State Confusion over Issuing Same-sex Marriage Licenses

A Pennsylvania judge last week ordered town clerks to discontinue issuing same-sex marriage licenses. Same-sex marriage is not part of the law in Pennsylvania, yet recent federal Supreme Court decisions have led to confusion in local state offices.  You can read more in a recent article by JURIST.  

This Blog discussed some of the confusion over the proper application of Windsor in previous posts. The federal government is taking steps to clarify some of the uncertainty surrounding Windsor; for instance, JURIST reports the US Department of Labor recently explained that federal employee benefit plans will be available to all legally married couples, even those domiciled in states that do not recognize same-sex marriages. However, as the situation in Pennsylvania illustrates, the impact of Windsor has not yet been clearly delineated. 

JURIST is reporting that it is not yet clear how this Pennsylvania decision will affect same-sex couples who have obtained marriage licenses already in Pennsylvania:

In August lawyers for the Pennsylvania Department of Health and Governor Tom Corbett argued in a legal filing that Hanes' decision to issue marriage licenses to same-sex couples is a separation-of-powers violation that "risks causing serious and limitless harm" in Pennsylvania. In July the Pennsylvania Department of Health filed a petition in the Commonwealth Court seeking to stop Hanes from issuing marriage licenses to same-sex couples. Also in July the American Civil Liberties Union (ACLU) filed a federal lawsuit seeking same-sex marriage in Pennsylvania. The Governor's Office of General Counsel wrote to the attorney general in defense of the Pennsylvania statute, arguing that Windsor does not strike down the state's marriage law, but just the federal Defense of Marriage Act. Since the Windsor ruling, courts across the country have been citing the decision.

You can find a list of those situations at JURIST.  It is interesting that the Penn State Law Review requested an article on Windsor in a different context, which I researched, wrote, and published with them.  That article is available for downloading and reading at the Social Science Research Network. 

It seems that the Supreme Court's decision in Windsor has served less to strengthen marriage for all participants regardless of gender, and more to jeopardize its stability among the states.  Fostering family restoration requires strong state definitions and endorsement of marriage and the law of marriage entry. 

Although Pennsylvania law appears to have that type of regulation, it is being challenged on the most local level.