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1 same-sex marriage lawsuit remains in District Court

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One challenge to Indiana’s same-sex marriage law remains in federal court and could, again, open a window for gay and lesbian couples in the state to get married, an attorney representing the plaintiffs in the case said.

The lawsuit, Bowling, Bowling and Bruner v. Pence et al., 1:14-cv-0405, was not included with the three other cases that Richard Young, chief judge of the U.S. District Court for the Southern District of Indiana, consolidated in his June 25 ruling overturning Indiana’s ban on same-sex marriage.

Richard Mann, attorney for the plaintiffs, said the Bowling case was moving more slowly than the other lawsuits because Indiana Attorney General Greg Zoeller’s office requested two extensions to file briefs. The plaintiffs have filed a response but have also argued the attorney general’s motion for summary judgment was filed after the deadline so the court should not consider it.

Mann contends that if Young finds Indiana’s marriage law unconstitutional and does not immediately issue a stay, same-sex marriage would become legal again in the state. However, Mann noted none of his clients are asking to be married but, rather, to have their out-of-state marriages recognized by Indiana. Therefore, the judge could write a narrow ruling that would only address the issue of recognizing same-sex marriages performed in other states.

On July 14, the attorney general filed a request for a stay of any decision the federal court makes in the Bowling case. The state maintained such action is warranted because of the 7th Circuit Court of Appeals stayed the District Court’s ruling in the other three same-sex marriage lawsuits.

Robert Katz, professor at the Indiana University Robert H. McKinney School of Law, would be surprised if Young issues an order and does not immediately grant the stay, especially since the 7th Circuit stopped the enforcement of his previous same-sex marriage ruling.  

Young risks squandering his prestige and reputation if he does not stay his decision in Bowling, Katz said.  

“There’re only so many times you can make a great bold gesture,” Katz said. “He did it, and he did it in a big way.”     

Katz is also a member of the legal team on Lee et al. v. Pence et al., 1:14-cv-0406.

Like the other lawsuits filed this year against Indiana’s marriage law, the Bowling complaint argues the state’s ban on same-sex marriage violates the Due Process and Equal Protection clauses of the 14th Amendment.

The case then raises the following additional arguments that the ban violates:

•    the Establishment Clause of the First Amendment  (the primary purpose of the marriage statute is to further the religious beliefs of the state which fosters an excessive government entanglement in religion);
•    the Full Faith and Credit Clause of the U.S. Constitution (by not recognizing the plaintiff’s out-of-state marriage, Indiana law is causing uncertainty, unpredictability and non-uniformity which the Full Faith and Credit Clause protects against);
•    the right to travel which has been afforded constitutional protection (Indiana’s refusal to recognize a same-sex marriage performed in another state places an unreasonable burden on the couples who are then forced to decide to continue living in Indiana or relocate).

In their motion for summary judgment, the plaintiffs strongly asserted Gov. Mike Pence is a proper defendant. Young dismissed the first same-sex marriage lawsuit filed this year, Love et al. v. Pence, 4:14-cv-00015, agreeing with the state that the governor did not cause the injuries and has no ability to offer a resolution.

The Bowling parties claim the governor should be a defendant because he does have the power to redress the injuries. Specifically, Pence has the authority over two of the other defendants in the case – the Indiana revenue and state personnel departments – and can order them to recognize same-sex marriages performed in other jurisdictions.

Separately, Mann filed an appeal July 14 with the Indiana Court of Appeals on behalf of Linda Bruner, one of the plaintiffs in the federal suit. Bruner is seeking a divorce from her wife and had filed in state court but was denied.

In the Court of Appeals filing, Bruner v. Roberts, 49A05-1407-DR-316, Mann makes the argument that Indiana’s marriage law is unconstitutional.

 
 

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  1. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  2. 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!!!

  3. 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.

  4. 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.

  5. 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.

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