Law and Society adjunct professor D. Bruce Hanes, who is register of wills and clerk of Orphans’ Court in Montgomery County, Pa., has been in the media spotlight since he defied Pennsylvania state law July 24 and started issuing marriage licenses to same-sex couples.
Hanes says the Pennsylvania statute defining marriage as between a man and woman is at odds with the Pennsylvania constitution, which guarantees equal rights regardless of sex and bars discrimination against any person exercising a civil right. His position is in line with that of Pennsylvania Attorney General Kathleen Kane, who has said Pennsylvania’s marriage statute is unconstitutional and that she would not defend it in court.
Furthermore, the U.S. Supreme Court, in one of the most widely watched decisions of the year, in June struck down part of the federal Defense of Marriage Act (DOMA) that barred recognition of same-sex marriages for the purpose of awarding federal benefits.
For Hanes, the issue came to the forefront last month when he was asked for the first time to issue a marriage license to a same-sex couple. After reviewing with the register of wills and county solicitors the Pennsylvania constitution and the 1996 state law that defines marriage as a union between a man and a woman, he concluded, “In a choice between an unconstitutional law and the Pennsylvania constitution, I come down on the side of the constitution.”
The controversy will likely be decided in court, as Pennsylvania’s Department of Health has filed a lawsuit seeking an injunction to block Hanes from issuing marriage licenses to same-sex couples. Montgomery County has said it will defend Hanes in the case.
As of Aug. 9, 100 marriage licenses had been issued by his office to same-sex couples and 28 of them had been returned certifying the marriages have been performed and are registered with the county. Hanes’ decision to grant same-sex marriage licenses has been covered widely in the media, including The Wall Street Journal, Washington Post, Rachel Maddow Show, CNN, The Philadelphia Inquirer, CBS3, NBC10 and 6ABC and Huffington Post.
Hanes, an attorney who teaches courses in business law and Pennsylvania election politics at PhilaU, was interviewed by PhilaU Today on his decision to issue marriage licenses to same-sex couples. Law and Society senior Christopher Jablonski contributed to this report.
Q: The U.S. Supreme Court ruled in June that part of the federal Defense of Marriage Act—which limited federal benefits to legally married same-sex couples–is unconstitutional. Did this impact your decision to grant marriage licenses to same-sex couples in Montgomery County?
A: Yes, the elements that went into my decision include the DOMA case, [PA Attorney General Kathleen] Kane’s refusal to defend Pennsylvania’s marriage act in court, based on her statement that she believes the act is wholly unconstitutional, and third, the issue of Pennsylvania’s constitution.
Q: Critics say your role as a public servant is to uphold state laws regardless of whether you believe the laws are just. What is your response to that?
A: These are not my personal feelings, they are legal opinions. Everybody has a point of view, and I respect people with that point of view; however, it is not mine. The way to resolve this in the courts and that is exactly what will happen.
Q: There was a rally in support of you Aug. 5 at the Montgomery County Courthouse and some have called your decision courageous. Have you received a lot of support for your decision?
A: Yes, and I appreciate everyone’s support. I’ve gotten phone calls from people I haven’t heard from in a while, a lot of email, Facebook comments. I like to be called courageous, but the point of this entire matter is equal protection. That is to say, two people have the right under the Pennsylvania constitution to have their union accepted, just like my union is with my wife of 42 years.
Q: Polls indicate that Americans increasingly support same-sex marriage, including a recent poll of Pennsylvania voters that found a majority—52 percent—do so. Did this public acceptance influence your action on this issue?
A: I didn’t think about that at all.
Q: Do you hope your actions will provide some impetus for change in Pennsylvania state law to allow same-sex marriage?
A: I hope the courts will interpret the Pennsylvania constitution the way I do: that marriage should not be withheld on the basis of sex or gender of the individual. [The lawsuit brought by the Pa. Department of Health is] an attempt to make me apply the marriage act pursuant to the way they want and ignore the constitutionality issue.
Q: How do think your decision will impact your career?
A: I’ve been asked what my political aspirations are, and I have none. I’ve been elected register of wills twice. I expect to continue in my job and will probably run again in ‘15. I really don’t know if it will impact my re-election. I’m not interested in running for governor or anything like that. My political future was not an issue at all.
Q: Will you address this issue in your classes at PhilaU?
A: In the spring I teach a course on Philadelphia electoral politics. It’s not in the syllabus, but I’m certainly interested in talking about it if the students want.
Q: What would make you stop issuing same-sex marriage licenses?
A: An injunction.
Q: Are you surprised to find yourself a lightning rod on this controversial issue?
A: I don’t see myself as a crusader. Two people had an issue and I tried to resolve it for them.