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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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    ALL ANIMALS ARE EQUAL BUT SOME ANIMALS ARE MORE EQUAL THAN OTHERS
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    Attention subjects: "democracy" no longer a factor in the subject matter henceforth designated "gay rights." So ordered.

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  1. I like the concept. Seems like a good idea and really inexpensive to manage.

  2. I don't agree that this is an extreme case. There are more of these people than you realize - people that are vindictive and/or with psychological issues have clogged the system with baseless suits that are costly to the defendant and to taxpayers. Restricting repeat offenders from further abusing the system is not akin to restricting their freedon, but to protecting their victims, and the court system, from allowing them unfettered access. From the Supreme Court opinion "he has burdened the opposing party and the courts of this state at every level with massive, confusing, disorganized, defective, repetitive, and often meritless filings."

  3. So, if you cry wolf one too many times courts may "restrict" your ability to pursue legal action? Also, why is document production equated with wealth? Anyone can "produce probably tens of thousands of pages of filings" if they have a public library card. I understand this is an extreme case, but our Supreme Court really got this one wrong.

  4. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  5. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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