Judge grants request to force Indiana to recognize couple's same-sex marriage

EVANSVILLE — A federal judge's ruling Thursday did more than order Indiana to immediately recognize the out-of-state same-sex marriage of a Munster couple.

It joins the raft of legal decisions nationally pushing the issue closer to the steps of the U.S. Supreme Court.

U.S. District Judge Richard Young granted the emergency request to Amy Sandler and Niki Quasney, who argued for immediate recognition of their Massachusetts marriage via a temporary restraining order. Quasney was diagnosed in 2009 with ovarian cancer and is terminally ill.

Young's ruling came the same day a three-judge appellate panel in Denver heard arguments on whether they should uphold a ruling by a federal judge who threw out a same-sex marriage ban in Utah. The panel also will hear arguments on Oklahoma's ban.

Three other federal appellate panels will take up similar questions in the next few months, said Carl Tobias, a professor of constitutional law at the University of Richmond Law School in Virginia.

"I don't think they are all going to agree," he said, "and it's harder for the (Supreme)

Court to tolerate that."

Opponents of same-sex marriage in Indiana agreed.

"What's going to ultimately happen, the Supreme Court is going to have to decide this," said Micah Clark, executive director of the American Family Association of Indiana. "This is legal chaos."

Young's order lasts 28 days, and the judge is expected to hold a preliminary injunction hearing before it expires. It's unclear when Young will hear the full case.

The couple's case is among five before Young challenging the state's marriage ban. Thursday's order has no bearing on the marital status of the other couples in the other lawsuits nor on any other same-sex couples in Indiana.

Paul Castillo, an attorney from gay-rights legal organization Lambda Legal who argued on behalf of the couple, said the emergency request was about recognizing a family. The couple have said that they need their marriage to be recognized so they can access federal and state safety nets for surviving spouses and their children and so that Quasney's marital status on her death certificate will reflect their wedding last year.

"This is, indeed, a case where a woman is dying and needs immediate relief for her family," Castillo said. "We are here today so that a woman can die in dignity."

Arguing on behalf of the state, Solicitor General Tom Fisher said granting temporary restraining orders are not a matter of emotional equity but of legal rights. Under current Indiana law, he argued, the state's marriage statute does not allow for hardship exceptions, like the one in Sandler and Quasney's case.

Fisher said if law changes after Quasney dies, thus validating the couple's marriage, Indiana could amend her death certificate. But he said that request doesn't constitute immediate harm and wouldn't justify the emergency request for recognition.

Burden of proof

Young didn't buy that argument. In his ruling, the Bill Clinton-nominated judge said the couple met the burden to prove the potential of immediate harm. He added that a reasonable likelihood exists that the couple will win their full case challenging the state's same-sex marriage ban and the state's refusal to recognize such marriages conducted legally in other states.

Thursday's decision "is a step in the right direction," said Chris Paulsen, president of the board of Indiana Equality Action, a nonprofit group that works on behalf of the gay, lesbian, bisexual and transgender community. "I think this will open the doors to more decisions like this, and eventually it will lead to full recognition of marriage."

Clark said opponents of same-sex marriage will continue their fight even if they need to refocus their efforts elsewhere.

"We have been warning this is going to happen for years — that homosexual activists would continue to try to redefine marriage," Clark said.

The focus at the Statehouse next year, Clark said, will be getting a measure passed to eventually put a constitutional amendment banning gay marriage before voters. An effort failed earlier this year to get such a measure before voters. An amended version of the measure passed, so it could not go to voters this fall.

And as advocates make legal inroads, he said, it will be important to enact legislation that protects Hoosiers — from individuals to businesses to religious institutions — from being forced to participate in or support gay marriages they oppose on religious or moral grounds.

The U.S. Supreme Court on Monday declined to take up such a case involving a New Mexico wedding photographer who had refused to take pictures at a gay couple's wedding. The state's Supreme Court ruled that New Mexico's anti-discrimination law forbids for-profit businesses from turning down customers on the basis of sexual orientation.

Similar objections have been raised to gay weddings by bakeries in Colorado and Oregon and by a florist in Washington state.

Eight other states had asked the Supreme Court to take the New Mexico case so that lawmakers considering "conscience-based exceptions to public-accommodations and same-sex-marriage laws," such as those cited by Clark in Indiana, would have legal guidance.

The cases are among more than 60 federal lawsuits that have been filed nationwide since a U.S. Supreme Court decision gave full federal recognition to legally married gay couples last year.

Although Quasney's attorney, Castillo, referred to Thursday's Indiana case as an "extraordinary" one, the Munster couple are not the only people nationwide to receive such a distinction.

Twice in the past year, a federal judge in Ohio has issued rulings in favor of same-sex couples in cases involving terminal illness or death certificates.

But those cases, Tobias said, are the exception.

"Typically, they are much broader and not an emergency," said the law professor, who is tracking same-sex cases in federal courts across the U.S.

More force?

Tobias said the fact that all five federal lawsuits pending in Indiana have been consolidated under Young give more force to Thursday's ruling even though it is limited to one couple.

"It is an indication of what the judge may be thinking more broadly, a sense of where he may go if given the opportunity."

Clark said even if the Supreme Court does rule that same-sex couples can marry and enjoy all of the same benefits of opposite-sex couples, the debate will not be over.

"You might get to a legal tipping point," he said, "but I don't think you will get to a cultural tipping point."

The Associated Press contributed to this story. Call Star reporter Jill Disis at (317) 444-6137. Follow her on Twitter: @jdisis.