County attorneys for Montgomery County clerk D. Bruce Hanes said he has a sworn duty to uphold the Pennsylvania and U.S. constitutions - and Pennsylvania's law banning same-sex marriage violates both, they argued.
The state "cannot possess a clear legal right to force (Hanes) to abandon his oath," the lawyers wrote.
The documents were in response to a lawsuit filed this week by the state Health Department that seeks a court order to stop Hanes from granting licenses to gay and lesbian couples. County officials said as of late Friday afternoon, Hanes had issued same-sex couples 62 marriage licenses since July 24 and 13 of those have been completed and the marriages recorded.
Hanes began granting the licenses not long after the U.S. Supreme Court struck down part of the Defense of Marriage Act, also known as DOMA. At the time, he said he wanted to "come down on the right side of history and the law."
Montgomery County Solicitor Raymond McGarry said at a news conference Friday that the county's motion to dismiss the lawsuit also argues that Commonwealth Court, where the suit was filed, lacks judicial authority in the case and that the Health Department has no legal say, or standing, in the matter.
"We believe Pennsylvania's DOMA is unconstitutional," McGarry said. He cited the state constitution, which says "that all men are born equally free and independent and shall have certain indefeasible rights, among which is the right to pursue one's own happiness."
Pennsylvania is the only state in the Northeast without gay marriage or civil unions.
The Health Department contends that Hanes' actions will cause "administrative and legal chaos" and will likely lead to illegal claims for benefits.
McGarry argued that only the attorney general, district attorney or a private citizen can potentially have legal standing in the case. He also asked for the case to be transferred to the Pennsylvania Supreme Court, the state's highest court and the only one he contended has jurisdiction in the matter.
The American Civil Liberties Union has filed a separate lawsuit to overturn the 1996 state law defining marriage as a civil contract between one man and one woman. Attorney General Kathleen Kane has declined to defend the law, saying she believes it is unconstitutional. That task has now fallen to the governor's office.
Meanwhile, an official in Centre County said she will perform weddings for same-sex couples who obtain a license from Hanes' office. State College Mayor Elizabeth Goreham said although she doesn't have the power to issue marriage licenses, she can wed couples who already have one.
