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Challenges to Indiana’s same-sex marriage ban piling up in federal court

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Update: This story has been edited to add the fourth lawsuit filed Friday.

 

And then there were four.

The American Civil Liberties Union of Indiana Friday filed a lawsuit in federal court challenging the state’s ban on same-sex marriage, becoming the third such complaint lodged against Indiana in a week. Another suit challening the ban was also filed in federal court Friday.

The wave of lawsuits began March 7 when four couples in southern Indiana, represented by the legal team in Louisville who successfully challenged Kentucky’s marriage statute, filed in the U.S. District Court for the Southern District of Indiana. This was followed by the national organization Lambda Legal filing a complaint March 10 in the Southern District on behalf of three Indiana couples.

The ACLU filed its suit on behalf of 14 couples, including two children who have faced discrimination because Indiana does not permit or recognize same-sex marriage. Midori Fujii, whose wife of 11 years died after a two-year battle with ovarian cancer, is the lead plaintiff. Because their California marriage was not recognized in Indiana, Fujii was not allowed by the funeral home to make decisions for her wife’s funeral and had to pay more than $300,000 in state inheritance taxes on property her wife left.

“Marriage has long played a fundamental role in our society,” said ACLU of Indiana Legal Director Kenneth J. Falk. “By failing to allow or recognize marriages for same-sex couples in Indiana, the state is perpetuating a discriminatory practice that cannot be squared with the Constitution.”

The ACLU suit argues Indiana Code 31-11-1-1 violates the Due Process and Equal Protection clauses of the 14th Amendment. The suit seeks to stop the state from enforcing this law and to allow same-sex couples to wed in Indiana as well as recognize same-sex marriages that have been performed in other states.

Also Friday, Richard A. Mann P.C. in Indianapolis filed a lawsuit in federal court on behalf of Michelle and Shannon Bowling and Linda Bruner challening the state's Defense of Marriage Act. The Bowlings, who were married in Iowa, reside and work in Indianapolis, have been denied state recognition of their lawful marriage. Linda Bruner, who was lawfully married in Iowa is also seeking recognition of her marriage here as she is seeking to obtain a divorce from her wife and has had a divorce pending since January 2013.

The ACLU challenge, Midori Fujii, et al. v. Indiana Governor, et al., 1:14-CV-00404; Michelle Bowling, Shannon Bowling and Linda Bruner v. Michael Pence, et al., 1:14-CV-0405; and the case filed a week ago by the Louisville team, Love v. Pence, 4:14-CV-00015, name Gov. Mike Pence as the defendant.

However, the Lambda suit, Baskin v. Bogan, 1:14-CV-0355, names the clerks of Boone, Porter and Lake counties along with Indiana Attorney Greg Zoeller as defendants.

In response to the first two lawsuits, Zoeller has vowed to defend Indiana’s definition of marriage as between one man and one woman.

“When plaintiffs who disagree with an Indiana statute file a challenge in court, I have a duty as Indiana’s Attorney General to defend our state and the statute the Legislature passed to the best of my skill and ability – and will here, both now and on any appeal,” Zoeller said.

Indiana has not filed an answer to any of the suits filed, but Zoeller has submitted amicus briefs in support of marriage laws in other District courts. Indiana is the lead author in a multistate amicus brief filed in the 10th Circuit in the combined case of Kitchen v. Herbert (from Utah) and Bishop v. Smith (from Oklahoma).

The 10th Circuit panel is scheduled to hear arguments in the Utah appeal April 10. This will be the first appeal to a federal court’s ruling that same-sex marriage bans are unconstitutional and could become the first federal court of appeals decision on the topic since the Supreme Court of the United States ruled on United States v. Windsor.

Besides Kentucky, Utah, and Oklahoma, same-sex marriage prohibitions have been knocked down by the federal courts in Virginia, Ohio and Texas. Also, seven couples in Arizona, represented by Lambda Legal, filed suit March 13 in federal court, challenging that state’s marriage law.

The trio of lawsuits come just weeks after proponents of same-sex marriage suffered a setback when the marriage amendment to the state Constitution, HJR 3, failed to gain enough support among Indiana lawmakers to appear on the 2014 November ballot. Legislators altered the wording of HJR 3 to remove the ban on civil unions which essentially put the amendment process back to the beginning.

“Even though we have temporarily avoided a state constitutional amendment banning marriage for same-sex couples, we cannot stand by idly while the Constitution’s guarantees of fairness and equality are denied to so many loving couples,” said Jane Henegar, ACLU of Indiana executive director.

 
 
 

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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