HARRISBURG - Legal watchers hoping for impassioned debate and a quick resolution to Pennsylvania's lawsuit over same-sex marriage instead witnessed "arcane legal arguments" and a gingerly dance around the question of constitutionality in Commonwealth Court on Wednesday.
The Health Department is asking the court to force Montgomery County Register of Wills D. Bruce Hanes to stop issuing marriage licenses to gay and lesbian couples. A 1996 state law bans gay marriage, but Hanes says the law is unconstitutional.
After hearing arguments for about an hour, President Judge Dan Pellegrini said he would rule "as quickly as I can" but gave no timetable.
The judge was reluctant to get into the "complexities" of the same-sex marriage debate, he said, quoting U.S. Supreme Court Justice Anthony M. Kennedy in the recent Windsor ruling overturning a federal ban on gay marriage.
Pellegrini appeared to want the same-sex marriage issue settled in any way other than the mandamus case that was before him. He referenced the Supreme Court's not-quite-decisive language in Windsor and a pending federal lawsuit challenging Pennsylvania's marriage law. And he questioned why Hanes or the couples seeking licenses did not challenge the law in court rather than violating it in the clerk's office.
In all of those instances, the constitutionality of gay marriage would have been decided on its own merits. Instead, the first court challenge in this state came as a mandamus filing, which ordinarily deals with the narrow question of whether a public official can be compelled to follow a particular law.
"The judge is struggling with 'How can I make a clean separation of these issues,' and he's trying to avoid going to the constitutionality," said John G. Culhane, a law professor at Widener University.
Hanes' attorneys want to use constitutionality as a defense. If Pellegrini allows that, a longer proceeding is likely to be scheduled in the coming weeks.
But much of the hearing Wednesday hovered around whether Commonwealth Court should be hearing the case at all. Culhane said that could indicate Pellegrini is "leaning toward punting this to the Pennsylvania Supreme Court."
The judge also expressed concern about the "ramifications" of this case, asking whether it could pave the way for a sheriff to issue gun permits to felons, or a tax assessor to refuse to reevaluate certain properties if the official believes those statutes to be unconstitutional.
In July, Hanes followed in the footsteps of Pennsylvania Attorney General Kathleen Kane by calling the state's Marriage Law discriminatory and unconstitutional, based on the Windsor decision. That ruling left marriage rights up to the states, but language about discrimination, stigma, and "separate status" left the door open to more constitutional challenges.
Since July 24, Hanes has issued 165 licenses to same-sex couples. Until this case is decided - by Pellegrini or another court - the validity of those licenses will remain in dispute.
Hanes was not in Harrisburg for Wednesday's hearing, but was represented by County Solicitor Ray McGarry and his staff. County Commissioners Chairman Josh Shapiro did attend, and said after the hearing that he was hopeful the judge would rule in Hanes' favor or send the case to the Pennsylvania Supreme Court.