« Ind. Decisions - Tax Court decides one today | Main | Ind. Gov't. - Some clerks in the dark as to how to proceed, others have issued dozens of licenses to same-sex couples today »

Wednesday, June 25, 2014

Ind. Decisions - The same-sex marriage ruling and the county clerks

Here is the Office of the Governor Statement on Federal Court Ruling on Indiana’s Marriage Statute:

Indianapolis – The following statement can be attributed to Kara Brooks, Press Secretary for Governor Mike Pence.

“Governor Pence supports the Attorney General’s efforts to appeal the federal court’s ruling and defend Indiana’s right to define the institution of marriage for the residents of our state. 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.”

Same-sex marriages are currently taking place in many counties around the state, including Vanderburgh County, Marion County, St. Joesph County, Boone County, Hamilton County, Allen County, Lake County.

From Monroe County, this freely-available story from Laura Lane, Bloomington Herald-Times, headed "Indiana clerks seek guidance on how to handle same-sex marriage licenses":

Lawrence County Clerk Myron Rainey was out to lunch eating a pastrami sandwich when he was interrupted with news of the judicial ruling eliminating the state's ban on same-sex marriage. Before he could get back to his office, one couple already had come to the courthouse in Bedford to inquire about getting a marriage license.

Rainey called county attorney David Smith, asking him to review the ruling and advise him how to proceed with the official records.

Rainey said current marriage license forms specifically list male and female slots for those seeking to get married. Rainey said it's not clear how to proceed as far as filling out the forms. * * *

"It's a milestone day in Indiana," said Brown County Clerk Beth Mulry, who at 1:30 Wednesday afternoon had not yet received any inquiries from same-sex couples wanting to marry. She has contacted a lawyer to review the federal judge's opinion and advise her.

She said if the state does not provide new forms right away, she will get out old paper forms and use those.

"The immediate hurdle is all of our computer software is set up for male and female and we have to figure out a way around that," Mulry said. "We are more than willing to embrace the removal of the same-sex marriage ban; we just have this technology hurdle. We are working on it as fast as we can. The changes to the license form need to happen now."

But in Monroe County, where same-sex marriage licenses were being issued and weddings performed Wednesday afternoon, clerks amended the forms themselves, advised by the county attorney to white-out the words "male" and "female" and replace them with "Applicant 1" and "Applicant 2."

Meanwhile, the Lafayette Journal Courier reports that marriage licenses are not being issued in Tippecanoe County. Mikel Livingston and Ron Wilkins write:
What’s going on was a federal judge had thrown out Indiana’s gay marriage ban, ruling it unconstitutional and determining that Indiana gay couples can begin marrying immediately.

But it doesn’t mean that anything changed Wednesday for same-sex couples in Tippecanoe County.

On advise from legal counsel, Tippecanoe County Clerk Christa Coffey was not going to issue marriage licenses Wednesday.

By 1:30 p.m., clerk employees had already fielded about a dozen calls from people asking about same-sex marriage here.

Several other counties as of 2 p.m. — Benton, Clinton, Montgomery, Newton and Warren — said they too would not issue licenses to same-sex couples until they had received direction from the state attorney general. Officials in Carroll, Jasper and White counties could not be immediately reached.

Fountain County clerk Patty Gritten said her office is willing to issue marriage licenses, but said no one had asked for one as of about 3:30 p.m.

Gritten said she spoke with Judge Susan Henderson who informed her the office could begin issuing licenses. Gritten said she plans to continue to do so “until somebody tells me I can’t.”

“If somebody were to come in here today ... we’d just tell them you just need to know one side (of the form) says bride and one side says groom,” Gritten said. “It still has that old verbage. If you’re OK with that, we are.”

Indiana residents must obtain a marriage license from the county in which they reside, Coffey explained. Once the license is in hand, they may be married in any county they wish, but without the license from their home county, a couple cannot get married, Coffey said.

The story continues:
Tippecanoe County Attorney Doug Masson counseled Coffey to hold off on issuing licenses so he can review the court order, which included language that specifically indicated that the clerks in the counties named as defendants must begin to issue marriage licenses to same-sex couples.

“I think it does impact the whole state,” Masson said. He said he needs to read the order in detail. “The broader question that’s going to apply to Tippecanoe County is whether the law (banning same-sex marriage) is unconstitutional, and it probably is.”

But better to wait a day or so to allow county attorneys to read the order, check with the attorney general’s office and find out more about a possible stay of the order and the state’s planned appeal.

Ironically I quoted a July 9, 2013 post from the same Doug Masson in an ILB earlier today; my ILB post is headed "Is the electronic marriage license system keeping same-sex couples in some counties from marrying?"

Perhaps county clerks should best follow the governor's statement quoted at the beginning of this post that the State will "comply with the federal court’s order as this case moves through the appeals process." That federal order, quoted here, gives this specific direction to the county clerks:

The Defendant Clerks, their officers, agents, servants, employees and attorneys, and all those acting in concert with them, are PERMANENTLY ENJOINED from denying a marriage license to a couple because both applicants for the license are the same sex. Thus they must act pursuant to their authority under Indiana Code Chapter 31-11-4 and issue marriage licenses to couples who, but for their sex, satisfy all the requirements to marry under Indiana law

Posted by Marcia Oddi on June 25, 2014 03:31 PM
Posted to Ind Fed D.Ct. Decisions