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Last week, Montgomery County Register of Wills Bruce Hanes began issuing  marriage licenses to same-sex couples. These licenses would seem to be issued in  contradiction to the Pennsylvania statute that limits marriage to one man and  one woman. Mr. Hanes says that he believes that law is unconstitutional and  therefore not enforceable.

Some have attacked Mr. Hanes for essentially going rogue. They say that he  does not have the authority to pick and choose which laws he wants to enforce  and which ones he does not. They also point out that if a law is  unconstitutional, it should be a judge who makes that determination, not a  county row officer. While these are reasonable points to make, they miss the  true issues at stake. A more comprehensive review of relevant legal issues  reveals that the actions taken by Mr. Hanes were, in fact, correct.

It is certainly true that no executive officer can unilaterally and  capriciously choose what laws to enforce. But it is also true that all  executives, including the Montgomery County register of wills, are legally  required to take an oath of office, in which they swear to “enforce, obey and  defend the Constitution of the United States,” not the “Domestic Relations Code of Pennsylvania.” Therefore, when a state or local law is clearly  unconstitutional, Mr. Hanes has not only the right but the sworn obligation to  not enforce it.

An example removed from the context of marriage is illustrative. Virtually  everyone would agree that the right of free speech under the First Amendment  requires that the state be content-neutral in applying speech restrictions. So,  suppose that a state passed a law saying that newspapers could publish  editorials only in support of Democratic candidates for office and were  prohibited from publishing editorials in support of Republican candidates. I  think most people would say that that is an obvious and blatantly  unconstitutional law.

It would be difficult to see how enforcing such a law would be consistent  with an oath of office wherein the officer has sworn to “defend the United  States Constitution.” Would we really want local authorities to arrest newspaper  editors for publishing forbidden editorials until a court intervenes?

Further, there is ample Supreme Court precedent supporting the proposition  that executive officials are not required, or even permitted, to enforce  unconstitutional laws. The court has said that an unconstitutional law “is void  for any purpose” and must be treated “as if it never passed.”

Given the clear fact that Mr. Hanes cannot enforce unconstitutional laws, the  question becomes whether he acted reasonably in determining that the specific  marriage law that he disregarded was unconstitutional. It is important to  remember that Mr. Hanes was elected in 2007. He has been in office for more than  five years and never once declined to enforce any Pennsylvania law, including  the one that limits marriage to one man and one woman. He didn’t breeze into  office with a list of laws that he didn’t like and set about nullifying them.  For more than five years he has issued marriage licenses only to heterosexual  couples, regardless of his personal feelings about gay marriage (of which I do  not know).

However, something changed. The United States Supreme Court issued its  opinion in United States v. Windsor, striking down the federal Defense of  Marriage Act (DOMA). While that opinion did not consider the Pennsylvania  marriage law specifically, it contained language that made it fairly clear that  the court viewed discrimination against gay couples who wished to marry as very  constitutionally problematic. Writing for the court, Justice Anthony Kennedy  said laws that discriminate against married gay couples “have no legitimate  purpose” and serve only to express “animus and disapproval” toward same-sex  couples, which is not a constitutionally appropriate reason to pass  legislation.

It is not only Bruce Hanes who believes that Justice Kennedy’s opinion is  inconsistent with marriage discrimination. Even Justice Antonin Scalia, the  court’s most ardent opponent of gay marriage, wrote that “the majority arms well  every challenger to a state law restricting marriage to its traditional  definition. How inevitable it is to reach the same conclusion  with regard to  state laws denying same-sex couples’ marital status.” Justice Scalia was not  happy about it, but he acknowledged the obvious implications of the majority’s  opinion.

When the Windsor opinion was issued, Bruce Hanes faced a dilemma he did not  ask for. Should he disregard the clearly unconstitutional Pennsylvania marriage  statute? Or should he disregard the oath he took to God and those who elected  him to “enforce, obey and defend” the Constitution of the United States? I, for  one, am glad that Mr. Hanes chose to respect the Constitution.

State Sen. Daylin Leach, D-17