Attorney General’s Office issues guidelines on same-sex marriage after stay

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INDIANAPOLIS (July 1, 2014) – The Indiana Attorney General’s Office laid out the guidelines for county clerks following last week’s ruling on same-sex marriage and the resulting stay issued Friday.

According to Bryan Corbin, public information officer for the Indiana Attorney General, the stay granted by the 7th Circuit Court of Appeals in Chicago means Indiana’s law banning same-sex marriage is in full effect.

But questions remain as to what county clerks should do about the marriage licenses and ceremonies performed last week.

Here are the guidelines from the Attorney General’s Office:

County Clerks

During the litigation, the Attorney General’s Office as state government’s lawyer has kept in regular communication with county clerks offices in the 92 Indiana counties. County clerks have asked how they should address situations involving a number of same-sex marriage licenses they granted and/or marriages performed between mid-day June 25, when the district court invalidated the marriage definition limitation, and late afternoon June 27, when the 7th Circuit stayed the district court’s order.

With the caveat that the Attorney General’s Office does not represent county clerks and cannot provide private legal advice, the AG’s Office conducted legal research and offered guidance to county clerks today:

  1. We have not concluded, nor suggested that clerks conclude, that any same-sex marriage licenses issued or same-sex marriages solemnized between June 25 and June 27 are void or invalid, regardless of whether they have been solemnized or recorded.  The validity is undetermined and such issues might have to be determined by a court later.
  2. For situations where a marriage license was obtained from the county clerk before the stay order was issued but the signed marriage license is returned to the clerk after the stay, then the guidance is that clerks should respect the 7th Circuit’s stay order and refrain from further processing or recording solemnized duplicate same-sex marriage certificates.
  3. Likewise, the guidance is that county clerks, judges and other officials who solemnize marriages should refrain from performing any additional marriages of same-sex couples – even if a license were issued during the two-and-a-half-day window before the stay – until there is a conclusive ruling in the appeal.
  4. County clerks have the discretion to issue refunds of the marriage license fees that applicants paid, on request. Applicants may wish to have Clerks hold the licenses and solemnized certificates pending resolution of the appeal.  The guidance is that clerks follow their normal refund practice if a refund is requested.

The AG’s Office also recommended each clerk consult with their county attorney who provides legal representation for the clerk.  Although not an official legal opinion of the Attorney General’s Office, this guidance is intended to help clerks navigate unfamiliar legal terrain.  Guidance is subject to change based on future rulings of the court or future legislative action.

Other questions

  • On Monday, plaintiffs’ lawyers filed an emergency motion seeking to lift the stay as to plaintiff Nikole Quasney only and not as to other plaintiffs, and the Court issued an order expediting briefing for the appeal.  Our comment is:  We appreciate the expedited scheduling of this case to provide judicial guidance following the district court’s ruling.  The Attorney General’s Office again expresses its sincere sympathy regarding the ill plaintiff’s medical condition.  In the underlying lawsuit, the State’s appeal of the federal district court’s ruling June 25 is ongoing, and briefing in the appeal should be completed by August 5th.  The 7th Circuit will schedule oral argument for a date soon after briefing is completed.
  • One local media account incorrectly stated that the Attorney General’s Office was asking the public to telephone the AG’s Office and “vote” in an informal survey or poll as to whether or not the office should appeal.  This assertion is inaccurate; the Attorney General’s Office has not conducted any telephone vote, poll or survey or tracking of callers’ comments.  Rather, phone calls from the public, have been and will continue to be handled through the same channels that are used for constituent inquiries, consumer calls and calls regarding unclaimed property claims.  Constituents often contact the AG’s Office to express opinions on a variety of topics and are welcome to do so on this subject.  But the premise of the assertion Friday was incorrect; the State’s appeal already has been filed, the appeal is ongoing and will continue in the 7th Circuit.

 

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