Cross-posted from the Pennsylvania Tenth Amendment Center.
On Tuesday of this week, the Norristown Patch announced that same sex couples can now marry in Montgomery County, Pennsylvania. The Patch went on to elaborate that the Montgomery County Register of Wills, Bruce Hanes, had “worked closely with the Register of Wills solicitor Michael Clarke and Montgomery County Solicitor Raymond McGarry to study ‘every aspect of the law,'” subsequent to a request for a marriage license from a same sex couple. That couple evidently bowed out, but Hanes went public with the county’s position – saying, “I cannot ethically defend the constitutionality of Pennsylvania’s version of DOMA as I believe it to be wholly unconstitutional”.
From the Patch,
According to Hanes, he took the oath of office 19 months ago to uphold the U.S. and Pennsylvania Constitutions, and cited Article 1, Section 1, of the Pennsylvania Constitution, which provides for the rights of men, among which is “pursuing their own happiness”
So what Hanes was saying was that he believed there was a conflict between the state law and the state Constitution and when the law conflicts with the Constitution, the Constitution takes precedence. In other words, Hanes was prepared to nullify the state DOMA law because he believed that it conflicted with the state Constitution.
On Wednesday, the county took it a step further and acted on these stated principles. The Norristown Times Herald reported that five same sex marriage licenses were issued Wednesday.
We can agree or disagree with the county’s interpretation of Article 1, Section 1, which states:
“All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.”
Does pursuing our own happiness include an inherent right to same sex marriage? The Tenth Amendment Center’s focus is on the federal Constitution, so I’ll leave that question as an exercise to the reader. Hanes’ position is an elected office. Ultimately, it is up to the voters of Montgomery County to decide if they agree with his interpretation. There’s no denying, however, that the county has taken a principled stand based upon the belief that it does.
Some people might call this “anarchy” or “lawlessness”. I call it negotiation. As I discussed, here, the questions will be settled over time. We don’t need the final answer today and we certainly don’t need to reach a final answer through the exercise of brute force by one constituency over another. One jurisdiction at a time is how decisions should be made and consensus should be reached in a free country. If we truly believe in self-government, then we should have the patience and trust for the voters of Montgomery County to answer this question for themselves.
We welcome same sex marriage advocates to the nullification movement and look forward to working with them to nullify a host of constitutional violations at the federal level.
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