Post submitted by Charlie Joughin, HRC Press Secretary
On Tuesday U.S. District Court Judge Richard L. Young ruled in Bowling v. Pence that Indiana’s law prohibiting the recognition of same-sex marriages performed in other jurisdictions is unconstitutional. The decision was stayed, pending an appeal. Judge Young previously struck down the state’s marriage ban in a ruling on a case known as Baskin v. Bogan, which was consolidated with two other cases for an appeal before the U.S. Court of Appeals for the Seventh Circuit. A three-judge panel of the Seventh Circuit in that case will hear arguments on Tuesday of next week.
In his previous ruling in the Baskin case striking down the state’s marriage ban, Judge Young ruled that Indiana Governor Mike Pence was not a proper defendant in these marriage cases, as he did not have the authority to permit or deny marriage rights under the law. Hundreds of couples across the state began marrying until the Seventh Circuit stayed the ruling following a request from the state. Gov. Pence later announced the state would not be recognizing the same-sex marriages that took place during that window. With Judge Young’s latest ruling last night, he has reversed course. He writes, “The court, after witnessing the Governor do what he claimed he could not do, reverses course and finds him to be a proper party to such lawsuits. The court wishes to reiterate that it finds the Governor’s prior representations contradicting such authority to be, at a minimum, troubling.”
This is the twentieth consecutive federal court ruling against state bans on marriage equality since the Supreme Court of the United States struck down key parts of the federal Defense of Marriage Act (DOMA). These rulings have come from judges appointed by both Democratic and Republican presidents.
There are over 70 court cases challenging discriminatory marriage bans across the country in 30 of the 31 states where such a ban exists, plus Puerto Rico. Cases from eleven states are currently pending before four federal appeals courts, including cases from Indiana and Wisconsin which will be heard by the Seventh Circuit Court of Appeals on August 26th. The Tenth and Fourth Circuits both recently upheld rulings striking down state bans on marriage equality – Kitchen v. Herbert of Utah and Bishop v. Smith of Oklahoma in the Tenth Circuit, and Bostic v. Shaefer of Virginia in the Fourth Circuit. In total, 33 states either have marriage equality or have seen state marriage bans struck down as unconstitutional in court.
The Supreme Court is under no obligation as to which case or cases – if any – it choses to hear on appeal. However, Justice Ruth Bader Ginsburg recently told reporters the Court will not “duck” a marriage case. "I think the court will not do what they did in the old days when they continually ducked the issue of miscegenation," Ginsburg said. "If a case is properly before the court, they will take it."