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updated: 6/27/2014 5:25 PM

Indiana clerks confused about gay marriage ruling

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  • Adam Shoffner, right, shouts his joy after he married Daniel Tolliver on Thursday in Indianapolis. Also pictured is Marion County Clerk Beth White.

      Adam Shoffner, right, shouts his joy after he married Daniel Tolliver on Thursday in Indianapolis. Also pictured is Marion County Clerk Beth White.
    Associated Press

 
Associated Press

INDIANAPOLIS -- Some county clerks across Indiana weren't issuing marriage licenses to gay couples Friday, two days after a federal judge struck down the state's prohibition on same-sex unions.

Some were holding off, mostly because of the wording of the state's online application form, which is printed out and used by most clerks. The form posted at the state courts website uses the words "male" and "female" and "bride" and "groom," and some clerks were wary of altering that wording.

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Janet Chadwell, clerk of Decatur County in southeastern Indiana, said her county attorney advised her that changing the form would be perjury.

"If I change it, then I'm altering the state form," Chadwell said.

In Marion County, the home of Indianapolis, officials at the clerk's office chose to cross out "bride" and "groom" on the printed form and substitute "spouse" and "spouse."

"I believe my job is to comply with the law and I also believe strongly that this is the right thing to do," Marion County Clerk Beth White said.

White's office has issued nearly 500 marriage licenses since Wednesday, when U.S. District Judge Richard Young ruled that the state's ban on same-sex marriage violates the U.S. Constitution's equal-protection clause because it treats couples differently based on their sexual orientation. Officials say most of those licenses have gone to gay and lesbian couples.

Angie Nussmeyer, spokeswoman for the Marion County clerk's office, said officials conferred with attorneys before altering the form. The "male" and "female" wording can't be changed because it doesn't appear in the printout, so officials simply told same-sex couples to ignore that heading, pick a side and fill in their names in that field.

Jennifer Drobac, a professor at Indiana University's McKinney School of Law, didn't see any legal problems with what Marion County is doing, because it's a minor change that doesn't affect the function of the form.

"I think it would be considered an administrative change to reflect what's going on," Drobac said.

But some clerks seemed confused about where to turn for advice. On the day of the ruling, the state attorney general's office urged clerks to respect the court order. But when the online form wasn't changed, some clerks asked the Indiana Supreme Court Division of State Court Administration what to do, since the form appears on the state courts website.

Supreme Court spokeswoman Kathryn Dolan said the forms were posted in collaboration with the Indiana State Department of Health, which was faced with the dilemma. State courts officials told clerks to consult their county attorneys.

Officials at the health department were working to change the online form to comply with Young's order, spokesman Ken Severson said Friday.

"I don't have a time line on when that will be done," he said.

It could become a moot point. Indiana has asked Judge Young to halt the same sex marriages while the state appeals, but Young hadn't ruled as of Friday. The state has since asked the 7th Circuit Court of Appeals in Chicago to grant the halt the marriages.

It isn't clear what would happen to the gay marriages already performed if that happened.

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