Tim Evans, and Justin L. Mack

IndyStar

The U.S. Supreme Court is sending a message that the gay marriage debate in America is over — or the justices are risking greater disarray later.

Such is the opinion of legal experts and the leader of the Indiana Senate after the high court refused Monday to take up a request from Indiana and four other states to hear appeals of federal court rulings that struck down the states' bans on same-sex marriage.

The Supreme Court's decision let stand two federal court rulings that said Indiana's law limiting marriage to the union of one man and one woman is unconstitutional.

The court's inaction, in essence, legalized gay marriage in Indiana and is likely to have the ripple effect of legalizing same-sex marriage in 10 other states. That would bring the total number of states where gay marriage is legal to 30.

Monday's action appeared to telegraph the court's lack of support for state marriage bans, said Carl Tobias, a law professor at the University of Richmond who has been following same-sex marriage cases.

"You could see it as some kind of signal that there are not five votes to find the bans are constitutional," he said. "Otherwise, you're just going to create a big mess" by allowing gay marriage to expand in new states.

"I just don't see, in the face of that, that the Supreme Court is going to come down the other way and try to undo all of that," Tobias said. " It just doesn't make any sense as a practical matter."

Steven D. Schwinn, a professor at the John Marshall School of Law in Chicago, agreed but noted the high court still has not officially ruled on the legal merits of same-sex marriage.

"It's hard to say the Supreme Court is sending a message, but the reality on the ground is that it did send a signal," Schwinn explained. "The court is allowing same-sex marriage to go forward in a number of states, and doing that makes it all the more difficult, as a practical matter, for the court to come back later and say the bans are constitutional."

The justices, Schwinn said, are fully aware of the social and legal ramifications of their decision.

So, too, it appears, is Indiana Senate President Pro Tempore David Long, R-Fort Wayne.

"It is surprising, given the importance of this issue to our society, that the U.S. Supreme Court has decided not to take up this matter but instead to rely upon lower court rulings," Long said. "That being said, the court appears to have sent a message that if they ultimately do hear these cases, they will support these lower-court rulings and find that same-sex marriage is on equal footing with traditional marriage."

Long added the decision also means the end of efforts to amend the Indiana Constitution to include a ban on gay marriage. Indiana lawmakers passed a version of that amendment under House Joint Resolution 3 earlier this year, but it would need to be approved a second time by the legislature before it could go to voters.

Schwinn said the Supreme Court could step back into the contentious national debate if one of the federal appellate courts that now have same-sex marriage cases pending would find a state ban is constitutional. That would set up a circuit split that the high court would be forced to address, he explained.

"On a really important and high-profile public issue like gay marriage," Schwinn said, "the Supreme Court would almost certainly have to step in."

Despite the possibility, however faint, that the Supreme Court still could ultimately find state bans are legal, gay-rights advocates hailed Monday's decision.

Meanwhile, some opponents acknowledged, at least for now, that they have lost a major battle, though they aren't ready to concede the war.

Ken Falk , legal director of the ACLU of Indiana, which filed one of the lawsuits that led to the state's ban being overturned, said same-sex marriage is now a reality in Indiana, and he expects people to soon wonder what all the fuss was about.

"The effect of (today's) decision is that this case is over. There is nothing that can be done by way of an Indiana constitutional amendment or Indiana law to alter that fact," he said.

Falk said the feeling of triumph is not exclusive to just the plaintiffs and their legal counsel. It extends to all Hoosiers who felt that a change was long overdue.

"Although there may be some who disagree now … this is a great day for the state of Indiana," Falk said. "I think a month from now, it's gonna be no big deal, and that is the transformative nature of this issue. Rarely has there been an issue that has just eclipsed the law, and America's attitude about same-sex marriage has far eclipsed, with speed, these court cases."

Paul D. Castillo, lead attorney in a case brought by Lambda Legal challenging Indiana's law banning same-sex marriage, said the pace at which public and legal opinion has turned is unprecedented.

"In American history there has never been a comparable social phenomenon that has achieved victory so quickly," he said.

Critics and opponents of same-sex marriage, including Indiana Attorney General Greg Zoeller , continued to call on the Supreme Court to step in and issue a definitive verdict on same-sex marriage.

"Our nation and all sides involved needed a conclusive Supreme Court ruling to bring finality to the legal question of state authority to adhere to the traditional definition of marriage," Zoeller said.

Micah Clark, executive director of the American Family Association of Indiana, said the Supreme Court's action set up the potential for even greater chaos because several challenges are still pending before other federal courts. Clark said he and other conservative groups will be calling on Gov. Mike Pence to continue enforcing the state ban on gay marriage because the Supreme Court could still take up appeals from other federal appellate courts.

"A ruling for natural marriage or even state sovereignty would have a big impact if the state gets ahead of the Supremes and erroneously open the doors to same-sex marriage," he said.

Pence said in a statement that his office would abide by the court's decision.

"Under our system of government, people are free to disagree with court decisions, but we are not free to disobey them," the governor said.

Zoeller said he plans to advise county clerks, as he has done throughout the legal process, on how they are to proceed. He said his office is awaiting the U.S. Court of Appeals for the 7 th Circuit to issue a mandate lifting the stay of its September ruling that found Indiana's law violated the constitution. The attorney general had requested that stay, which blocked gay marriages while the decision was being appealed to the Supreme Court.

Democratic legislative leaders said the court's decision shows that it is time to move on to more important issues facing Indiana.

House Democratic Leader Scott Pelath from Michigan City said the Supreme Court has made it clear that this long and divisive marriage debate is over.

"For political purposes, we have squandered nearly a decade of our people's energy on the issue of who loves whom," he said. "The gamesmanship has dragged on and on through the past few legislative sessions. But as one court after another has struck down bans on same-sex marriage, the pointlessness of this maelstrom has become even more obvious."

Indiana House Speaker Brian Bosma , R-Indianapolis, declined to comment.

Marion County Clerk Beth White and some other county clerks were not waiting for the mandate. The appellate court's September order said the stay "will terminate automatically" if the certiorari petition is denied, which the Supreme Court did Monday. White's office issued seven marriage licenses.

The Hamilton County Clerk also was prepared to issue marriage licenses to gay couples, but received no requests. Clerks in Boone, Hendricks and Johnson counties were waiting for the official mandate from Zoeller .

Katie Burris left for the Marion County clerk's office as soon as she heard the news Monday morning and waited there almost two hours for her partner, Evangeline Cook. Just before 1 p.m . they became the first same-sex couple to be issued a license in the county after the Supreme Court declined to consider the state's appeal. They were hoping to have their wedding ceremony later Monday.

"I can't even put it into words how important it is to say my romantic partner is my wife," Cook said. "The fight is not over, but there's hope."

Greg Hasty and his husband, CJ Vallero , who were plaintiffs in one of the lawsuits, were among the more than 800 couples that got married during a three-day window in June after U.S. District Judge Richard Young first ruled that Indiana's ban on gay marriage was unconstitutional.

After months of uncertainly, their June 25 marriage will now remain on the books. Still, Hasty says the fight is not over.

"While it's over for us and we're ecstatic, it's not over for other people," Hasty said. "I feel a little solidarity with them, so I'll be watching as we hope every domino falls across the country and we go from 30 states to 50 states."

One same-sex Hoosier couple who were married in Maryland also welcomed the high court's decision but for a different reason.

Indianapolis attorney Clayton Morgan said the couple had been looking to part ways but were hampered by Indiana law. Because Indiana law did not recognize same-sex marriages, state courts had struggled with how to handle divorce petitions involving gay couples who were legally married in other states.

"Some people want to get married, and some people want to get divorced," Morgan said. "Now everybody has the freedom to do what they want."

Jill Disis , Justin Mack, Bill McCleery and Michael Auslen contributed to this story. Call Tim Evans at (317) 444-6204. Follow him on Twitter: @ starwatchtim.





Mapping the Supreme Court's refusal to hear same-sex marriage issue