Tim Evans

tim.evans@indystar.com

Indiana's argument for prohibiting same-sex marriage is "totally implausible," a federal appeals court ruled Thursday in upholding a lower court's ruling that the ban is unconstitutional.

The 7th U.S. Circuit Court's decision, though, doesn't clear the way for same-sex couples to wed in Indiana. A stay against the initial ruling remains in effect.

The three-judge panel's ruling, which also decided a similar case in Wisconsin, was at times harsh in its assessment of the state's rational for banning gay marriage.

"The grounds advanced by Indiana and Wisconsin for their discriminatory policies are not only conjectural; they are totally implausible," said the ruling, written by Justice Richard Posner, who was appointed to the appeals court by former President Ronald Reagan.

"The governments of Indiana and Wisconsin have given us no reason to think they have a 'reasonable basis' for forbidding same-sex marriage," Posner wrote. "And more than a reasonable basis is required."

Posner said Indiana's argument that "thousands of years of collective experience has [sic] established traditional marriage, between one man and one woman, as optimal for the family, society, and civilization" was not supported by evidence.

"Formally these cases are about discrimination against the small homosexual minority in the United States," he wrote. "But at a deeper level ... they are about the welfare of American children."

The judges found fault in the argument Indiana pressed hardest. That the only reason government encourages marriage is to induce heterosexuals to marry so there will be fewer accidental births and abandoned children, the court said, overlooks the reality that many such unwanted children are adopted by gay parents.

"Those children would be better off both emotionally and economically," the ruling said, "if their adoptive parents were married."

The ruling also said: "More than unsupported conjecture that same-sex marriage will harm heterosexual marriage or children or any other valid and important interest of a state is necessary to justify discrimination on the basis of sexual orientation."

The decision will not end the legal fight over gay marriage in Indiana, said Carl Tobias, a professor at the University of Richmond School of Law who is following the flood of gay marriage cases now in federal courts across America.

Since last summer, 21 federal courts have weighed in on state same-sex marriage bans, and all but one has found them unconstitutional. The lone affirmation came Wednesday, when a federal court upheld a ban in Louisiana.

Ultimately, he said, the U.S. Supreme Court will have to settle the contentious cultural and legal fight — an opinion shared Thursday by parties on both sides of the Indiana case.

Still, same-sex marriage advocates celebrated the Indiana ruling, hailing it as another step on their long march to equality. Some even rushed to courthouses in Indianapolis and other cities hoping to marry before they learned the stay remained in effect.

"We are very, very happy," said Ken Falk, legal director for the ACLU of Indiana, which represented several of the Indiana gay couples who filed lawsuits challenging the state ban. "We are under no illusion, however, that this is the end of the road."

Paul Castillo, staff attorney for Lambda Legal, which represented several couples challenging the Indiana law, said the decision "affirmed the love and commitment our plaintiffs and thousands of same-sex couples in Indiana and Wisconsin have for each other."

"The unanimous decision also reinforces the importance of marriage for the children of same-sex couples, who shouldn't have to grow up thinking their families are inferior to other families," he said in a statement. "Today's ruling adds to the incredible legal momentum for marriage we are seeing in courts across the country; it is a joyous day for freedom and justice in the Midwest."

Opponents, including GOP leaders and conservative family advocates, downplayed the significance, saying the decision was expected and they are hopeful the Supreme Court will get it right.

Micah Clark, executive director of the American Family Association of Indiana, said the decision was not a surprise, considering Posner's comments at the hearing in Chicago on Aug. 26, when attorneys from both sides were probed with sharp questions.

Clark, who opposes same-sex marriage and has pushed the legislature to add the ban to the state constitution, said his association's position always will remain the same: that the purpose of marriage is to unite men and women.

"Men and women are uniquely different and both are important to marriage, particularly in raising children," Clark said. "Marriage is the institution that does that."

Gov. Mike Pence said he hopes the Supreme Court will rule in favor of states' rights to enact laws concerning marriage. Meanwhile, he said in a statement, "Hoosiers may be assured, as my administration has done throughout this case, we will continue to uphold the rule of law in all executive branch operations" as the case moves forward.

Zoeller said "it seems clear" that a final resolution to the debate will need to be decided by the high court. He said the attorney general's office would soon urge the Supreme Court to stay the appellate court's ruling until an appeal can be concluded.

The appellate court's stay on the initial ruling that found the ban unconstitutional remains in effect, but for how long is unclear.

As a result, Indiana's current ban on gay marriage remains in place — trapped in a sort of legal limbo where it has been declared unconstitutional but remains in force while the appeals process works through the courts. That means county clerks will not be allowed to issue marriage licenses to same-sex couples as they did during a three-day window in June after U.S. District Judge Richard Young first struck down the Indiana law but before the appellate court issued its stay.

Same-sex couples who hoped the appellate court's ruling meant they could file for a marriage license met disappointment at the Marion County clerk's office Thursday. Just after 4 p.m. Marion County Clerk Beth White told two women who came in for a license that she couldn't help them that afternoon.

"As much as I wish I could start issuing licenses to everyone, I can't," White said. "It was sad. It's been disappointing and difficult."

The clerk's office was prepared to stay open late Thursday evening as it did when the ban was initially ruled unconstitutional, but the office closed as usual because the stay remains in effect.

"The worst thing to do would be to put couples in limbo," White said.

Kristine Guerra, Mark Alesia, Barb Berggoetz, Diana Penner and Michael Auslen contributed to this story.

Call Tim Evans at (317) 444-6204. Follow him on Twitter: @starwatchtim.