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Pennsylvania clerk told to stop issuing gay marriage licenses

By Daniel Kelley

PHILADELPHIA (Reuters) - A Pennsylvania judge on Thursday ordered a Montgomery County court official to stop issuing marriage licenses to same-sex couples, saying that a court clerk does not have the authority to decide whether the state rules are constitutional.

The state's Health Department sued Montgomery County Register of Wills D. Bruce Hanes in August after he began issuing marriage licenses to same-sex couples, following the U.S. Supreme Court's June ruling that the federal government must recognize same-sex unions in states where they are legal.

"A clerk of courts has not been given the discretion to decide that a law ... he or she is charged to enforce is a good idea or bad one, constitutional or not," Pennsylvania Commonwealth Court President Judge Dan Pellegrini wrote in an opinion issued on Thursday. "Only courts have the power to make that decision."

Hanes said he was disappointed by the ruling but would comply with it, while deciding whether to appeal.

"After having issued 174 marriage licenses since then and having talked with many of those couples, I am more convinced today that I am on the right side of history," he said in a statement. "Regardless of how my particular case is resolved, I believe the case for marriage equality continues to move forward, and I can only hope that my decision helped that effort."

Hanes began issuing the licenses after Pennsylvania Attorney General Kathleen Kane in July announced that she would not defend the state's ban on gay marriage in a case before federal courts in the middle district of Pennsylvania.

John Culhane, a professor at Widener Law School and author of the book "Same-Sex Legal Kit for Dummies," said Pellegrini's opinion in Pennsylvania is unsurprising. But he noted that the opinion did not touch on the questions being litigated in the federal court case.

"This case sort of ends with a thud, because it means now we go back to the constitutional issue," Culhane said.

'BATTLE FAR FROM OVER'

County officials said they did not plan to give up the idea of supporting gay marriage.

"The legal battle over marriage equality is far from over as this is just one step in a long process," said Montgomery County Commissioner Chairman Josh Shapiro. "I will continue to be an advocate for justice and fight for marriage equality in Pennsylvania."

A similar situation is playing out in New Mexico, where several counties have begun issuing marriage licenses to gay and lesbian couples. That state's constitution does not bar gay marriage, but after a legal challenge to the practice, the state Supreme Court agreed to hear arguments next month on whether to allow it.

Pennsylvania General Counsel James Schultz, Governor Tom Corbett's chief legal adviser, said in a statement that the ruling is important because it ensures that office holders enforce state laws uniformly.

"The key question in this case has been whether any local official, anywhere in Pennsylvania, has the ability to decide which laws to uphold and which laws to reject based on their own personal legal opinion," Schultz said.

The ruling does not address the validity of the licenses that have already been issued, leaving the couples who received the licenses in limbo, said Robert Heim, an attorney representing 32 of the couples.

"The order leaves my clients in the same place they were before," Heim said.

He added that the opinion "virtually invites" the couples to initiate a challenge in court to enforce the validity of the licenses, but he said no decision has been made on that front.

Thirteen U.S. states and the District of Columbia recognize gay marriage. Pennsylvania is among six potential states targeted by gay marriage advocates for a push to legalize same-sex nuptials in 2015 and 2016, according to the Freedom to Marry advocacy group.

Hawaii's governor on Monday called for a special legislative session in October to take up a bill to legalize gay marriage in the island state.

(Additional reporting by Dave Warner; Editing by Scott Malone, Andrew Hay and Matthew Lewis)

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