Jun 25 2014

Now it’s Indiana

Another state down: Federal Judge Strikes Down Indiana Ban on Gay Marriage. Hoosier gays are marryin’ right now!


Skip to comment form

  1. 1
    Nerd of Redhead, Dances OM Trolls

    *more confetti and champagne corks*

  2. 2

    Breaking news, 10th Circuit Federal Appeals Court upholds the decision of a District Court judge to overturn Utah’s ban on same sex marriage.


  3. 3
    Gregory in Seattle

    And in other news, The 10th Circuit Court upholds marriage equality in Utah. Because this is is a circuit court ruling, it applies not only to Utah but to Colorado, Oklahoma, Wyoming, and Kansas as well.

    It will, no doubt, be appealed. Here’s to the hope that the 10th denies an en banc hearing, and the Supreme Court lets the ruling stand: any more hearings will only delay the inevitable.

  4. 4

    I really wish I could ditch work to go downtown and hand out cupcakes to all the happy couples. I will settle for imaginary champagne and confetti.

  5. 5
    Hercules Grytpype-Thynne

    Hello, I’d like to introduce my parents, Hoosier Daddy and Hoosier Other Daddy.

  6. 6
    throwaway, never proofreads, every post a gamble

    The slow creep of justice is making it’s way to my neck of the woods… For the love of all that is good in this world, please, Kentucky, don’t be last and don’t be among the ones forced to recognize SS marriage by the federal government or via the National Guard! I’m sick of being embarrassed by you!

  7. 7
    Lynna, OM

    Following up on the news out of Utah (see comments up-thread) with a few more details.

    By upholding a Utah judge’s decision, the a three-member panel of the 10th Circuit Court of Appeals in Denver became the first appeals court to rule on the issue, setting a historic precedent that voter-approved bans on same-sex marriage violate the Fourteenth Amendment rights of same-sex couples to equal protection and due process.

    But the court stayed the implementation of its decision, pending an anticipated appeal to the U.S. Supreme Court.

    Meanwhile, the state can ask the 10th Circuit Court to re-hear the matter before the full court, according to legal experts.

    University of Utah law professor Clifford Rosky called Wednesday’s ruling, “the most important victory of the entire gay rights movement.”

    It’s the first time a federal appeals court has recognized that same-sex couples have the same fundamental right to marry as all Americans, said Rosky, chairman of Equality Utah’s board of directors.

    “Very few courts have embraced the fundamental rights argument and this court seems to have completely embraced it and applied ‘strict scrutiny,’ the highest standard recognized under constitutional law,” Rosky said.

    If the state asks the 10th Circuit Court to re-hear the matter before the full court, Rosky said he doubts they’ll get a different result, and the request may not even be granted.

    The appeals court upheld U.S. Judge Robert Shelby’s December decision, which struck down Utah’s ban on same-sex marriage and prompted more than a 1,000 same-sex couples to marry during a 17-day window before the U.S. Supreme Court issued a stay, halting all such weddings. […]


  8. 8
    Lynna, OM

    Backlash from conservatives in Utah, especially from the mormon-headed Sutherland Institute, was immediate:

    […] Many conservatives in Utah were disheartened by the ruling, but they have not given up in their fight to keep marriage between a man and a woman, according to the Sutherland Institute, a conservative think tank, which promised to help gather a legal team to defend the state’s gay marriage ban.

    “Any appeal at the U.S. Supreme Court is the main event and may decide the future of marriage for decades, according to a statement from the Sutherland Institute. “Defenders of marriage must be prepared. It’s disappointing to have a few federal judges decide that they can unilaterally override the decision of Utah voters to preserve marriage as society’s way of preserving children’s opportunity to be reared by a mother and father.”

    U.S. Senator Orrin Hatch, R-Utah, issued this statement: “Although I oppose discrimination based on sexual orientation, I have always believed that marriage is a sacred union between one man and one woman. In my view, the U.S. Constitution does not dictate a particular definition of marriage, so I believe such judgments are properly left to the citizens of each State. Although I am not surprised by today’s decision, I disagree with the court’s reasoning and hope the Supreme Court ultimately adheres to the original understanding of the Constitution and allows each State to define marriage for itself.” […]

    Orrin Hatch speaks with forked tongue.

  9. 9
    Naked Bunny with a Whip

    And yet I still see bigots tossing out assertions about things that will happen “if” marriage becomes equal.

  10. 10
    Ogvorbis: Still failing at being human.

    I am happily amazed by two things.

    First, the momentum swing has been breathtaking. Just a few years ago, I really thought we were looking at 15 to 20 years to get rid of this major human rights violation in the US. It took years to go from one state to two, from two to three, and now I cannot keep track of how many states now respect a person’s right to marriage and that makes me happy. And blown away.

    Second, is there something wrong with me that I experience a great deal of schadenfreude as I watch Utah, and Indiana, and other Redgressive states become the latest to recognize that human rights are not up for a vote?

  11. 11
    Marcus Ranum

    I have always believed that marriage is a sacred union between one man and one woman

    Or, in the mormon case, one man and however many women he can afford, as long as he doesn’t get caught.

  12. 12

    Many of the country clerk in Indiana are already allowing gay marriages. Last I heard a couple of counties are dragging their feet saying that they want more direction from the state. I wouldn’t be surprised to one of the county clerk refuse to do the marriage certificates and try to become a right wing martyr.

  13. 13

    U.S. Senator Orrin Hatch, R-Utah, issued this statement: “Although I oppose discrimination based on sexual orientation, I have always believed that marriage is a sacred union between one man and one woman.”

    Here come the ‘no true Mormon’ deniers.

  14. 14
    Lynna, OM

    Here’s a comment from a reader of the Salt Lake Tribune article:

    We’re not allowed, through our states, to even protect the unborn from cold blooded murder for hire, BEATING HEARTS of little children, so why should it be a surprise to anyone that we’re not allowed, by the judicial tyrants, to regulate marriage contracts based on the clear voice of the people.

    Utah should secede. Any state that will side with proper marriage between a male and his female(s) should secede. As I said in my earlier post, Utah shouldn’t bother appealing to the supreme court because it’s over. This union of states has become fully destructive and satanic.

  15. 15
    Wes Aaron

    Um if they secede the U.S. could just invade and still have authority. Besides without HAFB they would lose the support of their residents. Utah may be a LDS majority, but even the religious here aren’t that right wing religious bat-shit crazy outside of a few small groups.

  16. 16
    Tony! The Queer Shoop

    Gregory in Seattle:

    Because this is is a circuit court ruling, it applies not only to Utah but to Colorado, Oklahoma, Wyoming, and Kansas as well

    Pardon my ignorance, but why is this the case?
    (not disputing you, I just don’t know enough about the court system)

  17. 17

    …and in further news, tens of thousands of heterosexual married couples are filing for divorce and cruising gay bars for new partners.


  18. 18

    Utah should secede.

    Naw, it’s just time for the Mormons to pick up and move again. How about Antarctica this time?

  19. 19

    Tony @#16

    IANAL, but this was in the article Gregory linked:

    It is the first ruling by a federal appellate court since last year’s victory in the Supreme Court and, unless reversed, will pave the way for the freedom to marry throughout the 10th Circuit, including in Colorado, Oklahoma, Wyoming, and Kansas.

    So it seems correct. Of course, it could be appealed to SCOTUS.

  20. 20


    How about Antarctica this time?

    Won’t someone think of the children penguins?

  21. 21
    Gregory in Seattle

    @Tony #16 – In the United States, the federal court system begins with the District Courts. At their largest, a district covers a single state. More populous states, though, are subdivided into two or more districts: California and New York both have four districts, and my state, Washington, has two. The district courts are the primary trial courts: most, if not all, federal cases begin in a district court.

    Each district court is part of a circuit court. The name originated centuries ago, when high ranking federal judges would travel from district to district to hear cases. There are 11 circuits, each covering several states. Circuit courts are courts of appeal: they hear arguments for and against district court rulings and decide whether or not the lower ruling is valid. Because no district court extends beyond the boundaries of a single state, every district court is part of one and only one circuit court.

    Above the circuit court is the Supreme Court of the United States of America. Like the circuits, it is a court of appeals (although it does have a very few matters of original jurisdiction, as laid out in the US Constitution.) It can take appeals directly from the district courts, but that is very rare: they usually consider cases only after a circuit court has weighed in.

    Because the US system of jurisprudence is inherited from the British system, our system is rooted in the idea of common law, meaning that precedent set by one court must be observed by all lower courts within the higher court’s jurisdiction. A ruling issued by a district court creates precedent only within that district. A ruling issued by a circuit court creates precedent only within that circuit. A ruling issued by the US Supreme Court creates precedent that is binding on all courts.

    So what happened here was: In the matter of Kitchen v. Herbert, Judge Robert J. Shelby of the District Court of Utah held a trial. In December, 2013, Judge Shelby ruled that the state’s ban on same-sex marriage was unconstitutional. The state appealed: since Utah is in the jurisdiction of the 10th Circuit Court of Appeals, the case was appealed to the 10th Circuit. The case was combined with Bishop v. Smith, where a similar ruling had recently been issued in Oklahoma. A panel of three judges out of the circuit’s 21 judges, chosen by lottery, heard the oral arguments and considered the briefs that had been submitted. Today, the three judges issued a unanimous ruling that upheld the District Court’s verdict. That creates precedent — in the form a very strongly worded ruling — that is binding to the entire circuit: Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.

    Under US federal court practices, the state of Utah may now request an appeal to the entire 10th Circuit Court, in what is called an en banc appeal (Latin for “the whole bench” or something close.) While a circuit court can allow an en banc appeal, they are quite rare and occur only when there are district courts in the same circuit that have set different precedents. Because all district courts in the 10th Circuit that have heard marriage equality cases have ruled that they are unconstitutional, there is no ambiguity in the rulings so an en banc appeal will almost certainly be denied.

    The last step would be an appeal to the US Supreme Court. The Court may decide not to hear the appeal, in which case the ruling of the 10th Circuit remains in place, but only within the six states covered by the circuit. If that happens, marriage equality becomes a reality not only in Utah, but in Colorado, Kansas, New Mexico, Oklahoma and Wyoming as well. If the Court does hear the appeal, and rules that the district court ruling was correct, then precedent is set on the entire country and marriage equality comes to all states, territories, possessions and any other jurisdiction where US law applies.

    Of course, the Court could hear the appeal and overturn the trial verdict. A lot depends on how such a ruling is worded, but the gist would be the same: same sex couples do not have a legal right to be married, and states can keep marriage bans in place.

  22. 22

    From comment #8, Orrin Hatch says

    In my view, the U.S. Constitution does not dictate a particular definition of marriage, so I believe such judgments are properly left to the citizens of each State.

    Orrin just did an own goal. The ninth amendment says that rights not specified are retained by the people, NOT by state or local government. Gays in each state are the people too, so they retain the right to define marriage.

  23. 23
    Gregory in Seattle

    At least one county clerk in Colorado has said, “Done is done” and Boulder County has started issuing marriage licenses. The clerk says that the stay only applies to Utah and not to the other states in the circuit; the state Attorney General says that the stay applies to Colorado as well.

    Pardon a moment, I need to get some popcorn for this one.

  24. 24
    Gregory in Seattle

    Correcting myself at #21: the 10th Circuit ruling was 2-1, with Paul J. Kelly Jr dissenting. The other two judges were Carlos F. Lucero and Jerome A. Holmes. Lucero was appointed by Bill Clinton, Kelly and Lucero by Bush II.

  25. 25
    Tony! The Queer Shoop

    Gregory in Seattle:
    Thank you for taking the time to explain. Much appreciated.

  26. 26

    Shouldn’t that be: “Hoosier gays are amarryin’ right now.” ?

  27. 27
    Nerd of Redhead, Dances OM Trolls

    Just checked on the Illinois situation. Since 6/1/14, marriage is between two consenting adults per state law, period. Cook County and a few others jumped the gun with county court rulings or county clerks using the Cook County ruling starting in February, but I suspect here in Lake county, they waited until the last minute to implement the change. When doing a Google search, I saw how now Lake County was explaining how to apply for a marriage license even for a gay/lesbian couples, with the state required (one day) waiting period for the ceremony. Progress.

  28. 28

    My aunt and uncle are both pastors in Indiana, and performed one of the first same sex marriages in their church today. I thought the day I’d see something like this was still at least 10 years away. This is really a pretty great day!

  29. 29
    Nerd of Redhead, Dances OM Trolls

    I’m still waiting to see how having gay marriage hurts, damages, or taints the 41+ years the Redhead and I have been married. Somehow, I think a cogent and non-paranoid reply isn’t forthcoming.

  30. 30
  31. 31
  32. 32


    is there something wrong with me that I experience a great deal of schadenfreude as I watch Utah, and Indiana, and other Redgressive states become the latest to recognize that human rights are not up for a vote?

    –>If that’s wrong, I don’t wanna be right. I have the exact same frisson of happiness for the exact same reason. With added “stick that in your pipe and smoke it!” and a flamboyant hand gesture.

  33. 33

    So, what’s the score now? How many states now have gay marriage?

  34. 34

    Re: RobertL @ #33…

    Kind of depends on how you count. The standard answer (at the moment) would be: 19 plus DC.

    There is (so far) no stay in Indiana, so one might consider the count to be 20. But then, some county clerks in Colorado don’t think the stay in Utah applies to Colorado, so the count might be 21. But wait! If the Colorado clerks are correct, the same situation would apply in Kansas and Wyoming, making the count 23. One presumes that, since the cases were combined, the stay would apply to Oklahoma, which keeps the count from going to 24. Since new Mexico is part of the 19 (thanks to the NM State Supreme Court some time back), the 10th Circuit decision is moot there.

    Slate (http://www.slate.com/articles/news_and_politics/jurisprudence/2014/05/gay_marriage_map_where_is_same_sex_marriage_legal.html) has a map. You can click on a state to get a description of the situation. If what I’ve read elsewhere is correct, the notes for North Dakota are out of date (I’ve read that a challenge has been filed, but the note doesn’t reflect that.)

  35. 35
    Tony! The Queer Shoop


    I think the Wikipedia map here is current.

  36. 36

    Re: Tony @ #25….

    The two maps are “measuring” different things. The Wikipedia map is giving the status quo. The Slate map (where the issue hasn’t been settled) is showing where the cases are in progress. So both maps are useful. The Slate map can be used to determine states to keep an eye on for judicial rulings. The Wikipedia map doesn’t help with that aspect of the situation.

    FYI…for those following this, the 6th Circuit has had oral arguments in the Virginia case so that decision could show up at any time.

  37. 37

    Congratulations to my across the street neighbors (married yesterday) and to their two children who now all have the protections they deserve and that my wife and children could take for granted for lo these many years.

  38. 38
    Tony! The Queer Shoop

    Thank you for the clarification.

  39. 39

    Emergency stay has been granted. Marriages have been halted for now.

Leave a Reply