Indiana attorney general files for emergency motion for stay on same-sex marriage ruling

The Indiana attorney general, along with the Boone and Hamilton County Clerk, filed an emergency motion for stay in U.S. District Court, pending appeal, to halt a judge's ruling striking down the state's ban on same-sex marriage.

The move was expected, and the motion asks Chief Judge Richard L. Young to stay, or postpone implementation of, his permanent injunction order finding the marriage definition statute unconstitutional. Young's ruling Wednesday effectively struck down Indiana's ban on same-sex marriage, prompting dozens if not hundreds of couples to rush to county clerk offices to get married.

Read the emergency motion here.

Read the appeal here.

The attorney general's office says it wants to prevent "confusion and inconsistency between county clerk’s offices regarding license issuance, while the appeal is pending."

The U.S. District Court has not yet ruled on the stay.

The two county clerk offices and the Indiana attorney general's office also filed a notice of appeal late Wednesday.

The attorney general contacted all 92 clerk's offices Wednesday to provide guidance on the court's ruling.

"It noted that those county clerks named in the lawsuit (Hamilton, Allen, Boone, Porter and Lake) in the cases ruled upon Wednesday must comply with the Court’s ruling or they would be subject to contempt of court. Other county clerks in other counties are not under the direct jurisdiction of the U.S. District Court order, but as an officer of the court, the Attorney General’s Office must encourage everyone to show respect for the judge and the orders that are issued," the attorney general's office said.

The Marion County clerk's office already was issuing marriage licenses to same-sex couples and had begun performing ceremonies Wednesday.

Indiana law has defined marriage as between one man and one woman.

The attorney general's office had argued the ban should be left intact. Attorneys for the state argued that the Legislature has legal authority to determine how marriage is defined within Indiana's borders.

This is an earlier statement from the Indiana attorney general's office:

A southern Indiana federal judge today found Indiana’s traditional marriage statute unconstitutional. U.S. District Court Chief Judge Richard L. Young ruled in four legal challenges to the statute, finding in Baskin et al. v. Bogan et al. that county clerks must issue marriage licenses to same-sex couples in Indiana and that same-sex marriage licenses granted in other states are recognized in Indiana.

The Indiana Attorney General’s Office is analyzing the Court’s rulings in the multiple cases and will communicate with county clerks on proper marriage license procedures they should follow in order to avoid chaos during the appeal. The Attorney General’s Office previously announced it will file an appeal in the event of such a ruling, and will quickly ask for a stay of today’s ruling pending appeal.

Chief Judge Young combined his ruling today in the Baskin lawsuit with his rulings in two related cases, Fujii et al. v. Pence et al., and Lee et al. v. Pence et al., and issued a permanent injunction preventing Indiana from enforcing its statute.

In a separate legal challenge, in Love et al. v. Pence, Chief Judge Young ruled for the State, finding that Governor Mike Pence is not a proper defendant in that lawsuit since his office does not issue marriage licenses nor directly administer the marriage statute; county clerks do, and the judge dismissed that lawsuit. The judge also dismissed the Governor from the Fujii and Lee cases for the same reason while ruling for the plaintiffs otherwise.

Chief Judge Young heard oral argument in the Baskin et al. v. Bogan et al. case May 2 in U.S. District Court for the Southern District of Indiana in Evansville and today the judge granted that plaintiffs’ motion for summary judgment – which the State opposed. The State will ask that the ruling be stayed during the State’s appeal to the U.S. 7th Circuit Court of Appeals.

Defending the State of Indiana, the State Department of Health, the Governor, other state officials and the marriage statute in the various lawsuits is the State’s lawyer, the Indiana Attorney General’s Office. Indiana’s legal defense is being covered through the AG’s Office’s regular budget, approved by the Legislature in advance; and the case is assigned to Solicitor General Thomas M. Fisher, a salaried attorney who does not charge billable hours. Indiana is not using outside counsel to defend its statute.

The State contended the Baskin plaintiffs’ motion for summary judgment should have been denied and the marriage-definition law should remain intact. The State’s legal defense of the statute noted the Legislature has the legal authority to determine how marriage shall be defined within Indiana’s borders; and Indiana’s Legislature has chosen in statute to define marriage in the traditional way – between one man and one woman – and to not legally recognize same-sex unions granted in other states. Moreover, the United States Supreme Court’s decision last year in the U.S. v. Windsor case continues to leave this state policy decision-making authority with states and their legislatures.

Today’s ruling still is being studied and the Attorney General’s Office soon will advise county clerks who issue marriage licenses who were defendants – the State Department of Health, the Department of Revenue and the Indiana Public Retirement System -- on what changes in procedure Chief Judge Young’s decision imposes upon them during the appeal. The State will ask for a stay of today’s ruling pending appeal.

Previously, on May 8, Chief Judge Young also granted an injunction to two of the Baskin plaintiffs, Nikole Quasney and Amy Sandler, extending indefinitely a temporary restraining order the Court granted them April 10. The injunction granting recognition to Quasney’s and Sandler’s marriage orders Indiana State Department of Health (ISDH) to list Sandler as Quasney’s spouse on any future death certificate for Quasney.

Expressing its continuing sympathy and sorrow about the medical condition of one plaintiff, the Attorney General’s Office noted the State’s legal position is that the injunction should not have been granted since the current rule of law does not allow for a hardship exception from the statute for one person or two people, as that would create inconsistency for all other citizens of Indiana. Moreover, a death certificate can be amended at a later date. Solicitor General Fisher observed that in order for the State to preserve its legal options, it has appealed Chief Judge Young’s injunction ruling and sought a stay of the court order regarding the death certificate as well. Chief Judge Young today denied that motion to stay as moot.