No kidding: The state fumbled its argument on gay marriage

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The Corbett administration learned last week that dealing with the emotions surrounding the issue of gay marriage -- even in a legal brief -- is not kid's stuff.

In standing up for the 1996 Pennsylvania law that restricts marriage to one man and one woman, the administration appears to be on strong legal ground -- but an unfortunate choice of words gave offense. It likened gay and lesbian couples who want to marry to 12-year-olds.

It happened like this. In July, the administration filed suit seeking to halt same-sex marriage licenses that were being issued by Montgomery County Register of Wills D. Bruce Hanes.

This newspaper, while sympathetic to the desire of same-sex couples to marry, said at the time that it was another case of a public official defying a law on his own whim. The fact is, contrary to Mr. Hanes' view, the Supreme Court recently stopped short of declaring marriage laws like Pennsylvania's completely unconstitutional.

In advance of a Commonwealth Court hearing on the lawsuit Wednesday, the commonwealth filed a brief last week making its case. It included the following: "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'?"

In response to a subsequent furor, Pennsylvania General Counsel James D. Schultz issued a statement saying that his office was "deeply disturbed and disappointed" by the coverage.

"Contrary to recent headlines, the administration does NOT equate same-sex marriage to the marriage of minors. Instead, the commonwealth's legal brief, which totals 25 pages of detailed legal arguments, responds to an elected official in Montgomery County ignoring the law of the commonwealth. In one passing reference, the legal brief notes other individuals whose marriages are excluded by Pennsylvania law would have no standing to intervene in this type of case -- and in any other circumstance the court would never entertain that type of effort to expand the scope of a case."

That is persuasive up to a point. It is legitimate to argue that there are classes of persons -- brothers and sisters, for example -- who cannot legally marry each other. But in choosing children for their example, the administration's attorneys were tone deaf, moving the discussion beyond consenting adults, where it belongs, and doing it in an insulting manner.

It was simply a bad choice of words -- and the people they insulted are not the types to be sent to bed without their supper.



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