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Pa. judge hears arguments in landmark gay marriage case

Montgomery County Register of Wills Bruce Hanes in his office on Aug. 29 in Norristown, Pa. Jeff Fusco / Getty Images for NBC News

NORRISTOWN, Pa. – A judge in Pennsylvania on Wednesday heard arguments over whether an elected county clerk can grant same-sex marriage licenses in defiance of state law.

Commonwealth Court President Judge Dan Pellegrini indicated he would rule quickly in the case, filed by the state’s Health Department after the clerk, D. Bruce Hanes, began granting the licenses on July 24 -- one month after the U.S. Supreme Court declared part of the federal Defense of Marriage Act unconstitutional. 

Pellegrini has to decide if Hanes acted illegally. State attorneys have argued that he overstepped his authority in issuing the paperwork and the documents have no “value or legitimacy.” So far, Hanes’ office has issued 165 licenses to gay couples.

Hanes, 66, who doles out marriage licenses as Montgomery County's register of wills and clerk of the county orphan’s court, has become something of a gay rights hero for granting marriage licenses to same-sex couples despite a state law banning such unions. But the Civil War buff and married father of two says he is only doing what’s right.

“I don’t see myself as a crusader,” he said.

If the court sides with Hanes, the ruling could bring same-sex marriage a step closer in Pennsylvania, the only Northeastern state that does not permit gays to marry or enter into civil unions. If the court rules in favor of the state, the marriage licenses Hanes issued could be rendered useless. 

The American Civil Liberties Union also filed a federal lawsuit earlier in July challenging the state's 1996 ban on same-sex marriage. 

Hanes, a lawyer and law professor, said he consulted county attorneys before issuing a same-sex marriage license (the lesbian couple who initially sought one from his office, triggering his decision, later chose not to get the license but Hanes decided to follow through with other same-sex applicants). He argues that the state constitution overrides the ban by prohibiting gender discrimination and interference with citizens’ exercise of civil rights.

“Some people have said I’ve broken the law, which I may have done,” said Hanes, while seated in his office surrounded by family photos and Civil War-era paraphernalia, as well as an 1857 newspaper clipping advertising Abraham Lincoln’s legal services. “But I’ve broken an unconstitutional law.”

Hanes' employees described him as a romantic who gives each staff member a red rose on Valentine's Day. But he surprised everyone in the office with his decision to defy the state ban, said Helene Sepulveda, Hanes’ second deputy.

Sara Klingner, left, and Sandra Mesic show off their newly acquired marriage license on Aug. 29 at Hanes' office in Norristown, Pa. Jeff Fusco / Gettyi Images for NBC News

So far, she said, her colleagues are having fun with it, and even enjoyed wedding cake brought in by one newly married lesbian pair. “A lot of the couples have said that they waited so long for somebody to do something like this, and they’re grateful,” Sepulveda said.

One such couple, Sara Klingner, 63, and Sandra Mesics, 61, both nurses from Bethlehem, Pa., arrived last Thursday to obtain a marriage license after nearly 22 years together.

“My heart was racing thinking that we were finally doing this,” Klingner said, adding that Hanes was “opening up a lot of freedom for us.”

“He is really willing to take risks for what he believes is right,” Mesics said.

Hanes’ decision has prompted a few small protests and one large supportive demonstration outside his office in Norristown, a 30-minute drive from Philadelphia. He has received thank-you cards from well-wishers as well as letters decrying his decision.

Some officials also have made their disapproval known.

Hanes “is charged with executing the laws, and he is not doing that,” said Montgomery County Commissioner Bruce Castor, a Republican, who described Hanes, a Democrat, as a friend. “I think that Bruce is a man of principle and integrity, but he’s a little idealistic and doesn't fully grasp what his role is as an executive officer,” Castor said. 

“I am absolutely certain beyond any question that those marriages are no good and that those licenses are ... not worth the paper they are printed on,” he added.

Hanes first won election as register of wills in 2007, and was re-elected in 2011. He may run for a third term in 2015 but said he has no interest in any other political office.

His wife Rosemary, a middle school teacher, said that her husband of more than 40 years is guided by his moral conviction and has made a measured, well-informed choice on the gay marriage issue. “I would not consider him a crusader nor a renegade,” Rosemary said. “He's always been directed by what he thought was the right thing to do.”

Hanes, a member of Saint John's Lutheran Church and former church council president, said he has been in “wedded bliss” for more than four decades and that he hoped his actions could help gay couples experience similar joy. “I can see what they’re missing,” said Hanes, who noted that he has attended a same-sex marriage of friends.

“It’s kind of a wondrous thing that these folks put up with it, because nobody ever questions my relationship with Rosemary.”

As for Wednesday’s court hearing, he didn’t attend. He was briefed by the county solicitor on the judge’s questions, which included what role the Supreme Court decision on the federal marriage law played at the state level. 

Hanes said he would be awaiting the ruling but that it wasn’t about him: “It’s a serious equal protection argument at stake here.”

“I don’t want to speculate about the outcome of the case,” he added. “But I firmly believe that I’m on the right side of history.”

Hanes had other plans instead: making preparations for the Oct. 5 wedding of his oldest daughter, Laura, and getting ready for dance lessons with Rosemary – his gift to her – to hone his waltz and cha-cha-cha for the big day.

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