D. Bruce Hanes is a county clerk in Montgomery County, Pennsylvania. Approximately 2,100 miles away, Robert Zamarripa occupies the same position for Grant County, New Mexico. Even with so much distance between them, Hanes and Zamarripa (and their counties) have one major thing in common: both will issue or are issuing marriage licenses to same-sex couples even though their states have not legalized same-sex marriage.
“Based on the recent Supreme Court decisions over the Defense of Marriage Act, I felt that Pennsylvania’s Marriage Act was indeed unconstitutional, so in this office, we no longer ask people their gender.”
Today, Pennsylvania state courts tackled the question of whether or not these licenses are valid or void. Unsurprisingly, the state’s lawyers were arguing on the “void” side, though the comparison they’ve selected to do so was pretty special:
“Had the clerk issued marriage licenses to 12-year-olds in violation of state law, would anyone seriously contend that each 12-year-old … is entitled to a hearing on the validity of his ‘license’?”
Commonwealth Court Judge Dan Pellegrini promised a “swift verdict“ and said the central issue at stake is “how power is allocated in the commonwealth of Pennsylvania.”
Even if these particular marriage licenses are void, what Hanes has done is still immeasurable: he’s given these couples enough to sue on, should the current legal actions in Pennsylvania need a little extra umph. While some may agree with Republican Governor Tom Corbett that the real problem here is one person deciding what is and isn’t constitutional and choosing to follow or not follow laws accordingly, it certainly isn’t the first time that marriage and/or civil union licenses have been granted as a form of civil disobedience. Take, for example, the issuance of civil union licenses in Arizona. Or the couples applying for marriage licenses in Mississippi. Or the seminal groundbreaking directive issued by then-San Francisco Mayor Gavin Newsom to his county clerk in San Francisco in 2004, which enabled the issuance of 4,000 same-sex marriage licenses in 29 days before the California Supreme Court halted the practice. In fact, Newsom’s action inspired a county clerk in Sandoval County, New Mexico, to begin issuing same-sex marriage licenses — until New Mexico Attorney General Patricia Madrid declared the licenses invalid and forced Sandoval County to stop issuing them in July of 2004. But Newsom’s move paved the way for eventual marriage equality in the state of California (which was reversed by Prop 8, which has since been ruled unconstitutional) and efforts nationwide.
Pennsylvania is the only state in the Northeast to have neither same-sex marriage nor civil unions – both are expressly verboten in state law. Today’s New Mexico story, though, is a bit different. In New Mexico, it’s a judge’s decision and not the clerk’s decision that lead to Grant County’s equal granting of licenses: Judge J.C. Robinson issued the order to the clerk to begin issuing marriage licenses to same-sex couples in order to not discriminate. The thing is, Grant County isn’t the first in New Mexico to do so – it’s the seventh. New Mexico doesn’t have any rules saying that same-sex marriages are legal or illegal – it’s the only state that doesn’t. And neither Republicans in favor of defining marriage as between a man and a woman or Democrats in favor of leaving marriage open to same-sex couples have been able to pass any legislation at a state level. So county clerks and judges grew tired of waiting and began to issue the licenses, starting with Lynn Ellins of Doña Ana County issuing licenses on August 21st. This will force decisions to be made on the issue, and there are district court rulings in favor of same-sex marriage. Even if those rulings are limited to very small areas and individual counties, it’s most certainly a start for New Mexico as a whole. Just today, Los Alamos County became the eighth county in New Mexico permitted to issue marriage licenses to same-sex couples.
There is opposition in New Mexico, obviously – William E. Sharer, Republican state senator from Farmington, sued Ellins last Friday to stop him from issuing any more marriage licenses, calling the clerks’ actions “lawless.” The clerks’ actions in New Mexico are far from lawless: in many cases, they are following court rulings. Many county clerks refuse, however, to issue marriage licenses to same-sex couples until a judge orders them to do so, pointing to the words “husband” and “wife” on the forms as justification for their refusals.
Here’s why you should be really into these two stories:
The importance of local government – local government has some of the most immediate impact on our daily lives (schools, garbage collection, etc), but only sometimes do we get to see local government make a state-wide splash that gains national attention. And yet here, in two instances, we’ve got just that. AND, at least in the case of Montgomery County, these changes aren’t happening in extremely liberal areas. Montgomery County is more liberal now than it has ever been, with 45% of its registered voters identifying as Democrats, but in my experience it’s a fairy socially conservative place — not the most, but not the least conservative either. From 1968-1988, Montgomery County always voted in favor of the Republican presidential candidate, but for the last two election cycles the County has gone about 60-40 in favor of the Democratic presidential candidate, with more narrow Democratic victories in presidential elections dating back to 1992. Republicans dominated county politics until 2007, when five row offices went to Democrats. Regardless, having spent time in Montgomery County personally, it certainly would not have been the county in Pennsylvania I’d have bet on to begin issuing marriage licenses.
It’s also REALLY AWESOME when civil disobedience occurs from within the governmental system. While some might take it as a sign of fractured belief systems, or a government’s inability to control its employees/elected officials, I consider it a huge boon – government is working and not everyone is a sheep-person. There is room for change, for unstoppering bureaucratic clogs. However, the potential cultural homogeneity and consequential radicalism enabled by municipal government can often work against us (it is this dynamic that enabled the Tea Party’s rise to power, for example), and that often applies to civil disobedience by government and government employees within those districts as well. We’ve seen what one could consider civil disobedience used for a number of unsavory causes, like New York sheriffs and county clerks refusing to enforce certain provisions of the SAFE Act’s gun control law and public school officials continuing to hold racially segregated proms decades after Brown v. Board. So there is a part of me that always worries: what if this kind of power, this one or several people deciding what is or is not constitutional, is used against marginalized communities? Still, even with that small part of my brain, I know that in the fight for marriage equality, it has been one local action after another leading towards more universal change, and thus what’s happening in New Mexico and (hopefully) in Pennsylvania will undoubtedly be a giant leap for gaykind.