Barb Berggoetz

barb.berggoetz@indystar.com

To the state of Indiana, the hundreds of same-sex marriages performed statewide after a federal judge overturned Indiana's gay marriage ban aren't legal now.

The decision of Gov. Mike Pence's administration to not recognize the marriages, outlined in a memo issued this week, sparked a contentious debate over whether the governor was taking a political stance that was legally wrong, or taking the only legal path available to him.

For some same sex couples, the governor's decision leaves such things as health benefits, state income tax joint filings and possibly hospital visitation rights hanging in the balance as the gay marriage issue is resolved in the courts.

The problem began when U.S. District Judge Richard Young struck down Indiana's gay marriage ban on June 25, and hundreds of gay couples, including about 550 in Marion County, rushed to county clerks' offices to get married. That window closed three days later, on June 27, when the 7th U.S. Circuit Court of Appeals stayed Young's ruling, restoring Indiana's law while the state's appeal moved forward.

The governor contends that ruling leaves him no choice.

"I appreciate the confusion that has been created by different federal court decisions, but as governor I have to see to it that the state operates in a manner consistent with Indiana law," Pence said.

Mark G. Ahearn, the governor's chief counsel, issued a memo this week to executive branch agencies, saying Indiana's law against same-sex marriages "is in full force and effect and executive branch agencies are to execute their functions as though the U.S. District Court Order of June 25 had not been issued."

It also said the state will comply with the Court of Appeals' individual order recognizing the marriage of Amy Sandler and Niki Quasney. The court made an exception for the Hoosier couple because Quasney has terminal ovarian cancer.

Supporters and their attorneys believe the marriages were legal when they occurred — before a federal appeals court stayed the decision scrapping the law — and should remain legal now.

"This highlights the fact that same-sex couples throughout the state will continue to undergo significant harm and be treated as second class citizens until final resolution of the appeals process," said Paul Castillo, staff attorney for Lambda Legal. The national gay rights organization brought one of the lawsuits that led to the June 25 decision by Young striking down Indiana's law.

Kenneth Falk, legal director of the American Civil Liberties Union of Indiana, said the governor's interpretation of the appeals court ruling is simply wrong and the gay marriages are still legally binding. Falk said he is considering whether to take any action on behalf of those couples, while the court considers the state's appeal of Young's ruling.

Senate Democratic Leader Tim Lanane, D-Anderson, called the governor's interpretation of the court order "excessive and unnecessarily adds further confusion to this matter."

He believes the governor has "jumped to conclusions that don't clearly come from the order" and that as the case goes through the judicial process, common sense and equality will prevail.

But Micah Clark, executive director of the American Family Association of Indiana, agrees with the governor's stance.

"I think it's a prudent move and very wise to wait and see what the higher courts do with this," he said. "It's a ping-pong ball going back and forth and it's best for the state to see what happens."

The state, he said, shouldn't change policies or add new people to health care plans based on one judge's interpretation of the state's marriage law.

The confusion over these gay marriages, contended Eric Miller, founder of Advance America, a conservative activist group, was created by Judge Young. "He should have immediately granted a stay while the issue is under appeal," said Miller.

Gay couples who got married during that three-day period say they are frustrated.

"I think they could have easily left the marriages intact," said Chris Paulson, board president of Indiana Equality Action, who married her partner, Deanna Medsker, in late June. "I think the marriages will be restored as it goes through the process. I also think they will be federally recognized shortly. But in the meantime, this puts a lot of people in limbo."

She added: "I'm not surprised, but I am disappointed."

She and her partner signed up for joint health care insurance benefits Tuesday. Because Paulson works for a national company, she thinks it probably will recognize their marriage and give them benefits, but she's not sure.

Federal officials have said they will recognize the marriages that took place during similar legal windows in other states, concerning federal benefits and programs such as Social Security and income taxes.

States, too, are grappling with issues created by similar rushes to the altar between court rulings.

In Michigan, a federal appeals court has set a hearing for Aug. 6 on a motion seeking to force the state to recognize 300 marriages conducted during a similar window in March.

Castillo said there is precedent for courts to recognize the marriages during the appeals process. In Utah, Castillo said, 1,000 marriages were performed during that window period and a district court ruled the marriages valid. That ruling is being appealed in federal court.

He said Lambda Legal will certainly make a case to restore the marriages of the Indiana same-sex couples before the 7th Circuit. But he said it's too early to tell exactly what the organization will do.

Some point to political motives for the administration's stance.

"It's completely ridiculous. It's all politics," said Jake Miller, of Indianapolis. He and his partner, Craig Bowen, were the first gay couple to be married at the Marion County clerk's office. He said he believes the stance is a way for Pence to appeal to his right-wing base to get votes and support.

The governor's office didn't respond to those accusations.

But Miller said the administration's action doesn't put a damper on his marriage, particularly because everything is in limbo anyway.

"As far as I'm concerned, we have the license and it was issued and we paid for it," said Miller. "The fight is not over."

Star reporter Tim Evans contributed to this story.

Call Star reporter Barb Berggoetz at (317) 444-6294. Follow her on Twitter: @barbberg.