Indiana University Bloomington

Legal experts: Pence decision complicates status of recent same-sex marriages

  • July 11, 2014

Editor's note: This story from The Bloomington Herald-Times is being published here as a courtesy for readers of IU in the News.

By Lindsey Erdody and Rachel Bunn

Indiana Gov. Mike Pence ordered state agencies Wednesday not to recognize any gay marriages that were performed in the state last month.

Same-sex couples were legally allowed to marry in Indiana on three days last month after a federal judge struck down the state’s statutory ban June 25. The Indiana Attorney General’s Office initially requested a stay order from U.S. District Judge Richard Young, but after two days of no response, the request was sent to the U.S. 7th Circuit Court of Appeals in Chicago.

The court of appeals granted the stay June 27, stopping county clerk’s from issuing any more marriage licenses to same-sex couples.

During the short period of time that same-sex couples were allowed to legally wed, hundreds of ceremonies were performed across the state, including about 80 in Monroe County.

The stay already meant the marriages were in legal limbo until the 7th Circuit rules on the case. One marriage -- between Amy Sandler and Niki Quasney -- was allowed to be recognized, and the governor agreed to allow that as well. Quasney is fighting advanced ovarian cancer.

Legal scholars say the governor’s decision makes things even more complicated for newly married same-sex couples who are already unsure of what rights they have.

“For any state law purposes, it seems as if those couples have reverted to where they were before,” said Steve Sanders, associate professor of law at Indiana University.

Marriage is the default setting for many instances of family law. Should one member of a couple die without a will, his or her spouse would automatically inherit. Should one member be hospitalized, the other would be allowed in the room. The governor’s order takes away any rights under the marriage status in Indiana.

“I think this is a miserly approach,” said Jennifer Drobac, professor of law at Indiana University in Indianapolis. “This flip-flopping is confusing, undermining to the rule of law and not very generous, given that Indiana is a family-friendly state.”

But should one of these couples move to Massachusetts or another state that allows same-sex marriage, their rights would be recognized, Drobac said.

She also believes the marriage would be recognized on a federal level, regardless of the stay or where the couple lives.  

“Those marriages just didn’t evaporate because a stay went into effect; they haven’t been nullified,” Drobac said.

But it has made the lives of thousands more complicated.

Legally, Sanders thinks it would have been wiser if Judge Young had issued a stay with his initial ruling, or if couples had waited to marry. But as an expression of rights, Sanders also said it’s totally understandable why same-sex couples would rush out and get married.

Jean Capler, president marriage equality support group FairTalk, said she married her partner of almost 17 years the day after the federal court ruling because it was meaningful for them to have an Indiana marriage license.

“My wife and I are married, whether state agencies are going to recognize that or not,” Capler said.

Despite paying for two health insurance plans, Capler said she didn’t try to switch to her wife’s coverage after getting legally married, because an appeal was expected.

“I knew that once that stay was issued … we had basically three days of actual equality,” Capler said. “We as a couple are still going to pay more out every month for my health insurance. ... It has a direct impact on our budget.”

Sanders said Indiana couples who were married during the three-day window should be considering suing the governor for their rights.

“I wouldn’t be surprised if they refused to sit back and take this,” Sanders said.

The attorney general’s office had issued guidance to county clerk’s on how to proceed, including suggesting refunds be issued should a couple request it. However, Monroe County Clerk Linda Robbins said the filings for all of the local marriages that were conducted have been processed, so she won’t issue any refunds.

“The document has been processed. It was legal at the time it was processed,” Robbins said.

She said to her knowledge, no couples have asked for a refund.

“And I can’t imagine why they would do that,” Robbins said.

Indiana is not in a unique position by not recognizing the marriages; other states also have declined to recognize the rights of same-sex couples who were legally married during a short time frame.

“This is not a surprise,” Sanders said. “We know Gov. Pence has a strong record as a conservative, and we know the attorney general’s office has been zealously fighting this.”

“What we have is a state government dominated by social conservatives willing to fight to the bitter end,” he continued.

The legal basis for governor’s decision is of particular interest to Sanders, and something that he thinks the governor should make public.

“Every federal court -- I think we’re up to 15 or 16 now -- has rejected the kinds of arguments Indiana is making,” Sanders said. “It seems pretty clear that it’s only a matter of time until the marriages are recognized.”

Capler agreed that change is coming, whether state officials like it or not.

“The governor can make whatever proclamation he wants to,” Capler said. “Marriage equality is the right thing to do.”

Also on Wednesday, Utah officials said that state will ask the U.S. Supreme Court to consider its same-sex marriage case.

The same day Indiana’s ban was struck down for being unconstitutional, a three-judge panel of the 10th Circuit Court of Appeals in Denver upheld a lower court’s ruling that overturned Utah’s gay marriage ban. It was the first appellate court ruling on the same-sex marriage issue, and the case is thought to be the first in line for the Supreme Court.

The Utah attorney general’s office said after the appellate ruling that the state would appeal the decision, but it was unclear whether they’d ask for the entire 10th Circuit to review it or head directly to the Supreme Court. Now the option of asking for the entire 10th Circuit is off the table, regardless of what the Supreme Court decides.

The Supreme Court is not required to hear the case, and there is no deadline to make a decision.

Drobac said it’s unlikely that there’s no decision made, and many believe same-sex marriage issues will eventually be decided in a court of law and that rights will be given to couples.

“I think Indiana’s going to be on the dark side of the civil rights struggle,” Drobac said.

Capler said the frustrating part is that while the appeals process plays out and the state doesn’t recognize these marriages, some spouses will see their loved ones die and struggle to have the same rights as other married people.

“There’s no do-over with this,” Capler said. “It’s insulting.”