ALLENTOWN, Pa. -

Same-sex marriage was the underlying issue, but not directly the subject of a debate among Lehigh County commissioners Wednesday night.

They disagreed about whether they needed to authorize county Executive Thomas Muller and his administration to follow state law, which now allows same-sex marriages.

On May 20, a federal judge struck down Pennsylvania's law prohibiting same-sex marriage because that law violated the U.S. Constitution.

That change means same-sex spouses of county employees now are eligible to receive medical benefits.

It’s not that Muller had any intention to not obey the new law.

The county executive has been in support of same-sex spousal benefits since long before the federal court ruling, said Daniel McCarthy, the county’s director of administration.

Some commissioners felt it was unnecessary for them to take any action on the matter – and unnecessary for them to tell the county executive to obey the state law.

But the county solicitor told commissioners they had an obligation to act and warned of lawsuits if they did not.

Commissioner Geoff Brace made a motion that the commissioners “authorize the county executive to comply with the advice of the county solicitor” with respect to the U.S. district court decision that has legalized same sex marriage in Pennsylvania -- including that decision’s impact on the county personnel code.

That motion passed 6-0, with three abstentions.

Commissioners Vic Mazziotti, Scott Ott and Michael Schware abstained.

Mazziotti was the first to announce he was going to abstain,
explaining: “I can’t very well vote against a motion that instructs the county executive to obey the law, but I can’t vote for a motion that I think is unnecessary.”

“We have no business telling the executive to obey the law,” said Ott. “He already is obligated to obey the law.”

“I’m having a difficult time with the need to essentially tell the county executive to comply with state law,” agreed Schware. “We already have a provision in the home rule charter that the county is supposed to follow the constitution of both the federal government and the state government.”


Even some who voted in favor of the motion did not feel it was necessary. That included Chairwoman Lisa Scheller, but she also said: “I want to see this moving forward immediately.”

Commissioner Percy Dougherty also called the motion “redundant and unnecessary, because state law trumps the home rule charter.”

Yet Dougherty also said: “We are abrogating our duty if we do not pass this. We should have a clean slate and move forward so the people are covered by the benefits and they get the coverage that is dictated by state law.”

Atty. Matthew Sorrentino, the county solicitor, maintained that the county commissioners, not the county executive, had to take action on the issue. He said Muller “is not authorized to take the actions that it sounds like you want him to take.”

Said Ott: “The idea that somehow we have to give the county executive permission to obey the law strikes me as absurd.”

To suggest that a federal judge has some control over the county issue “is just not correct,” said Sorrentino. “He didn’t do anything with respect to the administrative code or the personnel code of Lehigh County.”

Ott said the county has no policies prohibiting benefits for same-sex couples.

He said if the county did have such a policy, legislation now would be appropriate to strike any words or phrases that have been determined to be unconstitutional,

“’Spousal benefits’ is in all our writings,” said Dougherty. “Now ‘spousal’ is defined differently. So it’s covered.”

Ott agreed the county executive may have to take action, but argued that action is not something the commissioners “need to trigger.”

Ott suggested the commissioners only have to be involved if the county administration needs their approval to transfer sufficient funds to pay for same-sex spousal benefits.