Indiana Gov. Mike Pence (R) did not want to be a defendant in a lawsuit challenging the state’s ban on same-sex marriage. His lawyers filed a motion in May asking that the litigation be dismissed because Pence was not the proper defendant. They argued that he did not have “any authority to enforce, or other role respecting” the ban.
It might seem a little odd, considering Pence has partly built his career on a platform of social conservatism. But maybe the continued 2016 speculation, and the prospect of a national campaign, caught up with him. Pence has become regarded as one of the possible dark horses as the GOP’s presidential bench still lacks a proper frontrunner.
Pennsylvania Gov. Tom Corbett (R) also asked to be dropped from gay-marriage litigation, but didn’t argue that he didn’t have the authority to enforce the ban as Pence did. He might have gotten the idea from former Virginia Gov. Bob McDonnell (R), who successfully made the same argument before he left office. Advocates who follow same-sex marriage ban challenges couldn’t name any other governors who petitioned to have his or her name removed from a lawsuit, underscoring how unusual of a move it was. Lawsuits have been filed in almost every state.
And now Pence has been called out, in a way, for his waffling. A federal judge said last week that Pence’s argument had been “a bold misrepresentation” of his role and that he was in fact the proper defendant for the lawsuit.
Last week, a federal judge in Indiana revisited whether Pence was a proper defendant for the suit. After initially siding with him, U.S. District Judge Richard Young changed his mind and had some rhetorical lashings for the governor.
Young had already ruled in June against the same-sex marriage ban in a separate lawsuit, but addressed Pence’s role last week in another challenge to the statute.
Young wrote that Pence’s office had issued in July a memo, which included a reference to another earlier memo, directing executive agencies on how they should enforce the gay-marriage ban. Pence’s office sent a memo ordering agencies to comply with Young’s decision in June striking down the same-sex marriage ban, and then sent a second memo ordering them to continue enforcing the ban after a federal appeals court put the decision on hold.
Pence “did what he claimed he could not do,” Young wrote last week. “In light of this bold misrepresentation, the court must now revisit the issue.”
Young then concluded that, because Pence had shown “he is willing and able to take affirmative action to enforce the statue,” he was the proper defendant for the lawsuit. He also reaffirmed his June decision that Indiana’s gay-marriage ban is unconstitutional.
“The court wishes to reiterate that it finds the Governor’s prior representations contradicting such authority to be, at a minimum, troubling,” Young wrote.
Pence was asked about Young’s ruling on Friday, the Associated Press reported, and continued his awkward dance on same-sex marriage.
“I support traditional marriage and will always hold that view, and I’ve long believed that issues of this nature are best decided by the people and not the courts,” he said, but added: “While my views are what they are, I want Hoosiers to know we’ll uphold the rule of law.”
The calculus seemed clear.
“Gov. Pence seems motivated by the political calculations of a potential 2016 candidate. He wants to avoid offending the social conservatives who hold the key to the Republican nomination, by insisting that he favors traditional marriage,” Fred Gedicks, a law professor at Brigham Young University, told TPM, “yet probably also sees the writing on the wall, and wants to avoid offending moderates who generally support same-sex marraige and who also hold the key to election if one is nominated. Not exactly a profile in courage.”
You can read Young’s order below.
