Judge says couple can have self-uniting marriage

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A federal judge believes that a couple in Pennsylvania have a right to obtain a self-uniting marriage license.

U.S. District Judge Joy Flowers Conti yesterday granted a temporary restraining order to Mary Jo Knelly and David Huggins-Daines, who plan to solemnize their marriage to each other tomorrow before family and friends but without an officiant present. The Allegheny County register of wills office will drop its attempt to deny licenses for self-uniting marriages.

Despite her strong feelings on the law, Judge Conti stopped short of making a ruling on whether county officials are interpreting Pennsylvania's Marriage Act incorrectly.

"Quite frankly, I think the law's pretty clear," she said. "[But] there's such a strong state interest in marriage, the state system should be the one deciding."

After having each of his arguments soundly defeated -- mostly by the judge herself during the 90-minute hearing -- Allegheny County attorney Timothy Finnerty said that would not be necessary.

"The register will comply with your order, from this date forward," he said.

Ms. Knelly and Mr. Huggins-Daines filed a lawsuit against the county last week, claiming that its denial of a self-uniting marriage license was a violation of the First Amendment's establishment clause, which says that the state shall not prefer one religion over another.

The county had argued in denying the license that it is only available to couples where at least one person can show proof of membership in a religion that does not have officiating clergy, such as the Quakers or Baha'i faith.

"For the register of wills to have a religious litmus test to decide who gets a self-uniting license is about as clear a First Amendment violation as I can think of," said Witold Walczak, legal director of the American Civil Liberties Union of Pennsylvania, which filed the complaint on the couple's behalf.

In her decision, the judge focused on the language of the Marriage Act, as well as four treatises written by legal scholars who have analyzed it.

She read from each of them.

"They're all consistent," Judge Conti said. "No one has taken the construction of the statute in the way the register of wills has.

"It's long been the law in Pennsylvania. You can have a statutory marriage where they unite themselves."

She added that she would be surprised if a judge in state court interpreted the law differently.

"I don't see the harm to the county, which has had these self-uniting marriages going on for decades, decades, decades, decades," she said, her voice getting louder.

The judge also cited the fact that the county office issued a self-uniting license to another couple just three months ago without any proof of a religious background.

Mr. Finnerty said that was a mistake, and that the office processes more than 5,000 marriage licenses each year.

"Sometimes when things get busy, the clerks just let it slip through," he said.

He tried to argue that when the state Legislature abolished common-law marriage in 2005, it also did away with a couple's right to self-unite, except in cases where they can show proof that they belong to a religious sect that does not have clergy.

"Nowhere does it say that two people can join themselves in marriage here in the commonwealth," Mr. Finnerty said. "All of the cases they cite in those treatises predate the abolition of common-law marriage."

Judge Conti rapidly shut that argument down by noting the major difference between common-law marriage and self-uniting marriage. "A common-law marriage is without any public recordation."

As part of his case, Mr. Finnerty, who argued all along that the issue belonged in state court, said that he was trying to avoid a legal quagmire in which the state's 67 counties interpret the Marriage Act differently.

After the hearing, he said: "We just wanted a judge to say 'This is the way it's going to be.'"


Paula Reed Ward can be reached at pward@post-gazette.com or 412-263-2620.


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