Same-sex couples are rushing to get married before a stay is issued, which will temporarily halt any further licenses from being given.
Attorney General Zoeller issued an emergency request for stay and filed an appeal to the Baskin v. Bogan case on Wednesday, June 25 with the 7th Circuit Court of Appeals in Chicago. Solicitor General Thomas M. Fisher, a salaried attorney who does not charge billable hours, is handling the case on behalf of the attorney general’s office.
Amy Sandler and Niki Quasney, two of the plaintiffs challenging Indiana's same-sex marriage ban, also filed an official opposition to the state's request for stay in an attempt to prevent it.
A stay could be issued at any time.
According to the emergency request for stay, “until the United States Supreme Court determines that traditional marriage laws such as Indiana’s are unconstitutional, it is premature to require Indiana to change its definition of marriage.”
The standard to grant a stay depends on “if the party seeking it has a good chance of winning the appeal and would be hurt more by the injunction than the [opposing party].”
The attorney general said in the emergency request for a stay, if a tourniquet is not placed on the surge of marriages that are happening, “the court is faced with the unwelcome prospect of ‘unscrambl[ing] an egg.’”
Almost every state that is working this issue through the courts has issued a stay pending a decision from a higher court.
What Happened in Utah Could Impact Indiana
In Utah, a stay went into effect 17 days after a district court issued a ruling that named a ban on same-sex marriage as unconstitutional. On Wednesday, by a 2-1 decision, the United States Court of Appeals for the 10th Circuit in Denver decided to overturn the appeal — one that is similar to what is happening in Indiana.
It has been speculated the cases in Indiana will eventually find their way to the Supreme Court. This is likely to be the case if the appellate court in Chicago upholds the ban. The conflicting answers between the 7th and 10th Circuits are cause for the issue to go to the Supreme Court. Nevertheless, the Supreme Court doesn’t have to hear either case, but might to clarify the discrepancy. If the case is brought to the Supreme Court, it could be as soon as next year.
The issue now is whether or not it is unconstitutional for states to ban same-sex marriages. This was not addressed in the United States v. Windsor case in 2013.
Here is a map from Slate that shows the legal state of same-sex marriage in each state.
There is not a set legal process that every state ban case is following. Many of these cases are similar, though not enough for legal counsel to be able to say beyond a shadow of a doubt what will happen next. No one can say for certain what will happen to the marriages that have been issued since the ban against same-sex couples was named unconstitutional.
Once the stay is enacted, marriages will not be able to resume until after the case is heard in the appellate court in Chicago. Even then, the 7th Circuit Court of Appeals could issue its own stay, which would also pause same-sex marriages.
For those who have gotten married before the stay was enacted, a dense legal battle awaits.
More than likely, all of the marriages that have happened in this window will not be considered a useable license for at least a period of time. Until the issue is hashed out in the courts (if the stay is continued), same-sex couples will not be considered married in the eyes of the state.
In Michigan, Attorney General Eric Holder stated the marriages performed prior were going to 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 same will be true in Indiana, but state benefits may not apply.
If the ban is upheld, the courts must decide if the marriages that happened during this window are considered valid.
Why did some counties issue licenses and other didn’t?
Wednesday’s decision sent hundreds of couples to the clerks’ offices to obtain marriage licenses. Not everyone was able to get one.
Here is a map of which counties are allowing licenses and which are not.
Judge Young’s decision really only forced counties where the plaintiffs call home to issue licenses. Other clerks’ offices throughout the state have been “encouraged” by the attorney general’s office to follow the due process of the law and issue licenses, but they do no have to.
He reportedly advised county clerks to follow their duty and adhere to Wednesday’s ruling until a stay has been passed — which will pause all marriage licenses when it is.
The question that remains is whether those licenses will be valid down the road and what protections same-sex married couples in Indiana will have until the case is heard in the Supreme Court.
6.25.14.Emergency Motion for Stay Pending Appeal
6.25.14.Notice of Appeal to the Seventh Circuit