First it was Attorney General Kathleen Kane deciding she could not defend Pennsylvania's ban on marriage for same-sex couples after the American Civil Liberties Union filed a federal lawsuit seeking to overturn the law. Now a register of wills in Montgomery County has decided that he will issue marriage licenses to gay couples in defiance of the law.
The two developments have separate causes but the same context. Both involve public officials claiming a moral and constitutional right not to uphold a law they don't like. That's a problem, especially as it raises hopes without realistically advancing the cause of gay marriage in Pennsylvania.
Both decisions came in the aftermath of two Supreme Court rulings -- one upholding the right of California gay couples to marry, the other finding a provision of the federal Defense of Marriage Act unconstitutional as it applied to federal benefits.
For Register of Wills D. Bruce Hanes, a Democrat, the turning point was a request to his Norristown office by a lesbian couple seeking a marriage license. He decided to come down "on the right side of history and the law" and grant it. The women, both doctors who have been partners for 14 years, did not go ahead with their application but the register's offer has been taken up by other couples.
Mr. Hanes may indeed be on the right side of history -- as supporters of marriage for same-sex couples, we hope he is -- but he is not on the right side of the law. Not according to the U.S. Supreme Court. Despite the growing myth that the court simply declared gay marriage unconstitutional, Justice Anthony Kennedy did not go that far in his majority opinion in U.S. v. Windsor. In fact, he said it was up to the states to define marriage -- as Pennsylvania did in banning same-sex unions in 1996 .
It may be that the court will go further in the future, but in the here and now the law is the law. As we said with Ms. Kane, the problem with public officials picking and choosing what laws to respect or not is that the process invites political payback. What complaint will liberals have when a conservative officeholder decides that laws protecting abortion rights -- or laws outlawing racial discrimination -- should be ignored?
It is absurd that a register of wills in a single county could issue marriage licenses to Pennsylvanians that are illegal under state law. At least Ms. Kane was elected statewide, but nobody outside Montgomery County voted for its register of wills. Ms. Kane was the first down the slippery slope to anarchy; now she has company.