Attorneys for Montgomery County Register of Wills D. Bruce Hanes filed the brief Dec. 2 in Pennsylvania Supreme Court. Hanes argued that the state Department of Health had no standing for its lawsuit against him, and that the court should invalidate the 1996 law defining marriage as between one man and one woman.
Over the summer, Hanes issued more than 170 licenses to same-sex couples before a Commonwealth Court judge ordered him to stop, prompted by the state suit.
The department argued that Hanes’ actions were in “direct defiance” of the state’s marriage law, with which Commonwealth Court Judge Dan Pellegrini concurred. Pellegrini, however, did not issue a ruling on the actual constitutionality of the law.
In his brief, Hanes argued that the Commonwealth Court was incorrect to conclude that the Department of Health had legal standing to bring the action.
“Where the duty of an officer under a statute is a public one, it can be enforced only at the suit of the Attorney General or the district attorney of the proper county or by a private citizen who has a specific and independent legal right or interest in himself different from that of the public at large or who has suffered an injury special and peculiar to himself,” the brief stated.
Attorney General Kathleen Kane has declined to defend the state’s ban on same-sex marriage.
Frank Custer, Montgomery County director of communications, reiterated Hanes’ position that the department is not the proper party to bring the suit.
“All the health department does is maintain marriage records, so whether Mr. Hanes issues licenses to heterosexual or same-sex couples has no affect on the Department of Health,” Custer said. “Our claim is that they don’t have standing to bring this case because they are not affected by his actions.”
Custer said this case is not the county’s but a case involving Hanes.
The state has 30 days to file its response brief, and the Supreme Court will then set a date for oral arguments.