INDIANAPOLIS – Same-sex couples around the state dashed to county courthouses to get married Wednesday after a federal court judge tossed out Indiana's law barring gay marriage.
But Attorney General Greg Zoeller late Wednesday afternoon asked for a stay on the ruling, which could put those new marriages in jeopardy.
“It is clear that the fundamental right to marry shall not be deprived to some individuals based solely on the person they choose to love,” U.S. District Court Judge Richard Young ruled.
“In time, Americans will look at the marriage of couples such as (plaintiffs in the lawsuits), and refer to it simply as a marriage – not a same-sex marriage. These couples, when gender and sexual orientation are taken away, are in all respects like the family down the street. The Constitution demands that we treat them as such.”
Young said Indiana's discriminatory ban on marriage for same-sex couples is unconstitutional. The case involved three different lawsuits on behalf of a number of couples seeking the freedom to marry in Indiana or recognition of a marriage from another state. The decision also ordered immediate recognition of all out-of-state same-sex marriages in Indiana.
Zoeller said in the emergency motion for a stay that it is premature to require Indiana to change its definition of marriage between one man and one woman until the U.S. Supreme Court has ruled.
“Nonetheless, marriages in violation of Indiana's existing law have taken place, are taking place, and will continue to take place pursuant to this court's order,” Zoeller said. “Time is of the essence to stop these marriages by staying this court's final judgment and all related injunctions pending appeal in order to maintain the historic status quo of man-woman marriage that Indiana and its citizens have adopted.”
Zoeller's motion also said federal courts across the country have put their rulings on hold involving traditional marriage definitions, both with respect to licensure of same-sex marriages within a state and recognition of same-sex marriages performed in other jurisdictions.
Gov. Mike Pence issued a statement saying he supports Zoeller's efforts to appeal the federal court's ruling and defend Indiana's right to define marriage.
“Because the governor believes in the rule of law, the state of Indiana will comply with the federal court's order as this case moves through the appeals process,” the release said.
County clerks all over – starting in Marion County and including Allen County – started issuing marriage licenses and marrying couples within hours Wednesday.
Ken Falk, legal director for the ACLU of Indiana, said it is unclear whether the newly performed marriages will be valid if a court issues a stay on the ruling. He was involved in one of the three lawsuits and sat next to several happy gay couples Wednesday afternoon.
“Needless to say, we are ecstatic,” Falk said. “Today is a very, very good day for marriage.”
The attorney general's office sent a notice to the county clerk's offices in all 92 Indiana counties providing guidance on the ruling. It said the clerks in Allen, Boone, Hamilton, Lake and Porter counties, who were named in the cases ruled upon Wednesday, must comply with the court's ruling or be subject to contempt of court.
Clerks in other counties are not subject to the U.S. District Court order, but the attorney general's office encouraged them all, as officers of the court, to show respect for the judge and the orders that are issued.
Plaintiffs in the case were jubilant, despite the possibility of appeal.
“I feel protected. I feel safe,” Melody Layne of Indianapolis said. “We are so proud to be able to tell our daughter her generation won't have to deal with this.”
Layne married her partner, Tara Betterman, in New York, and their marriage is now recognized in Indiana. They have a 5-year-old daughter.
Social conservatives met the news with dismay.
“That's terrible. It doesn't seem right for our state, and I don't think the judge made a good decision,” said Sen. Dennis Kruse, R-Auburn. He is a longtime supporter of the state ban and has pushed a state constitutional amendment as well.
“It's healthier for our society and our children. Intact families with one man and one woman as a married couple provide a better foundation for our society,” Kruse said. “The traditional home has made America great. Children from intact traditional families have fewer problems in their life, less delinquency.”
Senate President Pro Tem David Long, R-Fort Wayne, said he hopes Young will grant a stay during an appeal to the U.S. appellate courts.
“It is clear that the U.S. Supreme Court is going to have to rule on this issue, and the sooner the better. The current chaos over state marriage laws that is being created by these lower federal court rulings needs to stop, and only the Supreme Court can make that happen, and bring clarity to this issue once and for all,” Long said.
“Either the U.S. Constitution protects traditional marriage or it doesn't. If it does, it is likely that the court will leave the decision on traditional marriage to each state to decide for itself. Being a strong proponent of states' rights, I believe this would be the proper ruling. Only time will tell if the Supreme Court agrees.”
Prior to Wednesday's ruling, same-sex couples could marry in 19 states and D.C. Thirty-one states barred gay marriage.
The Indiana law withstood a challenge in 2005 when the Indiana Court of Appeals upheld the statute defining marriage as between one man and one woman. But this time, plaintiffs took their case to the federal system, where other state statutes have been struck down.
Specifically, Young ruled that the law violates the U.S. Constitution's equal protection clause and due process clause.
Indiana lawmakers this year fought over whether to put the state's traditional definition of marriage into the Indiana Constitution, which would have presumably protected it from a state court ruling. But they had no control over the federal courts.
Young was appointed U.S. District Court judge for the Southern District of Indiana in March 1998 and has served as chief judge since November 2009. President Bill Clinton nominated Young, and he was later confirmed by the U.S. Senate.
Prior to his appointment, he was a judge in Vanderburgh County Circuit Court in Evansville for eight years.