Register of Wills & Justice of the Supreme Court

Member Group : Lincoln Institute

It is not very often that a Register of Wills makes statewide headlines. But Bruce Hanes, holder of that ministerial office in the suburban Philadelphia County of Montgomery did just that recently when he began issuing marriage licenses to same sex couples. Apparently in his spare time Mr. Hanes dons black robes and fancies himself a state supreme court justice as he unilaterally proclaimed Pennsylvania law prohibiting same sex marriage to be unconstitutional.

The office of Register of Wills – known fully as Register of Wills and Clerk of the Orphans Court – is one of a number of so-called "row offices," that perform a variety of administrative functions for the county court system. These offices date back to the pre-electronic age when a wide range of clerical tasks were broken up into various categories each assigned to an elective office. Some counties in Pennsylvania have updated the process by adopting a home rule charter and consolidating the functions into fewer offices.

At no point has the Register of Wills been viewed as a policy-making office let alone a judicial one. The actions of Mr. Hanes were so outside the norm that even the statewide association of Registers of Wills rebuked him by adopting a resolution opposing the issuance of marriage licenses to same sex couple. This will apparently spare Penn’s Woods from enduring a wave of Registers of Wills gone rogue. Clearly most holders of the office have a better understanding of the limits of their governmental duties than does Mr. Hanes.

The action of Mr. Hanes can be viewed in a number of contexts. It could be merely a crass publicity stunt meant to raise his profile and secure the support of a key voting block for the next election, perhaps even a run for higher office. It could, and likely is, a set-up for legal challenges. Such court activity has increased greatly in the wake of recent rulings on same sex marriage by the Supreme Court of the United States.

Regardless, the issuance of same sex marriage licenses by Mr. Hanes has received considerable news coverage, most of it positive, and resulted in numerous editorials and commentaries heralding his historic stand in favor of same sex unions. But, let’s take the issue of same sex marriage out of the equation. Replace it, if you will, with gun rights. Would the reaction be the same?

Imagine that a sheriff in one of Pennsylvania’s 67 counties decided that gathering information on gun owners to issue a License to Carry Firearms was unconstitutional. Given that the state constitution says the right of the people to possess a firearm "shall not be questioned," there is plausible legal basis for such a position. Now what would happen if that sheriff decided to begin issuing carry licenses to anybody who walked into his office; requiring no ID, gathering none of the information required by law, no questions asked? The howls of protest from the media and the denizens of the Left would resonate from Lake Erie to the banks of the Delaware. That sheriff would be vilified, classified as a Neanderthal, impeached and removed from office.

But how is that scenario any different from what Bruce Hanes has done in Montgomery County. There is no difference. The issue here is not same sex marriage – that is an entirely different debate. The issue is the rule of law and following the constitutionally prescribed methods for changing laws with which we may disagree. The disturbing trend of elected officials, from the President of the United States, to the state Attorney General to a Register of Wills, deciding for himself what laws are constitutional and which they will enforce must be stopped dead in its tracks before our entire system of government dissolves into utter chaos.

Register Hanes, like our mythical sheriff, have clear channels to pursue the policy changes they desire. The law itself can be changed by a majority vote of both houses of the Pennsylvania General Assembly and obtaining the signature of the governor. Those who feel a duly enacted law may violate either the state or the federal constitution have remedy in the courts. Supporters of same sex marriage are in fact doing just that, as is their right. Those forums, not the unilateral actions of a county administrative official, are the appropriate channels for debate and resolution of this issue.

(Lowman S. Henry is Chairman & CEO of the Lincoln Institute and host of the weekly Lincoln Radio Journal. His e-mail address is [email protected].)

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