By Amanda Blystone, Broyles Kight & Ricafort PC
In the past few months, five separate cases were filed and have been litigated in the United States District Court for the Southern District of Indiana regarding same-sex marriage. Love v. Pence was filed on March 7, 2014, on behalf of four couples seeking recognition of their marriages which were legally solemnized in other states. Governor Pence was named as the sole defendant in the case.
On March 13, 2014, Baskin v. Bogan was filed on behalf of three same-sex couples seeking to marry who were denied marriage licenses. This complaint was amended on March 31, 2014, to seek recognition of a couple's marriage which was legally solemnized in another state. The named defendants in the complaint included the clerks for Boone, Porter, Lake, and Hamilton counties, as well as the Commissioner of Indiana's Department of Health and Attorney General Zoeller.
On March 14, 2014, Lee v. Pence, Fujii v. Pence, and Bowling v. Pence were filed. The plaintiffs in Lee v. Pence are four couples seeking recognition of their lawfully solemnized marriages. In each of these couples, one spouse is (or was) a first responder who was denied the ability to designate her spouse as beneficiary of her state pension. The named defendants included Governor Pence, the members of the Board of Trustees of the Indiana Public Retirement System, and the Executive Director of the Indiana Public Retirement System.
The plaintiffs in Fujii v. Pence include couples seeking to marry in Indiana or couples whose marriages were solemnized in other states seeking recognition in Indiana. The named defendants included Governor Pence, the Commissioner of the Indiana State Department of health, and the clerks for Allen and Hamilton counties. The plaintiffs amended their complaint to add the Commissioner of the Department of Revenue.
The plaintiffs in Bowling v. Pence include a couple whose marriage was legally solemnized in another state as well as a woman seeking recognition of her same-sex marriage, which was legally solemnized in another state, in order to obtain a dissolution of her marriage. The defendants are Governor Pence, Attorney General Zoeller, the Commissioner of the Indiana Department of Revenue, and the Executive Director of the Indiana Department of State Personnel.
A motion for a temporary restraining order was filed on behalf of the couple seeking recognition of their marriage in Baskin v. Bogan due to one of the spouses' terminal illness. The plaintiffs argued that the dignitary harms suffered, as well as the fact that if the plaintiff were to die prior to the conclusion of the case she will not be listed as married to her spouse on her death certificate, necessitated such relief. The district court granted the temporary restraining order and later granted a preliminary injunction as to this couple finding that they had some likelihood of success on the merits, there is no adequate remedy at law, and that the couple would suffer irreparable harm if the order were denied.
On June 25, 2014, the district court entered orders in Baskin, Fujii, and Lee. The court granted the plaintiffs’ motions for summary judgment in all three cases, except as to the Governor in Fujii and Lee. The court found that the Governor was not a proper party in those cases, holding that the injuries alleged were not fairly traceable to him and cannot be redressed by him. In an order in all three cases, the court held that Indiana’s statute banning same-sex marriages and prohibiting the recognition of such marriages lawfully entered in other states was unconstitutional as it violated the Due Process and Equal Protection Clauses of the United States Constitution. The court held that the fundamental right to marry includes the right to marry the person of one's choosing and, therefore, the statute is subject to strict scrutiny. The court went on to find that the defendants' proffered justifications of maintaining the traditional marriage definition and encouraging responsible procreation did not meet this burden. Furthermore, in applying rational basis analysis to the plaintiffs' equal protection claim, the court held that such rationales failed to provide even a rational basis for the laws.
The defendants in Baskin, Fujii, and Lee filed for a stay in the federal district court then filed for an emergency stay in the Seventh Circuit Court on June 27, 2014. The Seventh Circuit granted the stay that same day. On June 30, 2014, the plaintiffs in Baskin filed an Emergency Motion to Lift the Stay with respect to two of their plaintiffs (the spouse with a terminal illness and her wife). The Seventh Circuit granted their request and lifted the stay as to those particular plaintiffs. The plaintiffs in Lee also filed a request to lift the stay as to the plaintiffs in their case; however, the Seventh Circuit denied the request.
The defendants in Baskin, Fujii, and Lee also filed an appeal in the Seventh Circuit. The Seventh Circuit entered an expedited briefing schedule, making the Appellants' briefs due July 15, 2014, the Appellees' briefs due July 29, 2014, and the Appellants' reply briefs due August 5, 2014. Oral arguments have been set in the Seventh Circuit for August 13, 2014. These cases have been consolidated with the appeal from the Western District of Wisconsin, Wolf v. Walker. The defendants in both the Indiana and Wisconsin cases requested an en banc hearing.
Bowling v. Pence remains pending in the federal district court. In that case, the defendants' brief is due on July 24, 2014. The defendants also have filed an Anticipatory Motion for Stay of Judgment Pending Appeal.
In addition to the above cases being litigated in federal court, on July 14, 2014, the case of Bruner v. Ross (case number 49A05-1407-DR-316), was appealed in the Court of Appeals of the State of Indiana. The appeal asks the appellate court to reverse its previous decision supporting the Indiana law banning same-sex marriages and prohibiting recognition of legally solemnized same-sex marriages from other states. The appeal asks the appellate court to find Indiana's law unconstitutional.
Updated information about the status of the above-described federal casesmay be found at http://www.pacer.gov/ for those with PACER login access. Updated information about the status of Bruner v. Ross may be found at https://courtapps.in.gov/docket. The independent website, http://www.freedomtomarry.org, typically provides updated information about the status of cases like these nationwide.
Also on June 25, 2014, the court dismissed Love v. Pence
, similarly finding that the governor was not a proper party.