Judge: Pence contradicted himself on gay marriage

A federal judge says Indiana Gov. Mike Pence contradicted himself on same-sex marriage, telling the court he had no power to enforce Indiana's gay marriage ban but then directing executive agencies about how to proceed after court rulings on the subject.

U.S. District Judge Richard Young ruled Tuesday that Indiana must recognize same-sex marriages performed in other states, but he put the order on hold as a federal appeals court is taking up his earlier decisions on the issue. The state appealed the latest ruling Wednesday.

Also in the Tuesday ruling, Young said that on June 26, a day after he struck down Indiana's ban, Pence ordered agencies to abide by that ruling. But when the 7th Circuit Court of Appeals stayed Young's order, the governor said that "executive branch agencies are to execute their functions as though the U.S. District Court order … had not been issued."

That contradicted Pence's repeated assertions that he did not have "any authority to enforce, or other role respecting," the state's ban on gay marriage, Young wrote, quoting a brief filed May 29 by Indiana Solicitor General Thomas Fisher in the latest case. Pence "did what he claimed he could not do by directing executive agencies on how to proceed in enforcing the law," Young wrote.

Young called Pence's actions a "bold misrepresentation" and said that he found them "to be, at a minimum, troubling."

Pence's decisions, announced in memoranda from chief counsel Mark Ahearn, applied only to state agencies that report to his governor's office and would affect state services controlled by those agencies, such as the ability to file jointly for state taxes.

"The memoranda issued by the Governor clearly contradict his prior representations to the court," Young wrote in Tuesday's ruling.

As a result, Young stripped Pence of the immunity from the lawsuit that he had previously been granted.

"By law a governor exercises authority over the executive branch of government. Governor Pence has a duty to uphold the laws of the state and will continue to do so while respecting the courts' rulings. That does not make the governor a proper party in every lawsuit against the State of Indiana," Pence spokeswoman Christy Denault said in a statement Wednesday.

Attorney general's office spokesman Bryan Corbin said in a statement that the agency believed the governor should not have been named as a defendant.

Young ruled Tuesday that Indiana must recognize the marriage of Michelle and Shannon Bowling of Indianapolis, who were married in Polk County, Iowa, on Jan. 18, 2011. Shannon Bowling is employed by the Indiana Department of Correction, and the couple sued to seek state benefits for Michelle Bowling and her children from a previous relationship.

Since the state personnel and revenue departments report to the governor, Pence "clearly does have something to do with it," said the couple's attorney, Richard A. Mann.

The 7th Circuit is scheduled to hear oral arguments next week on the state's appeal of Young's June 25 ruling throwing out Indiana's gay marriage ban. How long the stay in the Bowling case remains in effect depends on how the appeals court rules on that other case, the attorney general's office said.