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5 lawsuits keep marriage debate alive in Indiana

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During the debate in the Statehouse about House Joint Resolution 3, the proposed amendment to ban same-sex marriage in the Indiana Constitution, lawmakers were told repeatedly that whether or not the Legislature passed the constitutional provision there would be lawsuits.

The Indiana General Assembly neither approved nor rejected HJR 3 as introduced – the version approved by lawmakers in 2011 – opting instead to alter the language in the amendment which sent the ratification process back to the beginning. But still the lawsuits have come. Same-sex couples began filing their challenges to Indiana’s Defense of Marriage Act just as the 2014 legislative session drew to a close.

Kentucky attorney Laura Landenwich said whether the same-sex marriage ban is a statute or a constitutional amendment does not matter. The fact is, she said, the prohibition creates two classes of people, and there is not a rational basis to create two classes.

Landenwich is a member of the legal team that filed the first suit, Love v. Pence, 4:14-CV-15.

To date, five complaints have been filed, all in the U.S. District Court for the Southern District of Indiana, where they have been assigned to Chief Judge Richard Young. The couples seeking to have the law overturned come from across the state with some living in metropolitan areas and others residing in very small rural enclaves.
 

marraige-15col.jpg Melody Layne (left) and her wife Tara Betterman are part of the lawsuit filed by the ACLU of Indiana seeking to overturn Indiana’s ban on same-sex marriage. (Photo submitted)

All the lawsuits primarily challenge Indiana’s DOMA as violating the Due Process and Equal Protection clauses of the 14th Amendment of the U.S. Constitution. Similar suits making the same argument have been successful in knocking down same-sex marriage bans in a number of states including Kentucky, Texas, Utah and Virginia.

Ironically, the odds for success for same-sex couples in Indiana may be hampered by the lack of an amendment to the state Constitution. The states that have lost in federal court have had both statutes and constitutional amendments that defined marriage.

Indiana University Maurer School of Law professor Daniel Conkle explained the courts tend to view a constitutional amendment as the state immunizing the political process. Gays and lesbians who want to abolish a same-sex marriage ban will have a more difficult task removing language from the Constitution as compared to going through the legislative process to change a statute.

Provisions considered discriminatory that are encased in a state’s constitution seem to be more vulnerable in federal courts, Conkle said. The courts tend to find the challenged amendments violate the U.S. constitutional guarantees on the grounds that the political process has been skewered.

Conkle pointed out that while Indiana’s prohibition on same-sex marriage might have been in further jeopardy from the federal court if the amendment had been approved, the state law is still being fought with the same arguments. Proponents of same-sex marriage claim the ban violates the Constitution by discriminating against homosexuals.

By not being allowed to marry or not having their marriages performed in other states recognized, the couples bringing the lawsuits are barred from 

lawsuits-facts.jpg

the multitude of rights and privileges enjoyed by married heterosexuals, plaintiffs’ attorneys said.

Indiana has yet to file an answer to the complaints but Indiana Attorney General Greg Zoeller has vowed to defend the state’s marriage law.

“The mere fact that plaintiffs challenge an Indiana statute does not mean the Legislature did anything wrong when it adopted a statute years before,” Zoeller said in a statement. “Plaintiffs are exercising their right to assert their federal claims in court, just as my office is doing its duty to defend our state’s duly-enacted statutes and defend the Legislature’s authority.”

Religious beliefs

April 10 is scheduled to be the first time an overturned marriage ban goes before a federal appellate court post-Windsor, in which the Supreme Court of the United States struck down a portion of the federal Defense of Marriage Act as unconstitutional for violating the 14th Amendment.

The 10th Circuit Court of Appeals will hear arguments in Kitchen, et al. v. Herbert, et al., 13-4178, the case that overturned Utah’s prohibition on same-sex marriage.

A week later on April 17, the same court will hear Bishop, et al. v. Smith, et al., 14-5003, the successful suit against Oklahoma’s marriage law.

Indiana was the lead author of an amicus brief filed by 10 states in the 10th Circuit, supporting state laws which define marriage as between one man and one woman. The states contend procreation gives them a rational interest in “traditional marriage.” Only opposite-sex couples can procreate naturally and heterosexual marriage is the way states can ensure the parents remain together to care for and raise their children.

Both Landenwich and Richard Mann, an Indianapolis attorney representing same-sex couples in Bowling, Bowling and Bruner v. Pence, et al., 1:14-CV-0405, scoffed at that argument.

“It’s a farce,” said Landenwich, attorney at Clay Daniel Walton & Adams PLC. “If procreation was the purpose of marriage then procreation would be a requirement.”

The procreation argument is a classic defense that has been upheld by Indiana courts. In 2005, the ACLU of Indiana filed a lawsuit on behalf of same-sex couples, claiming the state’s marriage law violated the Indiana Constitution. The trial court dismissed the challenge, and the Indiana Court of Appeals affirmed in Morrison v. Sadler, 821 N.E.2d 15, 35 (Ind. Ct. App. 2005).

COA Judge Michael Barnes wrote the majority opinion which held that the state’s interest in supporting opposite-sex marriage is to encourage heterosexual couples to “procreate responsibly.”

The underlying reason that flows through all the arguments defending heterosexual marriage is religion, Landenwich and Mann said. Bans on same-sex marriage are based on the religious and moral code established by Christian beliefs. They contend the Establishment Clause prohibits government from choosing one set of religious values over another.

However, Conkle countered the mere invocation of Christianity is not enough to toss the marriage ban. Legislatures can be animated by their religious values when making decisions and courts have underscored that by finding religious reasons alone do not render a statute or amendment unconstitutional.

If the courts were to overturn provisions solely because they were religiously motivated, Conkle said that would be “quite troubling.” Namely because, as the marriage debate has shown, religious beliefs can underpin liberal and conservative positions so, he said, the reasons for finding something constitutionally justifiable should extend beyond church-inspired values.

Quickly changing

Kenneth Falk, ACLU of Indiana legal director, argued Morrison before the Court of Appeals and, nine years later, is the lead attorney in the same-sex marriage suit, Fujii, et al. v. Pence, et al., 1:14-CV-404. He will be trying Fujii in a markedly different atmosphere where more of society is accepting of homosexual marriage.

“It’s amazing to see how quickly things have changed, and it’s amazing to see so many young people, regardless of political affiliation, who just don’t understand why this is a big deal at all,” he said. “It’s heartening.”

Falk expects the trend to continue. Just as people now question why states in the past banned interracial marriages, future generations will wonder why there was contention over same-sex marriage.

The pace of change has not escaped Zoeller. He believes the challenges already in the federal appeals courts will likely reach the Supreme Court of the United States well ahead of Indiana’s cases. Still, he said he will defend Indiana’s law.

“This is not personal advocacy on my part or that of the lawyers who represent the state,” Zoeller said. “Indiana courts previously have upheld Indiana’s marriage law, and the U.S. Supreme Court has previously permitted states to license marriage as between one man and one woman. My office will continue to defend the state’s authority to set the licensing for marriage until and unless the U.S. Supreme Court rules otherwise.”

To Falk, change in favor of same-sex marriage is inevitable. The decisions by the federal courts reflect the mainstream thought and if the courts do not uphold same-sex marriage, eventually legislatures will as more people with accepting attitudes get elected to public office, he said.•

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  1. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  2. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  3. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  4. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  5. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

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