AG offers county clerks guidance on same-sex marriage questions

Indiana Attorney General Greg Zoeller’s office issued a memo to county clerks July 1 attempting to clear the confusion lingering from the several days when same-sex marriage was legal in Indiana.

Careful to qualify its memo as “guidance” rather than “private legal advice,” the attorney general again reiterated that the validity of the same-sex marriages solemnized between June 25 and 27 remains undetermined and likely an issue a court will have to decide.

However, the attorney general did recommend that clerks and judges no longer marry any gay or lesbian couples until a conclusive ruling is issued on the appeal. For marriage licenses which were obtained during the two-day window but not returned until after the 7th Circuit Court of Appeals granted the stay, clerks should respect the Circuit Court order and no longer process or record the solemnized same-sex marriage certificates.

In addition, the attorney general said clerks and judges who perform a same-sex marriage ceremony while the stay is in place could face charges for a Class C infraction or a Class B misdemeanor. Penalties are a fine up to $500 for the former offense and up to 80 days in jail plus a possible fine up to $1,000 for the latter offense.

The attorney general’s office is also recommending county clerks consult with their county attorneys, said Bryan Corbin, spokesman for the Indiana attorney general. The guidance, Corbin continued, is not an “official legal opinion of the Attorney General’s Office” but is intended to assist clerks as they navigate unfamiliar legal terrain.

County clerks across Indiana fielded many requests for marriage licenses from same-sex couples after a federal judge ruled Indiana’s marriage law violated the U.S. Constitution. Richard Young, chief judge with the U.S. District Court for the Southern District of Indiana, issued his decision June 25.

The attorney general immediately filed a motion to stay the injunction pending appeal, but when District Court did not rule, the state filed another motion to stay with the 7th Circuit Court of Appeals on June 27. The Circuit Court granted the motion two hours later.

On June 30, attorneys representing Niki Quasney and Amy Sandler filed an emergency motion with the 7th Circuit to lift the stay in part. The northern Indiana couple who is struggling with the terminal illness of Quasney had their motion for relief which required the state recognize their marriage granted in May.

Attorneys from Lambda Legal who represent the couple as part of Baskin v. Bogan, argue the emergency motion should be granted because Quasney may not live to see the conclusion of the state’s appeal.

The Indiana attorney general met the 7th Circuit’s deadline of noon July 1 to file its response to Lambda Legal’s motion. The state advocated for the stay to include Quasney and Sandler because the law provided no hardship exceptions.