriage as the union of one man and one woman, contains an implicit statement in support of the public arguments for same sex marriage.

Of course, I agree that the supporters of Pa.'s Marriage Law should focus on rule of law arguments in their court actions.

B. To distract and diminish the arguments of Gov. Corbett and his legal team in the ACLU lawsuit against Pa.'s DOMA. They also hope that since Pa.'s Gov. is currently the only respondent, that he will be replaced by a pro-"same sex marriage" Governor in 2015, who will refuse to defend Pa.'s DOMA through the federal appeals process.

C. To cause political harm to Gov. Corbett because they had good reason to expect the timid response that he provided. This harm occurs because passion persuades and zealous action rallies supporters of a position, while timidity causes doubts and discourages supporters.

The September 12, 2013 Decision by Pa. Commonwealth Court Judge Dan Pelligrini.

Shapiro and Hanes vigorously defended their actions in Pa. Commonwealth Court when the Pa. Dept. of Health filed litigation against them.

They are currently complying with Judge Pelligrini's ordering them to stop issuing these licenses. But, they have continued their efforts to advance legal acceptance of "same-sex marriage." They are arguing that the same-gender couples already "married" under a fraudulent license should have the same legal rights as married couples. For example, they are attempting to intimidate the Montgomery County Recorder of Deeds to allow the transfer of property to a same-gender "married" couple without the transfer tax, which is a legal privilege extended to actually married couples.

What Action Should Certain Public Officials Have Taken in Response to Montgomery County Register of Wills Bruce Hanes Issuing Marriage Licenses to Same-Gender Couples?

1.     Judge Stanley Ott - He is the President Judge of Montgomery County Orphans Court, which handles marriage and other family law matters. Montgomery County Register of Wills Bruce Hanes is the Clerk of the Court and is, therefore, subject to Judge Ott's authority.

 

Judge Ott should have immediately ordered Bruce Hanes to stop issuing marriage licenses to same-gender couples. Instead, he delayed responding to Hanes' action until after Gov. Corbett's July 30, 2013 filing in Pa. Commonwealth Court. Judge Ott then declared that the matter was "in another court."

2. District Attorney Risa Ferman - She serves as the chief law enforcement officer for Montgomery County. Pa. Law Section 4911 prohibits issuing official documents known to be false. District Attorney (DA) Risa Ferman admitted that Hanes was violating state law, but declined to act to stop him.

If by July 24, 2013, Hanes had not ceased violating state law by issuing such false "marriage licenses," DA Ferman should have arrested and charged Hanes with this crime.

Former Montgomery County DA and current County Commissioner Bruce Castor, reported that while he was DA, the county Register of Wills considered such action. However, this Register of Wills declined to issue such marriage licenses when then DA Castor threatened to charge him with criminal violations of state law.

3. Pa. Governor Tom Corbett - His initial reaction was to declare Hanes' violation of state law to be "a county matter." While partially correct, this highly timid response attempted to avoid his legal duty as the leader of the Pa. Government.

After receiving much criticism, on July 30, 2013, Gov. Corbett directed the Pa. Department of Health (DOH) to file litigation in Pa. Commonwealth Court against Hanes, which occurred on August 5, 2013. This litigation lacked a sense of urgency because Gov. Corbett did not request an immediate order to stop Hanes. The Pa. Commonwealth Court responded to this lack of urgency by delaying a hearing until September 4, 2013; a decision until September 12, 2013 and then not addressing the legal status of the same-gender couples "married" under the marriage licenses issued by Hanes.

When DA Risa Ferman did act against Hanes, Governor Corbett should have increased his legal authority and sent state police officers to stop Hanes from issuing such licenses.

Also, during this litigation, Gov. Corbett declined to publicly declare that the legal definition of marriage should remain one man and one woman. He also reprimanded the Pa. Department of Health attorney Greg Dunlap for making a very appropriate argument. Mr. Dunlap argued that Hanes' argument that gender was irrelevant to marriage also meant that age was irrelevant to marriage and therefore Hanes would support issuing marriage licenses to 12 year old children.