Same-sex license debate about how power allocated in Penna.
HARRISBURG - The state judge who heard arguments in the gay marriage license case said the central issue is how power is allocated in Pennsylvania.
This remark by Commonwealth Court Judge Dan Pellegrini could be applied to any number of issues in recent years that tested the boundaries of the authority of Harrisburg versus local governments.
The move by Montgomery County Register of Wills D. Bruce Haines to issue marriage licenses on his own to same-sex couples is an example of push-back by a local official against a state law. After the U.S. Supreme Court threw out portions of the federal Defense of Marriage Act, Haines started issuing licenses to same-sex couples despite a Pennsylvania law defining marriage as between a man and woman.
The Corbett administration took Haines to court on grounds stating his actions interfere with the uniform application of marriage licenses under state law.
In recent years, the push has come more frequently from the other direction concerning separation of powers. The Pennsylvania Legislature has approved state laws to limit local ordinances dealing with gas drilling and to preempt local ordinances dealing with indoor smoking bans, sale of tobacco to minors and concealed weapons.
The most conspicuous example here is the state drilling impact fee law, which has a provision limiting the ability of local governments to control the location of gas drilling activity. A coalition of several townships has argued the law's effort to limit local zoning powers is unconstitutional and Commonwealth Court sided with them. The Corbett administration's appeal of that ruling is before the state Supreme Court.
The statewide indoor smoking ban law enacted in 2008 addresses the issue of local control in an uneven fashion. The law allows Philadelphia to have its own smoking ban ordinance, but not other municipalities.
A 2002 state law regulating youth access to tobacco also has a preemption clause that prevents municipalities from passing ordinances that are more strict than state law.
When state lawmakers approved a gun control law in 1995 providing for instant background checks on gun purchases, they included a provision preempting a Philadelphia ordinance requiring that individuals demonstrate a need before they are granted permits to carry concealed weapons.
The examples cited above involve local ordinances approved by officials acting in their policy-making capacity, said Terry Madonna, Ph.D., political science professor at Franklin and Marshall College. Haines has a more limited role as an officer of the court, he added.
One avenue where local governments sought to influence public policy was declared illegal by state court rulings during the 1990s. This was the practice where county election boards would occasionally place non-binding voter referendums questions on the county ballot.
For example, Monroe County put referendums on the ballot in the 1980s dealing with legalized gambling and legislative reapportionment.
(Robert Swift is Harrisburg bureau chief for Times-Shamrock Communications newspapers. Email: email@example.com.)