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Pa. gay marriage defiance heads to court

Register’s action is challenged by state officials

D. Bruce Hanes, Montgomery County’s register of wills, has been issuing marriage licenses to gay couples since July.

Tom Gralish /Associated Press

D. Bruce Hanes, Montgomery County’s register of wills, has been issuing marriage licenses to gay couples since July.

HARRISBURG, Pa. — For two months, an elected court clerk in the Philadelphia suburbs has been giving something to same-sex couples they have not been able to get anywhere else: a Pennsylvania marriage license.

Now a court has to decide whether the clerk has singlehandedly added Pennsylvania to the growing list of states that formally sanction same-sex marriages or whether he has been acting illegally and must be stopped.

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Wednesday’s hearing in Harrisburg pits Governor Tom Corbett’s Health Department against D. Bruce Hanes, Montgomery County’s register of wills, who issues marriage licenses as part of his duties as clerk of the county orphan’s court.

Hanes began giving marriage licenses to gay couples in late July, shortly after the US Supreme Court threw out portions of the federal Defense of Marriage Act. Pennsylvania is the only Northeastern state that has neither gay marriage nor civil unions, but the legality of the more than 150 such licenses Hanes has handed out remains in question.

David Cohen, an attorney representing 32 couples who received licenses from Hanes, said that it is too early to speculate on the legal status of those marriages.

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‘‘That’s certainly unknown because it would depend on the scope of the decision,’’ Cohen said. But he added that there’s plenty of legal precedent for courts to look at the core issue of how a local official decides whether an action is constitutional.

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