INDIANAPOLIS — Same-sex couples who rushed to courthouses across Indiana during the three days it was legal for them to get married there could now face long months before they learn whether their unions are valid.
Legal experts disagreed about the issue Saturday, and it isn’t certain a clear answer will be reached any time soon.
A federal appeals court issued a stay Friday that put on hold a U.S. district judge’s ruling that struck down Indiana’s prohibition on gay marriage. But Judge Richard Young’s ruling Wednesday that the ban was unconstitutional was in effect for three days, during which hundreds of gay and lesbian couples obtained marriage licenses and many were wed.
The question that’s unsettled is whether Indiana has to recognize those marriages.
“That is undetermined. Such issues might have to be determined by a court later,” said Bryan Corbin, a spokesman for the Indiana attorney general’s office, which obtained the stay order.
Indiana law defines marriage as between a man and a woman, and the state has refused to recognize same-sex marriages performed in states where it is legal. Young wrote in his ruling that such restrictions violated the Equal Protection Clause of the U.S. Constitution and noted that courts across the country have agreed. In 17 consecutive court decisions, federal and state judges have upheld the right of gays to marry.
Jennifer Drobac, a professor at Indiana University’s McKinney School of Law who specializes in sexual orientation legal issues, didn’t hold out much hope to same-sex married couples in Indiana for now, but said that could eventually change.
Young’s decision “reset” Indiana law, she said, but the stay changed it back again and rendered the marriage licenses issued to same-sex couples this week invalid.
However, she added that she believes the appellate court will eventually find the ban unconstitutional as other courts have done. Unless higher courts completely overrule Judge Young, Drobac said, that means the same-sex marriages performed in Indiana since Wednesday will eventually be recognized.
“This legal flip-flopping is not good for Indiana because it creates uncertainty and undermines the rule of law and the power of legal authority,” she said.
Angie Nussmeyer, a spokeswoman for the Marion County clerk’s office, which issued hundreds of marriage licenses and married hundreds of same-sex couples this week, said the office is consulting attorneys in an attempt to determine those couples’ status.
Another law professor who has been tracking gay marriage cases said the issue is unsettled not only in Indiana, but in other states where similar stays have been issued.
“I do think those couples who were married before the stay are going to be in some kind of legal limbo for a while,” said Carl Tobias, a professor at the University of Richmond School of Law.
For the gay and lesbian couples married this week, it’s not a legal issue, but an emotional one.
Mary Ponterio of South Bend was traveling when she heard about Young’s ruling, and she and her partner Linda ran to the St. Joseph County clerk’s office just before the stay was issued Friday afternoon. The couple uses the same last name.
The official time noted on their marriage certificate was 5:51 p.m. – just minutes after the stay was issued.
“We went from sky-high happiness to tears,” Linda Ponterio told the South Bend Tribune.