Same-Sex Marriage Licenses: Who Gets to Decide?

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HARRISBURG – More than 100 same-sex couples in Pennsylvania are now waiting to hear whether or not the marriage licenses they were given in Montgomery County are legal.

A Commonwealth Court judge listened to arguments Wednesday centering on a register of wills clerk near Philadelphia who has been issuing marriage licenses to same-sex couples since July.

The judge himself said this is a very difficult case, that is not addressing the constitutionality of same-sex marriage, but rather who has the right to decide what the law is here in Pennsylvania.

Tempers flared over the issue of same-sex marriage outside the Pennsylvania Judicial Building in Harrisburg.

“Since when have elected public officials made the decision that they can implement certain laws and not implement certain laws?” said Octane Faith Pastor William Deviln.

Some of those same-sex couples that got a marriage license from Montgomery County Clerk Bruce Hanes came out to support his actions in the state capitol.

“It's quite bold. I'm thrilled he did it. We went the first day we heard,” said same-sex marriage supporter Bolton Winpenny.

"Look, everybody's talking about this and it's clear that there's a shift for same sex marriage,” said same-sex marriage supporter Loreen Bloodgood.

But despite all of the constitutional issues being raised by same-sex couples and others outside the courtroom, the judge will only rule on whether or not the clerk from Montgomery County has the right to decide who should be married.

The Department of Health argued Hanes acted outside of his abilities as a clerk and the more than 150 same-sex marriage licenses he issued are illegal, accusing him of causing chaos.

"These issues are not solved by individual public officials based upon their own personal opinions what to do and what not to do," said Nils Hagen-Frederiksen, press secretary of the Office for General Counsel.

While the defense argued the Department of Health had no legal standing in this case and that the clerk acted within his duties, based partially on the statements of Attorney General Kathleen Kane who called Pennsylvania’s Defense of Marriage Act unconstitutional.

"This was not a decision made out of thin air. This was a decision made after careful consideration of the law," said Montgomery County Solicitor Raymond McGarry.

This leaves the commonwealth judge with what he calls a very difficult case.

The judge is not expecting to take very long to make a decision in this case, promising in the courtroom to rule shortly, a ruling many are anxiously awaiting.