Judge restores part of Indiana gay marriage lawsuit he previously dismissed due to Pence memos



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INDIANAPOLIS — A federal judge has reinstated four same-sex couples' claim against Indiana Gov. Mike Pence over the state's refusal to recognize gay marriages performed out of state.

Judge Richard Young said in a ruling Tuesday that he had initially dismissed the couples' claim against Pence, but he reinstated part of the lawsuit because Pence had shown he had power to enforce the ban despite claims that he had no such control.

"The Governor is vested with the executive authority in Indiana and has exercised his authority to declare how state executive agencies should act," Young said in his eight-page ruling.

Young says Pence demonstrated his authority in a pair of memos sent from his office to executive agencies instructing them on what to do following a ruling that struck down the ban. A federal appeals court also overturned the ban, and Indiana has asked the U.S. Supreme Court to hear the case.

The lawsuit on which Young ruled Tuesday is a separate case.

State officials said they disagreed with Young's order.

"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, but that does not make him a proper party in every lawsuit against the State of Indiana," Pence spokeswoman Christy Denault said in an email to The Associated Press.

Young did not reinstate a part of the lawsuit that challenged the constitutionality of the ban's basic provision that only opposite-sex couples may marry in Indiana. Jennifer Drobac, a professor at Indiana University's McKinney School of Law who specializes in sexual orientation legal issues, said that part of the ban is enforced by county clerks, who were not named in the suit, while the part concerning out-of-state marriages is enforced by the state.

Hundreds of couples were married from June 25, when Young struck down the ban, to June 27, when the 7th U.S. Circuit Court of Appeals put the decision on hold. Pence's office initially told agencies to abide by Young's ruling. Then on July 7, he instructed executive branch agencies "to execute their functions as though the June 25 court order had not been issued."

Pence's decision, announced in memos from chief counsel Mark Ahearn, applies to state agencies that report to the governor's office and affects services controlled by those agencies, such as food stamps or the ability to file jointly for state taxes.

"It is clear that through these memoranda, the Governor is issuing instructions to state agencies regarding compliance with court orders," Tuesday's ruling said.

Spokesman Bryan Corbin said in a statement that Attorney General Greg Zoeller's office also disagreed with the ruling. Corbin said Tuesday's ruling does not require any change in policy by county clerks, who are not overseen by the governor.

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