ACLU Responds To Zoeller's Request For Same Sex Marriage Delay
Falk: Attorney General doesn't meet criteria for delay of order legalizing same sex marriage.
Jun. 27, 2014
The ACLU of Indiana has filed an objection to the state's request for a delay in a federal judge's order legalizing same-sex marriage.
Attorney General Greg Zoeller asked U.S. District Judge Richard Young for an emergency stay of Young's order on Wednesday that struck down Indiana's ban on same-sex marriage. "(M)arriages in violation of Indiana’s existing law have taken place, are taking place, and will continue to take place pursuant to this Court’s order. Time is of the essence to stop these marriages by staying this Court’s final judgment and all related injunctions pending appeal in order to maintain the historic status quo of man-woman marriage that Indiana and its citizens have adopted," Zoeller's appeal read in part.
The ACLU's filing argued that the state does not meet the mandatory requirements for a stay. Among them, demonstrating the likelihood that the state would win on appeal. "This case is the 14th or 15th case in the federal courts in the last year that have struck down similar requirements, and we don't think the state has a likelihood of success on the merits", said Ken Falk, legal director for the ACLU of Indiana. He says the state also must show it will suffer irreparable harm if the stay is denied. "The harms that will be done to people whose marriages are finally being recognized would certainly be extreme if the stay were to be allowed", Falk said, adding that he thought the harm to same-sex couples would be far greater than the harm to the state.
Zoeller also argued that Young's decision to have his ruling take effect immediately creates confusion, among county clerks and same sex couples. "Given that there is no final resolution of the same-sex marriage issue, the Court’s ruling creates public uncertainty and a sense of chaos as to what Indiana law is now and what it portends in the long term. This is true not only with respect to eligibility for marriage licenses but also eligibility for marriage benefits down the road, including employment, retirement, health care, and even probate issues", Zoeller wrote.
Falk argues that there should be no confusion based on Zoeller's own words in a statement he issued prior to his filing for a stay. "I think the Attorney General very admirably shortly after this decision was entered issued a memo to (county clerks) informing them of the case and informing them of the need to respect the law", Falk said. Governor Pence issued a similar statement, though four counties have chosen not to issue marriage licenses to same-sex couples because Zoeller only requested they comply with Young's order and did not order them to do so.
Zoeller has already said he will appeal Young's ruling to the 7th Circuit Court of Appeals in Chicago.