On Tuesday, U.S. District Court Judge Richard L. Young, a Clinton appointee, issued a follow-up marriage equality ruling in Indiana, ordering that the state must also recognize same-sex marriages performed out of state. Young’s brief follow-up decision does not further weigh the merits of the right for same-sex couples to marry, but it does take aim at Gov. Mike Pence (R) for doing “what he claimed he could not do.”
Pence had explained in a filing last year that he had no authority to enforce the state’s ban on same-sex marriage, so the court agreed to remove him as a defendant. In the wake of Young’s earlier marriage equality ruling, however, he demonstrated just the opposite — what Young described as a “bold misrepresentation.”
There was originally no stay placed on Young’s June ruling, so Pence’s general counsel sent a memo to all executive branch agencies directing them to comply with the decision, and same-sex couples began marrying across the state. When the decision was stayed on July 7, a second memo read, “The Governor’s general counsel instructed all executive branch agencies to stop any processes they had commenced in complying with the District Court order of June 25.” That memo dictated that the same-sex marriage ban “is in full force and effect and executive branch agencies are to execute their functions” as if the original decision had not been issued.
These memos sent from Pence’s office, Young observed, “clearly contradict his prior representations to the court.” Given his “specific ability to command the executive branch regarding the law,” he “can and does” enforce the marriage ban and belongs back on the suit as a defendant. “The court wishes to reiterate,” Young concluded, “that it finds the Governor’s prior representations contradicting such authority to be, at a minimum, troubling.”
The decision is stayed pending the Seventh Circuit’s consideration of one of the same-sex marriage cases before it. Young had previously ruled in June that Indiana’s ban on same-sex marriage is unconstitutional.