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Sunday, June 29, 2014

Ind. Decisions - So where are we now on same-sex marriage in Indiana?

Last Friday afternoon was the time of the ILB's last post of that busy week. The post dealt with the details of Judge Young's Wednesday, June 25th order, and who was complying and who was not. Although Attorney General Zoeller had filed a motion for a stay of the opinion with the district court on the day it was issued, Young had not responded, and many did not expect him to, given that he had written his decision so that it went into effect immediately, with clear and precise directions on its implementation.

Late Friday afternoon the 7th Circuit stepped in and stayed Judge Young's order, responding to a motion that had been filed by AG Zoeller two hours earlier. That put an end to same-sex marriage ceremonies in Indiana for the foreseeable future.

Indiana's Attorney General earlier had filed a notice of appeal, and the 7th Circuit also on Friday issued a 2-page order consolidating the three cases (just as they were in Young's order) and setting a briefing schedule:

  1. The appellants shall file a single, consolidated brief and required short appendix on or before August 6, 2014.

  2. The appellees shall file a single, consolidated brief on or before September 5, 2014.

  3. The appellants shall file a single, consolidated reply brief, if any, on or before September 19, 2014.
No decision by the 7th Circuit can be expected until briefing is completed, along with, in all likelihood, oral argument. So we are looking at the fall.


The only circuit that has issued a same-sex marriage ruling since last year's SCOTUS decisions is the 10th Circuit, which ruled last Wednesday, the same day as Judge Young's district court ruling in our circuit. The 10th Circuit ruled 2-1 in favor of same-sex marriage, but put an immediate hold on its opinion, pending SCOTUS review.

It is likely that the 7th Circuit, should it uphold Judge Young's decision, will do the same.

Meanwhile, several other circuits are nearing issuing decisions on the issue. The 4th Circuit, in May, heard oral argument on Virginia's ban. The 6th Circuit, which includes our neighboring states of Michigan, Ohio, and Kentucky, will hear oral argument from those states late this summer.

The SCOTUS thus likely will have requests for review of several circuit court opinions pending before it when it returns in the fall. If it decides to hear one or more of them, an opinion may not issue until the end of its next term, a year from now.

Wisconsin on Parallel Track

Indiana, Illinois, and Wisconsin comprise the 7th federal circuit. Although same-sex marriage became legal across Illinois on June 1st by legislative action, Wisconsin is in much the same boat as Indiana. On June 6th a Wisconsin federal district judge struck down that state's prohibitions against same-sex marriage.

However, confusion ensued. This quote from a June 13th NY Times story may explain why Judge Young's decision was so precise:

Judge Crabb took a different approach. Instead of issuing an implementing order as she voided the state ban, she asked the suing couples and the state to offer opinions this week on what exactly state officials should do and how widely the federal decision applied.

To the frustration of the Wisconsin’s Republican attorney general, J. B. Van Hollen, that meant that the District Court ruling was not final. The state did not automatically have standing to file for a stay with the Seventh Circuit Court of Appeals, which would probably bring same-sex marriages to a temporary halt. * * *

Adding to the confusion, Judge Crabb has made it clear in hearings that once her final order is issued, which could occur over the coming week, she is likely to issue a stay to allow the issue to proceed through the courts. If she does not, the appeals court almost certainly will.

Would the incomplete nature of her ruling last week mean the marriages performed since Friday would prove invalid?

“We don’t know; we’ve never had a situation like this,” said Dale Carpenter, a professor of constitutional law at the University of Minnesota.

“This adds an additional layer of legal questions on top of the existing questions,” he said.

Lisa Neff and Louis Weisberg reported June 26th in the Wisconsin Gazette:
[Wisconsin federal Judge] Crabb didn’t issue a stay — requested before her ruling by Republican Attorney General J.B. Van Hollen — until June 13. So for six days in early June, same-sex couples applied for and obtained marriage licenses in 60 of the state’s 72 counties. At least 550 gay couples were married in Wisconsin.

While the case is pending appeal with the 7th Circuit in Chicago, there’s uncertainty: For those with licenses who didn’t marry, should they wed? For those caught in the five-day waiting period, can they marry in another state? For those who married, what benefits, responsibilities or protections do they have?

“I think the harder questions are like adoptions, the really hard issues,” said Carl Tobias, a professor at the University of Richmond School of Law. That’s why these stays are so gut-wrenching for people.”

On June 16, Wisconsin’s congressional Democrats asked U.S. Attorney General Eric Holder to confirm, as he has done in similar situations in Utah and Michigan, that the federal government will recognize the marriages of Wisconsin gay couples and guarantee them:

• The ability to sponsor a foreign spouse for legal residency.

• Health, workers’ compensation, retirement and other benefits for the spouse of a federal employee.

• Health benefits, spousal ID cards, housing allowances and on-base support services for the spouse of a military servicemember.

• Joint income tax filings, as well as spousal exemptions of gifts, inheritances and the value of employer-provided spousal health coverage.

• Unpaid family and medical leave to care for an ill spouse.

• Spousal Social Security benefits.

“Earlier this year, you made clear that couples who married in Utah and Michigan after federal judges struck down those states’ bans are entitled to full federal recognition,” the lawmakers wrote. “We are grateful for this tremendous leadership on behalf of fairness and equality. We ask that you similarly declare that those same-sex couples who married in Wisconsin since the June 6 decision are equally entitled to the federal benefits they deserve.”

Indiana's Newly Married

As many as 800-1,000 marriage licenses may have issued in Indiana between the time Judge Young's opinion was filed on Wednesday, and the time the 7th Circuit brought license issuance to a halt on Friday. Many of the couples have married. It may be anticipated that their marriages will be recognized by the federal government.

Here is a statement regarding Michigan issued on March 28th of this year by U.S. AG Holder:

Attorney General Eric Holder issued the following statement today on the status of same-sex marriages performed in the state of Michigan:

“I have determined that the same-sex marriages performed last Saturday in Michigan will be recognized by the federal government. These families will be eligible for all relevant federal benefits on the same terms as other same-sex marriages. The Governor of Michigan has made clear that the marriages that took place on Saturday were lawful and valid when entered into, although Michigan will not extend state rights and benefits tied to these marriages pending further legal proceedings. For purposes of federal law, as I announced in January with respect to similarly situated same-sex couples in Utah, these Michigan couples will not be asked to wait for further resolution in the courts before they may seek federal benefits to which they are entitled.

“Last June’s decision by the Supreme Court in United States v. Windsor was a victory for equal protection under the law and a historic step toward equality for all American families. The Department of Justice continues to work with its federal partners to implement this decision across the government. And we will remain steadfast in our commitment to realizing our country’s founding ideals of equality, opportunity, and justice for all.”

Other Coverage.

Today, in the Sunday Indianapolis Star, Tony Cook and Tim Evans have a lengthy story on this issue titled "Stay on same-sex marriages clouds issue." From June 28th, Tim Evans: "Federal appeals panel stops same-sex marriages."

"Federal judge knows of the furor created by his same-sex marriage ruling" is the headline to a $$$ story today in the $$$ Evansville Courier & Press by Thomas B. Langhorne. The lede (and all we can read): "U.S. District Judge Richard L. Young is well aware of the furor created by his decision Wednesday to strike down Indiana’s ban on same-sex marriage."

"Federal Appeals Court Stops Indiana Same-Sex Marriages During Appeal," from Chris Geidner of BuzzFeed on June 27th.

"A lot at stake in same-sex marriage decision," by Rachel Bunn and Lindsey Erdody, Bloomington Herald-Times, freely available via InsuranceNetNews.

"Gay marriage legal challenges: Where things stand," through Wednesday, June 25th, from the AP.

"Utah's same-sex marriage ruling: What’s next? Experts divided on whether case will be first to reach Supreme Court," by Kirsten Stewart and Robert Gehrke, The Salt Lake Tribune.

"Analysis: Marriages left in limbo tough for all involved," by Lesley Weidenbener, TheStatehouseFile.com.

Posted by Marcia Oddi on June 29, 2014 02:50 PM
Posted to Ind Fed D.Ct. Decisions | Ind. (7th Cir.) Decisions | Indiana Government