Amid the typical discussions about zoning and amplified music at this week’s borough council meeting in New Hope was mention of an Aug. 16 letter from Mayor Larry Keller to council in which he explained the reasons for his declining the recent request “by two gentlemen to officiate their wedding.”
The letter went on to say, “As part of the official duties of the office of the elected mayor of New Hope Borough, I am permitted by law to solemnize marriages between persons who produce a marriage license issued by any County Clerk of Orphans’ Court. This authorization is not mandatory. A Mayor is not obligated to officiate any wedding.
“Since mid-July, 2013 the Montgomery County Clerk of Orphans’ Court has been issuing marriage licenses to same-sex couples. The Montgomery County Clerk of Orphans’ Court has been sued by the Pennsylvania Department of Health over these marriages…and there are other lawsuits pending in Pennsylvania on the constitutionality of same sex marriages.
“Due to these outstanding lawsuits,” the letter continued, “I must respectfully decline to officiate a marriage for these licenses issued by the Montgomery County Clerk of Orphans’ Court. While I fully respect the desire of these individuals to marry, as mayor, my first obligation is to New Hope Borough. I cannot, in good conscience, put New Hope Borough and myself at legal risk for breach of my official duties as mayor of New Hope Borough until the lawsuits are resolved.”
Indeed, a Pennsylvania court will hear arguments next month on Governor Corbett’s move to halt a Montgomery county official from issuing same-sex marriage licenses. Corbett says the clerk and others are violating the state’s one-man, one-woman marriage law and has gone to Commonwealth Court via the State Health Department to try and stop Montgomery County Register of Wills D. Bruce Hanes from issuing the same-sex marriage licenses.
Hanes has issued licenses to more than 130 same sex-couples since July, saying that Pennsylvania’s marriage law is “arbitrary and suspect.” He began issuing marriage licenses after Attorney General Kathleen Kane announced she would not defend the state’s 1996 law prohibiting same-sex marriage in a federal lawsuit filed by the American Civil Liberties Union because she believes the law is “unconstitutional.”
Professor of Law at Widener Law School John G. Culhane specializes in the rights of same-sex couples, and after reading Keller’s letter, sympathized with the difficult balance the mayor apparently must strike between showing respect for the requesting couple and his concern over potential litigation. “Hypothetically, if he were to officiate a wedding involving people who clearly don’t have the capacity to marry, like minors, there could be legal consequences — the marriage could be declared invalid or he could be ordered never again to issue a marriage license — but likely not much beyond that.”
But generally, for a mayor officiating a same-sex wedding, Culhane said, “Is there a risk of serious consequences? Probably no.”
Donna Deely, the Democratic contender for Republican Keller’s job in an election scheduled for this November, took it a step further: “If I am elected mayor I will officiate same-sex weddings. I think the risk there is minimal, and it’s the right thing to do, not only because it reflects the current prevailing legal winds and the country is moving in that direction, but also given New Hope’s rich tradition of acceptance. That’s why we chose to live here, and in my heart of hearts, I think it’s the fair and just thing to do.”
But will officiating gay marriages expose the borough to undue risk? Says Deely, “What that clerk is doing in Montgomery County is civil disobedience, so it must be studied closely to fully understand the potential implications for the borough, but by officiating these weddings, I feel that I would be coming down on the right side. This also could help tourism, when you think of all the B&Bs, restaurants and shops.”
Eric Lee, long-time resident and business owner, said of Keller potentially officiating same-sex weddings, “He wouldn’t be legally responsible because he’s doing it privately. Larry Keller has been and hopefully will continue to be a supporter of gay causes, and always a friend to the gay community, which is why I don’t understand his position.
“I’ve been voting for him every time he’s run for mayor, and now I’m going to second guess that,” continued Lee.
Countered Keller in an interview, “This is not just about me and my conscience. I support freedom to marry for same sex couples.” Keller says he also applied “a couple of weeks ago” to be included in the Mayors for the Freedom to Marry website listing, where he is currently not displayed among the 15 Pennsylvania signers.
Keller’s reluctance to engage in activity that may draw litigation seems to be founded in personal experience: he was questioned some years ago during a politically-charged environment about the propriety of the charitable donation of marriage fees he had collected, a charge he defended “at great personal cost.” Keller said he sought the advice of Borough Solicitor T.J. Walsh in this marriage request, who said “You don’t want to touch this. If he [Hanes] did something they said is illegal, you are going to be an accessory to an illegality.”
Said the mayor of the potential for lawsuits stemming from officiating same-sex marriages, “T.J. believes the risk is substantial.”
David S. Cohen, associate professor of law at Drexel University’s Earle Mack School of Law disagreed. “There is no clear decision from any binding court in Pennsylvania or the Federal court about the state’s marriage law, but officials like Attorney General Kathleen Kane and Montgomery County Clerk Hanes both have decided that the marriage law is unconstitutional. As a law professor and one of the attorneys representing same-sex couples in Montgomery County, I agree wholeheartedly,” said Cohen.
“If the mayor doesn’t want to go along with what the Attorney General and Montgomery County Clerk are doing, he will find himself on wrong side of history,” added Cohen.
Said Daniel Brooks, founder and president of New Hope Celebrates, which serves the LGBTA community of New Hope and Bucks County, “My feeling is that the mayor basically doesn’t want the borough to be dragged into same-sex lawsuits pending in Pennsylvania. My recommendation is that he talk to and poll as many people as possible so his decision reflects what constituents really want.”