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Same-sex marriage and a county clerk’s role

A federal judge in Pennsylvania has sharply rebuked a county clerk for trying to keep alive a challenge to same-sex marriage in the state, accusing her of “using her office as a platform” for making “a contrived legal argument” that represents only her own personal views.  U.S. District Judge John E. Jones III of Harrisburg made the comments on Wednesday in refusing to allow the Schuykill County clerk to enter a case over marriage rights in Pennsylvania.

Among the nineteen states where same-sex marriage is now allowed, by court ruling or otherwise, some legal uncertainty remains in only two of those states:  Pennsylvania and Oregon.  Although gay and lesbian couples are going ahead and getting married in those states, some last-ditch efforts to stop that are now awaiting action by the U.S. Courts of Appeals for the Third and Ninth Circuits.  Both are expected to be resolved soon.

In Pennsylvania, the governor and other state officials opted not to challenge Judge Jones’s May 20 ruling striking down the state’s ban on same-sex marriage.  The Schuylkill County clerk, Theresa Santai-Gaffney, of Pottsville, decided to try to keep alive a defense of the ban.  She asked Judge Jones to allow her to intervene formally to do so, and asked him to postpone his ruling so she could appeal it to the Third Circuit.

Blocking her intervention and dismissing her postponement plea, Judge Jones said that he respected Ms. Santai-Gaffney’s “evidently deep personal disagreement with our decision to strike down the marriage laws.  That said, we lament that she has used her office as a platform to file the motion we dispose of today.”

Noting that state officials have declined to appeal the case, and that they also had ordered officials like the Schuylkill County clerk to obey Judge Jones’s decision, the judge said that the county clerk could have no doubt about what her official duty now is.  “For her to represent otherwise,” the judge added, “is wholly disingenuous.”

He concluded: “At bottom, what we have before us is a contrived legal argument by a private citizen who seeks to accomplish what the chief executive of the Commonwealth, in his wisdom, has declined to do.”

Meanwhile, the county clerk’s appeal to the Third Circuit is pending, and that court indicated on Wednesday that it is considering disposing of her challenge by “summary action” — that is, without legal arguments, written or oral.

In Oregon, the state’s ban has been struck down and there, too, state officials have refused to appeal.  However, a private group that opposes such marriages, the National Organization for Marriage, is seeking a right to intervene to defend the ban.  At this point, the Ninth Circuit is pondering two pleas by state officials to dismiss that appeal, to remove any lingering doubt that same-sex marriages can go forward in Oregon.

Recommended Citation: Lyle Denniston, Same-sex marriage and a county clerk’s role, SCOTUSblog (Jun. 19, 2014, 3:18 PM),