Notwithstanding the Supreme Court’s order in Kitchen v. Herbert, Indiana District Court Fails to Grant Stay

June 25th, 2014

And while I was writing this post about same-sex marriage stays and the rule of law, I see that a district judge struck down Indiana’s ban on same-sex marriage, and did not grant a stay.

The court has never witnessed a phenomenon throughout the federal court system as is presented with this issue. In less than a year, every federal district court to consider the issue has reached the same conclusion in thoughtful and thorough opinions – laws prohibiting the celebration and recognition of same-sex marriages are unconstitutional. It is clear that the fundamental right to marry shall not be deprived to some individuals based solely on the person they choose to love. In time, Americans will look at the marriage of couples such as Plaintiffs, and refer to it simply as a marriage – not a samesex marriage. These couples, when gender and sexual orientation are taken away, are in all respects like the family down the street. The Constitution demands that we treat them as such. Today, the “injustice that [we] had not earlier known or understood” ends. Windsor. Because “[a]s the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” Lawrence.

Couples have already begun marrying. Did the judge not see what the Judge in Wisconsin did?  I don’t see any citation to Herbert v. Kitchen. Indiana has filed an motion for stay pending appeal, noting all of the courts that have granted stays since Kitchen.

Federal courts across the country have fallen into line by staying injunctions involving traditional marriage definitions, both with respect to licensure of same-sex marriages within a State and recognition of same-sex marriages performed in other jurisdictions. Wolf v. Walker , No. 14-cv-64-bbc, 2014 WL 2693963, at *6 (W.D. Wis. June 13, 2014) (“[S]ince [ Kitchen ] , every statewide order enjoining the enforcement of a ban on same-sex marriage has been stayed, either by the district court or the court of appeals, at least when the state requested a stay.”); see, e.g. , Bishop v. United States ex rel. Holder , 962 F. Supp. 2d 1252, 1296 (N.D. Okla. 2014) (licensure); Bostic v. Rainey , No. 2:13-cv-395, 2014 WL 561978, at *23 (E.D. Va. Feb. 13, 2014) (licensure and recognition); De Leon v. Perry , No. SA-13-CA-00982-OLG, 2014 WL 715741, at * 28 (W.D. Texas Feb. 26, 2014) (licensure and recognition); Bourke v. Beshear , No. 3:13-CV-750-H, 2014 WL 556729, at * 14 (W.D. Ky. Mar. 19, 2014) (recognition); DeBoer v. Snyder , No. 14-1341, Doc. 22-1 at 3 (6th Cir. Mar. 25, 2014) (licensure)

Indeed, the Sixth Circuit reversed the district court’s denial of a stay of its injunction in Tanco v. Haslam , No. 3:13-cv-01159, 2014 WL 1117069, at *5 (M.D. Tenn. Mar. 20, 2014), that barred defendants from “enforcing” Tennessee’s anti-recognition statute and constitutional amendment against the six named plaintiffs in that case. Order, Tanco v. Haslam , No. 14-5297, Docket No. 29, at 2 (6th Cir. Apr. 25, 2014) (per curiam). The court found persuasive the district5 court’s grant of stay of its own injunction in Henry v. Himes , No. 1:14-CV-129, 2014 WL 1512541, at *1 (S.D. Ohio Apr. 16, 2014), explaining that “[r]ecognition of same-sex marriages is a hotly contested issue in the contemporary legal landscape, and, if [the state’s] appeal is ultimately successful, the absence of a stay as to [the district court’s] ruling of facial unconstitutionality is likely to lead to confusion, potential inequity, and high costs.” Tanco , Order at 2. The court ruled that, “[b]ecause the law in this area is so unsettled, in our judgment the public interest and the interests of the parties would be best served by this Court imposing a stay on the district court’s order until this case is reviewed on appeal.” Id.

Similarly, the Ninth Circuit granted a temporary stay in Latta v. Otter , where the district court denied an emergency motion for a stay, Order, Latta v. Otter , No. 1:13-cv-00482-CWD, Docket No. 100, at 3 (D. Idaho May 14, 2014), while it fully considered an emergency motion for stay. Order, Latta v. Otter , No. 14-35421, Docket No. 109, at 2 (10th Cir. May 15, 2014).

The Supreme Court “sent a strong message” with its “unusual intervention” in Kitchen v. Herbert that stayed a final, permanent injunction against enforcement of traditional marriage definitions. Bourke , 2014 WL 556729, at *14. This Court should heed that message and stay enforcement of its Final Judgment and all related injunctions pending appeal.

At least there haven’t been any judges on the 7th Circuit who weighed in on same-sex marriage.

Update: The Lambda Legal brief offers an explanation of why a stay should not be issued in this case–basically, the ruling would only apply to two people.

Unlike Kitchen, this Court did not grant statewide facial relief. Instead, the Court granted narrow, as-applied relief to one family based on a record that described specific and particularly dire harm. There can thus be no concern that the Court’s ruling with respect to one family, if reversed, would cause any confusion or costs. (See PI Order at 13 n.1. (“Should this injunction be reversed or a permanent injunction not [be] issued at a later time, only the parties to this case may suffer from confusion. The court has faith that their respective attorneys can explain any decisions and effects from those decisions to them.”).) Likewise, while the preliminary injunction in Kitchen concerned Utah’s prohibition against unmarried couples seeking licenses and marrying in Utah, the preliminary injunction here concerns the State’s refusal to recognize an already-existing marriage. Unlike Kitchen, there is no concern that same-sex couples will rush to obtain marriage licenses in Indiana, or that those marriages would need to be unwound in the event of a reversal, because no same-sex couples are allowed to marry by virtue of this Court’s narrow, as-applied relief. For these reasons, the concerns raised in Kitchen and its progeny are not present here and provide no justification to grant a stay in this case.

Yet, shortly after the decision was issued, marriages began statewide.