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Same-Sex Marriage in Indiana Likely to Remain Unsettled Until U.S. Supreme Court Weighs In

I wanted to take a quick side-step from criminal law issues to speak about the issues surrounding the biggest legal news to come out of Indiana in several years.As many of you probably know at this point, Chief Judge Richard Young of the United States District Court, Southern District of Indiana declared that Indiana’s same-sex marriage ban was unconstitutional, citing the United States vs. Windsor decision made by the Supreme Court of the United States last term. It’s a very well-reasoned decision from a legal standpoint, and it is similar in tone to other federal district court decisions on this same issue.

Immediately after the ruling, clerks in all but seven Indiana counties began issuing marriage license to same-sex couples. In Marion County alone, the clerk had issued more than 500 marriage licenses to same-sex couples. However, Indiana’s attorney general requested a stay of the ruling to put a stop to the issuance of licenses, and on June 27th, just two days after the decision, the U.S. Court of Appeals for the 7th Circuit issued such a stay, effectively stopping same-sex marriages in Indiana pending the outcome of an appeal.

While it’s usually a VERY bad idea to state that anything in the law is inevitable, it’s pretty clear that the legality of same-sex marriage will almost certainly end up before the Supreme Court. This is not an automatic process, though. As the highest appellate court in the country, a case has to be litigated at the district court and appellate court levels before it can even be presented to the Supreme Court. At this moment, only the 10th Circuit has rendered a decision that would be eligible for consideration by the Supreme Court, although there will likely be a decision from the 4th Circuit Court of Appeals regarding Virginia’s statutes within the next few months. These decisions may make the issue ripe for the Supreme Court to accept jurisdiction of the case.

Even then, don’t expect a fast decision. The Supreme Court is in session from October thru July, and will sometimes set its calendar more than a year in advance. Even if the Supreme Court decides to expedite hearing the case, they have a tendency to issue their “hot button” decisions right at the very end of the term. If the Supreme Court agreed to hear a gay marriage case tomorrow, you still wouldn’t likely see a final decision until about this time next year.

The current ideological differences on the Supreme Court also fail to make this an inevitable decision, too. When the Supreme Court decided Brown vs. Board of Education in 1954 to end segregation, Chief Justice Earl Warren spent a lot of time behind the scenes negotiating with his fellow Justices to guarantee that the decision would be 9-0. This was because he knew that a unanimous decision would be harder for persons opposed to the decision to attack the validity of the Court’s ruling. Windsor was decided 5-4. It is improbable that any gay marriage decision would be decided by a different margin, and a change in the opinion of Justice Anthony Kennedy could result in same-sex marriage bans being upheld as constitutional. While society is very different now than it was 60 years ago, and lynchings of homosexuals are nowhere near as common as they were for black people, a sharply divided Supreme Court decision could lead to continued litigation long after the issue should be considered “settled”.

While everyone here at Razumich Law is hoping that all people in Indiana can ultimately have the opportunity to marry those that they love, I just wanted to remind everyone that nothing in the law is ever easy, and that there is still a lot of road left to be traveled. Just remember that the destination always makes the journey worth it.

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