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It’s Over!

U.S. Supreme Court rejects cert, making gay marriage legal in Indiana

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Th attorneys and plaintiffs celebrate the decision by SCOTUS to reject the state's appeal with a champagne toast. - MARK A. LEE
  • Mark A. Lee

  • Th attorneys and plaintiffs celebrate the decision by SCOTUS to reject the state's appeal with a champagne toast.

An NFL season, from pre-season to the Superbowl, is 26 weeks. The normal gestation period for a human baby is about 40 weeks. In the middle of those two time frames, at 33 weeks, the issue of gay marriage traveled through the federal court system and became legal in Indiana.

The U.S. Supreme Court rejected the appeals filed by Indiana and four other states asking the court to review the constitutionality of the states’ gay marriage laws. By rejecting the appeals, the decisions made in the Courts of Appeal and the District Courts are now binding as law. In Indiana, The 7th Circuit Court of Appeals and the U.S. District Court agreed the law banning same-sex marriage and the recognition of out-of-state same sex-marriages is unconstitutional.

“The effect of the Supreme Court of the United States rejecting cert is – it’s over. Same sex marriage is now legal in Indiana,” said Ken Falk, Legal Director for the ACLU of Indiana. “There are no other courts for the state to appeal to. The Constitution can’t be amended and no legislation can change it.”

A round of applause from several of the plaintiffs in the three cases that started the conversation and court battle erupted following Falk’s statement. The ACLU of Indiana, Lambda Legal, and a few groups of attorneys from several smaller Indiana law firms filed federal suits in March 2014 challenging the constitutionality of Indiana’s law. They saw their work come to a triumphant end on Monday.

“A federal case working it’s way through the system to the Supreme Court on average takes three to four years,” said Falk. “These cases and this issue traveled at lightning speed.”

IMPD Officer Teresa Welborn got emotional thinking about how far she and wife, Beth Piette, had come since March. - MARK A. LEE
  • Mark A. Lee

  • IMPD Officer Teresa Welborn got emotional thinking about how far she and wife, Beth Piette, had come since March.

The attorneys and plaintiffs gathered at the ACLU offices Monday to celebrate and reflect on the Supreme Court’s action.

“I never thought this day would come,” said IMPD Officer Teresa Welborn. “I was home sick with the flu when my wife [Beth Piette] called me crying and told me. I didn’t feel well, but I knew I had to get up for this.”

Welborn and Piette were among five couples employed in public safety roles in Lee vs. Abbott et. al. that sued for the right to have their spouses recognized for their public service pensions. The other cases, Baskin vs. Bogan et. al. and Fugii vs. The Commissioner for the Indiana Department of Revenue et. al., sought to have marriages legally solemnized in other states recognized and for the right to have same sex marriages legally solemnized here in Indiana.

Welborn, like the other plaintiffs and attorneys, thought for sure the U.S. Supreme Court would grant cert to at least one of the gay marriage cases put forth. Other certs had been filed from Virginia, Utah, Oklahoma, and Wisconsin. The court’s rejection of all five cases was a shock to everyone. But, while the Indiana plaintiffs filed a cert response to the state’s request asking the Supreme Court to make a final decision, no one on their side was in any way disappointed with the high court’s rejection. “It is a very, very good day,” Falk said.

Not such a good day for the GOP

A very large and clear rainbow appeared in the sky over the northside of Indianapolis, Fishers and Carmel Monday morning. Many people tweeted pictures of it, including State Senator Mike Delph. While the rainbow is considered a religious symbol of God’s promise to Noah to never again destroy the earth and its living creatures by flood (Genesis 9:12-16), the rainbow has also become the symbol of LGBT pride and acceptance. The irony of a tweet from one of the state’s strongest gay marriage opponents and the timing of the court’s rejection of the gay marriage appeals was not lost on many in the Twitter universe.

Attorney General Greg Zoeller’s office issued a statement about the decision that was cloudy, at best, about the reality of the court’s action.

“Our nation and all sides involved needed a conclusive Supreme Court ruling to bring finality to the legal question of state authority to adhere to the traditional definition of marriage,” Zoeller said. “Although it is unfortunate the Court did not accept the question and has again left states stuck in the limbo of uncertainty, ultimately the U.S. Supreme Court will have the final word on the subject of state authority to regulate marriage. Strong opinions exist on all sides of this issue but we continue to urge Hoosiers to show respect for the Court, the attorneys, the county clerks and the rule of law while this complicated process plays out.”

Was Zoeller referring to another same-sex marriage case that is under consideration in the Sixth Circuit Court of Appeals? The U.S. District Court in that case upheld the gay marriage ban. And the Sixth Circuit is considered by some to be a more conservative court than others around the country.

However, attorney Bill Groth doesn’t believe that case will have much bearing on the national conversation. “I think the Sixth Circuit Court has gotten the message from the Supreme Court,” he said during the ACLU press conference.

According to Falk, that court’s decision would have no bearing or influence on Indiana. “Anything can happen,” said Falk. “But as far as these cases are concerned, the issue is settled. The denial of cert confirms the decision from the Seventh Circuit as law.”

Statements from other Republicans dedicated to the idea of traditional marriage acknowledged the finality of the court’s decision, although somewhat reluctantly. Senate pro temp David Long said while he was surprised by the outcome, the court has spoken.

“The Court appears to have sent a message that if they ultimately do hear these cases, they will support these lower court rulings, and find that same-sex marriage is on equal footing with traditional marriage,” said Long. “Because the U.S. Constitution is supreme to all state constitutions when it comes to a conflict between them, the effort to amend the Indiana Constitution to define marriage as the union of one man and one woman would appear to be over unless the U.S. Supreme Court reverses its decision and ultimately takes up the matter in the future to overturn the current decision by the 7th Circuit concerning Indiana law. Given today’s ruling, that appears unlikely.”

Governor Mike Pence combined his personal belief with his duty to uphold the law in a brief statement following the decision.

“While it is disappointing to many that the Supreme Court has chosen not to hear arguments on this important issue, under our system of government, people are free to disagree with court decisions but we are not free to disobey them,” said Pence. “Hoosiers may be assured that I and my administration will uphold the rulings of our federal courts concerning marriage in the policies and practices of our state. As Governor of all the people of Indiana I am confident that Hoosiers will continue to demonstrate the civility for which we are known and respect the beliefs of all people in our state.”

Plaintiffs Rob MacPherson, Steven Stolen, and Greg Hastley thanked friends, family, and co-workers for their support. - MARK A. LEE
  • Mark A. Lee

  • Plaintiffs Rob MacPherson, Steven Stolen, and Greg Hastley thanked friends, family, and co-workers for their support.

What happens next?

When the Seventh Circuit Court of Appeals published its decision September 4 affirming the District Court’s ruling that Indiana’s ban on same sex marriage was unconstitutional, the court stayed the decision and didn’t issue a mandate pending action from the U.S. Supreme Court. Now that the action has been taken (by the Supreme Court doing nothing), a mandate is expected from the Seventh Circuit within the next few days. A few county clerks are waiting for instructions based on that mandate. Other clerks instantly began issuing marriage licenses to same sex couples.

“I am delighted to once again welcome all loving Hoosier couples to the Clerk’s Office to obtain a marriage license,” said Marion County Clerk Beth White in an issued statement. “Limbo for these couples is over and they can expect nothing but dignity and respect from our marriage license staff when they arrive.”

However, White did say she would not perform instant civil ceremonies because the sense of urgency no longer exists. By the end of the day Monday, White’s office had only issued seven marriage licenses to same sex couples.

The change in the law means more than a change in the wording on the marriage license application. Attorney Karen Celestino-Horeseman says several businesses, industries and programs in both the public and private sectors will have to change everything from employee handbooks to benefits packages and insurance applications.

“Several places are going to need help understanding what the decision and the court’s mandate will mean for them. But there are a lot of us here that can help with that,” smiled Horseman, referring to her fellow attorneys who worked on the marriage cases.

Monday was a day of celebration for all of the same sex couples that fought for the right to marry and have their marriages recognized. But Tuesday was back to life as usual. “The reality of it all is the transformative nature of this issue,” said Falk. “It will be no big deal a month from now.”

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