Civil Disobedience in Pennsylvania’s Montgomery County

Heather Greene —  August 18, 2013 — 32 Comments

What happens when one suburban county decides that it doesn’t like its state’s laws and openly defies them? 

It all began on June 26th when the Supreme Court of the United States (SCOTUS) declared DOMA (The Defense of Marriage Act) unconstitutional in the case of The United States vs. Windsor. By that ruling, all legally married same-sex couples are now entitled to federal benefits. The key phrase here is “legally married.”  The U.S. federal government does not issue marriage licenses. That job falls to the states, many of which do not recognize same-sex marriage at all.

One of the these is Pennsylvania who, in 1996, was one of six states to adopt the proposed DOMA statutes which read:

“Marriage.” A civil contract by which one man and one woman take each other for husband and wife.  (Section 3304, Title 23, Part II, Chapter II, Section 1102)

But this Pennsylvania state law didn’t sit well with local Montgomery County officials who said we “want to come down on the right side of history.”  After the SCOTUS ruling, Montgomery County, the third largest county in Pennsylvania, began issuing licenses to gay and lesbian couples in direct violation of the statute. To date, Montgomery County as issued over 115 licenses to same-sex couples.

Love_Park

One of these licenses was issued to Wiccan High Priestesses Lady Emrys and Lady Aradia of Innana’s Well of Philadelphia. The two women met in 2006 while attending Pagan classes in Atlanta. They have been sharing their lives ever since. When Montgomery County announced its intent, the couple jumped at the opportunity to finally enjoy the benefits of a legally binding marriage. Lady Emrys recalls:

Someone posted an article on Facebook about Montgomery County going “rogue.” My initial thought was that the state had probably already put a stop to it and we had likely missed our chance. I was thrilled to hear the following day that they continued to issue licenses to same-sex couples. A couple of days after that, when our schedules allowed, we went to the Clerk’s office and got our license. It was thrilling to say the least!

Register of Wills

D. Bruce Hanes, Registrar of Wills

The County Clerk and Registrar of Wills, D. Bruce Hanes, has now become somewhat of a local hero. He told the Associated Press that he “believes he has the authority to issue the licenses in part because of a U.S. Supreme Court decision.” He reports that there has been a “steady influx of five to 10 couples a day and only polite demonstrations by either side.”

Lady Emrys and Lady Aradia commented how “deeply touched and appreciative” they are of Hanes and his staff.  He was polite, enthusiastic and even apologetic when explaining that the County marriage forms still ask for the names of a “husband” and “wife.” Unphased the couple remarked  “[We are] inspired and awed by [the staff’s] courage and willingness to take a stand against discrimination.”

They also thanked Attorney Robert Heim with Dechert law firm, who has taken up the case for the county.  What case?  The State of Pennsylvania is now suing Montgomery County for flagrant disobedience.  In late July, Governor Tom Corbett and the State’s Department of Health filed a petition with the courts to force Hanes to “cease and desist.”  On Monday, August 12th, they filed another brief to move forward with the suit.

In support of the Governor’s position, Pennsylvania lawmaker Daryl Metcalf said:

For a man to start violating the law as [Hanes] has and commit such a lawless act should be offensive to everyone, no matter what side of the issue you’re on. It doesn’t matter how many licenses he issues, they’re not worth the paper he’s printing them on.

Now, here’s where it becomes a bit more complicated.  On July 9th, the ACLU and ACLU of PA filed its own federal lawsuit against Pennsylvania for its discriminatory statutes on marriage. In a press release, the ACLU stated:

The plaintiffs come from across the commonwealth and from all walks of life… [They] reflect Pennsylvania’s rich diversity: they are African-American, Caucasian, Latino and Asian; they are Methodist, Baptist, Catholic, Quaker, Jewish, Buddhist, and secular. Many have been together for decades, and some are raising children together. The situations faced by these couples are similar to those faced by the thousands of same-sex couples in Pennsylvania who are being denied the basic rights that are afforded by marriage.

That diversity also includes many Pagans like Lady Emrys and Lady Aradia. These two pending court cases will determine not only their legal fate as a couple but also affect their ability to perform legal marriages as Wiccan Clergy for other same-sex couples in the State. Lady Aradia said:

It’s my hope that Pagan clergy will be safe-havens for Pagan LGBT individuals and couples making life-changing commitments, just as they would for straight couples seeking spiritual guidance and counseling for marriage and starting families.

From Lady Emrys and Lady Aradia's Handfasting

From Lady Emrys and Lady Aradia’s Handfasting

To add more fuel to the fire, on July 11th, Pennsylvania’s Attorney General, Kathleen Kane spoke out in defense of marriage equality saying that she would not support Pennsylvania’s Defense of Marriage Act in court.  In a press release, Kane said:

We have always stood strong in the face of discrimination, which in its various forms has never withstood the test of time…It is our duty, each and every one of us, to protect the constitutionality, to protect the rights and dignity of others, and to protect the equality of all men and women in this Commonwealth. 

So Pennsylvania’s saga continues with the Governor locking “horns” with the Attorney General as a rogue county official continues to issue same-sex marriage licenses in defiance of state law.  It is has been called “civil disobedience at its best.”

Lady Emrys believes the situation will only escalate. She said:

This is likely going to turn into a battle similar to Prop 8 in California. I, for one, am concerned about repercussions the Clerk and his staff may face because of their stand. I think everyone feels certain, however, that in the end marriage laws that exclude same-sex couples from the institution of marriage will be deleted. 

Lady Aradia, who works in Montgomery County, agreed and added:

When [marriage equality is] brought up, people are aware of [what is going on.] It seems as if the topic has been normalized… There’s an acceptance of this movement and more than anything, a sense of, “it’s about time.” 

A recent Franklin and Marshall Poll reflects her observations, reporting that 52% of the state population supports the elimination of Pennyslvania’s DOMA statutes with 8% undecided.

Selena Fox and Washington DC Pagans performing a rite for freedom and justice in the DOMA decision back in March.

Selena Fox and Washington DC Pagans performing a rite for freedom and justice in the DOMA decision back in March.

For many Pagan LGBT members and those of similar minority religions, the elimination of these DOMA statutes has additional meaning. As noted by Lady Emrys:

What excites me most about this, aside from the joy of being legally joined with my partner, is that I see this as a step toward true religious freedom in this country. The exclusively heterosexual right to marriage has always been religious (primarily Christian), regardless of how the argument is packaged. The issuing of marriage licenses and certificates to same-sex couples frees people of the constraints of religions to which they do not subscribe, constraints which have no place in the United States.

Until these cases are settled, Lady Emrys and Lady Aradia ask that “ Pagans…throughout the U.S. surround Hanes and his staff with loving and protective energy so they can continue to perform their important work.”  To this day, Montgomery County is still issuing licenses. The ACLU’s case will be heard in a Federal court in Harrisburg on September 30th. The story has not yet been written and we will be watching for new developments.

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Heather Greene

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Heather is a freelance writer and Pagan spirit living in the Deep South. She is currently the National Public Information Officer for Covenant of the Goddess and has worked extensively with Lady Liberty League. Heather's work has been published in Circle Magazine and elsewhere. She has a masters degree in Film Theory, Criticism and History with a background in the performing and visual arts.
  • kenofken

    This is a clear sign that the wall is coming down, and it will happen faster than we ever imagined. The homophobic mindset behind anti-gay marriage laws have become as odious and politically untenable as Jim Crow laws were in their final days. No one with a political future or who otherwise cares about their public legacy wants to go to bat for that vile position. There will be quibbling over the legalities of how the licenses were issued, but one way or another, Pennsylvania will have gay marriage. The Supreme Court left no realistic way to do that, even though it didn’t force states’ hands.

  • Charles Cosimano

    There are a lot of local politicans who can base a good political future on both sides of this depending on where they are. But think of the precedent if this succeeds and counties in seriously red parts of the country do the opposite when SSM is legalized.

    • Baruch Dreamstalker

      In the instance, a county official who refused to issue a SSM license when state law mandates that it issue, can be sued by a refused party. There is no refused party in Montgomery County PA.Your larger point is that if one side can take a moral stance against obeying a law, so can the other side. Always true, and a reason why civil disobedience advocacy generally includes caveats: Did you try other, legal approaches? Are you breaking more laws than necessary to arrive at justice? Etc,

      • Lēoht Sceadusawol

        Civil disobedience is a dangerous thing. If nothing else, it states than only the laws that you agree with should be followed.

        Which makes laws less ‘laws’ and more ‘guidelines’.

        • Baruch Dreamstalker

          It is dangerous, and so should only be used with caution. Generally in circum-stances where leaving a situation to “resolve itself” could be even more dangerous.

          • Lēoht Sceadusawol

            I think different people have different ideas of what is dangerous.

          • Baruch Dreamstalker

            Absolutely. People who were baffled when Martin Luther King got the Nobel Peace Prize, did not view the pre-Civil Rights Movement South as a dangerous powder keg waiting for a spark. Evidently those who made the award, did.

          • Lēoht Sceadusawol

            MLK getting the peace prize, I get. Obama, not so much.

          • Baruch Dreamstalker

            Even Obama agrees with you.

          • kenofken

            Obama got that prize simply for not being Bush. It was a way for the European intellectual establishment to give the finger to the Bush era one last time.

      • JB

        Civil disobedience is not “dangerous”. Rather, it is the wellspring from which flows genuine democracy and autonomy based upon voluntary association and affinity (as contrasted with “representative” republican pseudo-democracy), and blessed resistance to the profoundly undemocratic capitalist state. The only “side” that can take an ethical stance against obeying a law happens to be the “side” that makes up the vast majority of the world’s population: the proletariat. The oppressors have no ethical standing. The military, the police, the capitalists, and the politicians who serve them are comparatively few in number. Therefore, it is incumbent upon us to organize, in order that the majority of people will come to realize that their liberation is bound up with that of their sisters and brothers, and in order that solidarity may prevail in the face of great alienating forces until—united—we claim our power and exercise it in the form of general strikes, sabotage, and other forms of disobedience. Under state-capitalism, it is necessary to break many (perhaps most) laws to “arrive at justice”.

        As for gay marriage? Assimilation into the institutions of heteronormative capitalistic patriarchy is not liberation. Some may choose to avail themselves of the relative benefits that marriage provides; but this does not change the fact that the institution of marriage is a reactionary holdover from ancient times—one that should be abolished along with the state that sanctions (or fails to sanction) it.

        • Lēoht Sceadusawol

          “Civil disobedience is not “dangerous”.”
          It is when it involves breaking the law. It shows an inherent lack of respect for the law.

          Since law is the foundation of societal stability (reduce it to the most basic law – don’t kill each other), to not respect the laws of society is destabilising.

          • Deborah Bender

            Civil disobedience usually involves breaking the law. The exception would be when the purpose of the action is to call attention to the fact that the government is not abiding by its own laws (as is the case with many protests in Communist countries). It is one way of calling attention to the injustice or unwisdom of a law, or a system of laws, or the failure of the government to abide by its own laws. It is destabilizing by intention; the question is always whether the end justifies the means.

            Classical civil disobedience is nonviolent and participants are willing to go through the government’s legal processes and accept punishment. The willingness to be punished or abused for standing up for a principle creates public sympathy for the law breakers and their cause (when it works as intended). Without this willingness, civil disobedience will (rightly) be perceived as disrespect for the value of laws in general.

            In some cases, people do acts of civil disobedience without any hope of changing the system, simply because their conscience forbids them from doing something that the law demands. Conscientious objectors in a country with compulsory military service, for example.

          • Lēoht Sceadusawol

            “Civil disobedience usually involves breaking the law.”
            And that is what is dangerous.

            “In some cases, people do acts of civil disobedience… because their conscience forbids them from
            doing something that the law demands.”
            Imagine if everyone did that.

        • Baruch Dreamstalker

          JB, I can and do agree with everything you say about civil disobedience and still judge it dangerous.On gay marriage, I’ll say to you what I say to the right: My gay and lesbian friends who want to get married motivate me beyond debate.

  • Obsidia

    Same-Sex marriages are also being performed in Allegheny county by John Fetterman, mayor of Braddock (where I was born and grew up). I’m so proud of him!!! Here’s a place to watch a video with Fetterman talking about why he is doing it…plus comments from Brian Sims, the first openly gay representative in PA.

    http://www.nbcnews.com/id/45755822/ns/msnbc-the_ed_show/vp/52730971#52730971

  • Echo Moon

    thank you to d bruce hanes and his staff, thank you to pa’s attorney general kathleen kane and congradulations to all who have been married!!!!

  • Tauri1

    Pennsylvania will lose because Federal Law trumps state law.

    • Tasman

      It is worth remembering that same-sex “marriage” is by no means countenanced by all Pagans or Heathens. Moreover, those of us who oppose it do not owe our conviction to any latent Christo-centrism. Heterosexual marriage was a near-universal norm in Pagan Antiquity and some of us reverance Tradition sufficently to want to maintain or revive the sexual mores of our beloved ancestors. I feel this needs to said, simply because there is no consensus on this issue within the Pagan community, but one would not garner that impression from reading quite a few web postings. I’m socially conservative. I’m also a Pagan. I’m not alone.

      • http://www.wildhunt.org/blog/ Jason Pitzl-Waters

        “there is no consensus on this issue within the Pagan community”

        The vast majority of national Pagan organizations explicitly or implicitly support marriage equality, including COG, Circle, ADF, and The Troth. Nor have I encountered significant resistance to marriage equality from the many notable Pagan leaders and clergy I’ve been in contact with at festivals and conferences.

        I have no doubt there are socially conservative Pagans out there who want to deny same-sex couples equal rights (and rites), but they are very much in the minority. Most conservative Pagans and Heathens I meet are fiscally conservative libertarians and have no interest in meddling with the private lives of others.

      • kenofken

        “I’m not alone.”
        You’re well on your way on this issue.

      • Lēoht Sceadusawol

        The issue is not whether you (or I), personally, agree with same sex relationships.

        It is whether you (or I) believe that they should be recognised by the state.

        I have a very apathetic stance on the issue of same sex marriage. It really does not concern me in the slightest, as it is not something I want.

        However, I don’t have an issue with others doing it. As such, I may not campaign for it, but I’m not going to block it, either.

        I see no reason to, it doesn’t harm anyone and more freedoms are better than fewer, right?

      • http://www.xkcd.com/285 Eran Rathan

        Tasman wrote:
        Heterosexual marriage was a near-universal norm in Pagan Antiquity and some of us reverance Tradition sufficently to want to maintain or revive the sexual mores of our beloved ancestors.

        Ah, like pederasty?

        • Tasman

          That is an unworthy comment.

          • Ursyl

            That is historic reality in some parts of pre-Christian antiquity, not that it ended with the coming of Christianity either, but that’s an entirely different topic.

            There were any number of marriage forms throughout history. To claim that only one is traditional is to ignore our Pagan history.

          • kenofken

            If you’re going to make the claim that traditions are inviolable by virtue of their age and fact that the ancients followed them, you need to deal with the baggage that logically follows. Our ancestors may have held to a certain norm of heterosexual union (which is complex and highly debatable), but the also thought slavery was perfectly acceptable and that rape was a legitimate instrument of conquest. They also in many cases thought there was no disgrace in pederasty, or that the disgrace was born solely by the victim. If we’re going to reverence everything in antiquity just because it came from antiquity, we better understand what we’re signing on for.

  • thelema93

    I’m glad to see a DOMA being ignored, but the point at the end about marriage being religious is also true. Getting the state completely out of the marriage business and letting opposite sex couples who join at City Hall get civil unions, as well, has merit. Let churches and temples marry whom they wish, and let the state offer legal contracts, not quasi-Christian ceremonies.

    • Crystal Hope Kendrick

      It depends on what society we’re talking about and in what point in history. As far as it goes in the U.S., I’m not convinced “marriage” is a religious term. It has benefits to the welfare of the populace and therefore for the state by providing loving couples (or more) with stability and a legal framework to divide property, confer beneficiaries in event of death or illness, and a legal structure to raise children if the couple/group in question so chooses. Supporting families of all sorts is beneficial to the state, thus I have no issue with the state issuing licenses.

    • Deborah Bender

      What you are referring to is the road not taken. Five or ten years ago, it might have been possible to mount a campaign to remove the word “marriage” from all the laws in every U.S. jurisdiction and replace it with “civil union”. Heterosexual and same-sex couples could have had their civil unions recognized by the government, with exactly equal rights and responsibilities. California would have been a good place to start, since it had a civil union law for same sex couples that was identical to marriage in every detail except name.

      If this had been accomplished, everyone would have equal rights under the law and the definition of marriage would have been left as a matter of private opinion on which people could disagree without interfering with each other. You say you’re married, I say (or think to myself) you’re not, but the law says you have a civil union which I am bound to recognize. Everyone has a right to an opinion.

      However, it is a simpler matter politically to add a new group to a class already existing in law than to change the laws wholesale and tell all the married heterosexuals that now they have a civil union under law. It’s understandable; the social conservatives already say that allowing gay people to marry is an attack on the institution of marriage. A campaign to eliminate marriage as a legal status would have given them stronger ammunition for people who aren’t paying close attention.

      What we have instead is one group imposing its moral views on everyone, formerly the “only heterosexual monogamous marriage is real marriage” group and now the “marriage equality” group, both of whom are absolutely convinced that they are in the moral right. This kind of issue is why separation of church and state is such a good idea.

      • Ursyl

        A rose by any other name?
        My husband’s and my marriage is about as “civil” as it gets-Quaker license in PA, no minister, no church. We are not civil unionized; we are married.

        • kenofken

          All state marriages in this country are nothing more (or less) than civil unions. They’re contracts under civil law. Marriage, as the anti-SSM movement contends, refers to religious sacraments. They believe that because the religious and civil forms overlapped for so long that Christians should hold the power to enforce the sacramental understanding of marriage on the rest of us through civil law. The concepts of marriage and civil union (or civil marriage) should be disentangled once and for all. They won’t be, because all sides have too much invested in the fight.

  • Deborah Bender

    Openly breaking the law for reasons of conscience should never be done lightly, whether one is a public official or a private citizen. It cuts all ways. Jury nullification could be a jury refusing to convict someone for possession of a small amount of an illegal drug because they think the penalties are too severe. Or it could be a jury refusing to convict someone who murdered a member of some despised group because they don’t care what happens to that group. It could be a county clerk refusing to grant a marriage license to a same sex couple. It could be a pharmacist refusing to dispense contraception to a minor with a valid prescription. It could be a divorce court judge refusing to grant custody of children to a Pagan.

    In a way, breaking the law surreptitiously (like a cop disappearing or manufacturing evidence because of how she feels about a suspect) shows more respect for the law than open defiance of the law does. People who defy the law for reasons of principle should be prepared to accept the consequences, if they have any respect for the rule of law in general.