The decision by the Supreme Court of the United States not to hear any of the same-sex marriage cases before them was unexpected but very welcomed by the same-sex couples and their attorneys who had challenged Indiana’s marriage ban.
“The effect of this decision is that this case is over,” said Ken Falk, legal director for the American Civil Liberties Union of Indiana. “(U.S. District Court for the Southern District of Indiana) Chief Judge Young’s decision striking down Indiana’s prohibition on same-sex marriage and the recognition of out-of-state same-sex marriages is final. Same-sex marriage is legal in Indiana and is required to be legal by the U.S. Constitution.”
Falk’s declaration was greeted with loud applause and cheers from the couples and attorneys gathered at the ACLU of Indiana headquarters in Indianapolis.
“To say that we’re ecstatic about this is perhaps an understatement,” Falk said after the celebration had subsided. “This is a great day.”
SCOTUS denied certiorari Monday to seven same-sex marriage cases from the 4th, 7th and 10th Circuit Courts of Appeal. The stay previously issued by the 7th Circuit automatically lifted upon the justices’ denial of cert. Attorneys representing same-sex couples and attorneys general from around the country thought the Supreme Court would put at least one of the cases on the docket this term.
Since the Supreme Court struck down parts of the federal Defense of Marriage Act with its U.S. v. Windsor decision in 2013, challenges to state laws banning same-sex marriage have blossomed around the nation.
With no split currently among the Circuits, the Supreme Court may not have seen the need to address the issue. U.S. Justice Ruth Bader Ginsburg alluded to that recently saying there is “no urgency” for the court to review a case at the present time.
The 6th Circuit Court of Appeals has yet to issue a ruling in the same-sex marriage lawsuits from Kentucky, Tennessee and Ohio. That could create a split and Falk, reiterating the Indiana cases are over, conceded no one can predict what will happen.
However, attorney William Groth, one of the attorneys representing the first responders in Lee, et al. v. Pence, et al., pointed to the string of victories and how unlikely it would be for a Circuit Court to now find a marriage law constitutional.
“I’m pretty sure the 6th Circuit got the message,” he said.
The Lee v. Pence lawsuit was consolidated with two others from Indiana – Baskin v. Bogan and Fujii v. Pence. Young’s decision that Indiana’s marriage statute is unconstitutional was affirmed in September by the 7th Circuit Court of Appeals in a decision that was rendered nine days after oral arguments.
Gov. Mike Pence, a defendant in the lawsuits, indicated the state will abide by 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,” he said Monday afternoon. “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.”
Indianapolis Metropolitan Police officers Teresa Welborn and Pamela Lee along with their spouses Elizabeth Piette and Candace Batten-Lee, were among the plaintiffs in Lee. The plaintiffs were firefighters and police officers fighting for recognition of their same-sex marriages so their spouses could receive the same benefits and pensions as the opposite-sex spouses of other first responders.
“When it comes to the religious beliefs, I’m not trying to change what somebody believes religiously,” Welborn said. “We’re just trying to be like everyone else. Live a life, work, participate, be a good citizen, enjoy life like everyone else is. …What’s right for one is right for everyone else.”
Now that same-sex marriage is legal, state agencies and private businesses will have to adjust policies and procedures to be in accordance with the law. Attorneys do not anticipate that all the county clerks will begin issuing marriage licenses immediately but they are confident the clerks will comply.
“There’s going to have to be a lot of changes in the administration of various programs both public and private,” attorney Karen Celestino-Horseman said, “but the good news is we can work through this and we can get it done.”
Falk does not believe the Supreme Court’s denial will galvanize the opposition like Roe v. Wade did with abortion foes. In the abortion decision, Falk said, the justices set regulations on when abortions could be performed and the subsequent challenges have dealt with trying to modify those regulations.
Conversely, same-sex marriage is a binary decision of whether gays and lesbians can marry.
“The switch has been turned on,” Falk said. “(Same-sex marriages) can occur and there’s nothing else to talk about.”
Falk said while this was a momentous day, soon the issue of same-sex marriage will be no big deal.
“That is the transformative nature of this issue,” Falk said. “Rarely has there been an issue that has just eclipsed the law. American attitude about same-sex marriage has far eclipsed the speed of these court cases because right now for most Americans it’s no big deal.”
Welborn and Lee witnessed the shift in attitude and remember when they were outcasts. Their colleagues talked about them behind their back, their parents initially rejected them, and they felt they had to live two different lives, hiding who they were.
Coming to the ACLU offices Monday morning, Welborn became overwhelmed by emotion.
“I never thought this day would come that we would be accepted in society let alone legally married,” Welborn said. “I’m hoping that it doesn’t go away tomorrow, the celebration. I’m kind of hoping we celebrate for awhile.”