Courting Justice: PA vs. Bruce Haines – Who Is Going To Win This Lawsuit?

August 13, 2013

By Robert N. Hunn

(Note: The author of the blog “Courting Justice” has returned after a short hiatus during which he travelled to the Middle East to receive treatment for dry skin using the mud from the bottom of the Dead Sea. Early reports are that his skin is much softer.)

Let me break this down. Since 1996, it has been the law of Pennsylvania that only a man can marry a woman (and vice versa). This is state law. Additionally, it has been the law of the United States of America since 1996 that same sex married couples are not legitimate marriages and cannot receive federal benefits.

In June of 2013, the United States Supreme Court struck down Section 3 of the Defense of Marriage Act (“DOMA”) which barred same sex married couples from receiving federal benefits on the ground that such a law is unconstitutional. (It discriminates against homosexuals.)

On July 23, 2013, Bruce Haines, the Register of Wills of Montgomery County Pennsylvania began issuing marriage licenses to same sex couples despite the fact that marriage between same sex couples is illegal in Pennsylvania. Shortly after that, the Commonwealth of Pennsylvania commenced a legal action against Mr. Haines to stop him.

Who is going to win?

If you have read my prior blogs, you know I’m in favor of same sex marriages. And I applaud Mr. Haines’ bravery in taking the moral lead on this issue. But the lawyer in me tells me we are a country of laws. In exchange for the right to be citizens of this country, we agree to abide by the laws. Additionally, public servants agree to obey and act in accordance with the laws that have been enacted. When all is said and done, don’t bet on Mr. Haines to win this round. I don’t see it happening.

My bunk mate from Camp Pinemere when I was 12 years old is now State Senator Daylin Leach. Senator Leach wrote a very compelling article recently defending Mr. Haines’ actions. In it he argues that Mr. Haines took an oath of office to preserve, protect and defend the Constitution of America. If the Supreme Court has effectively ruled that a law denying equal rights to same sex married couples is unconstitutional, then Mr. Haines, who is required to defend the Constitution, is acting in a constitutional manner by providing equal rights to obtain a marriage license to same sex couples.

The lawyer in me says “Well played, sir! Good argument Senator!” But I have one teeny tiny problem with this argument. While the Supremes found that a law discriminating against same sex couples was unconstitutional, it was not the Pennsylvania law that was found unconstitutional. It was different law. The Pennsylvania law still stands (regardless of how discriminatory it is). And, until that law is found unconstitutional by the courts or changed by the legislature, I’m afraid Mr. Haines is duty bound to enforce it.

I hope I am wrong about all this. We should know the answer soon enough.