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Judge says no to Love but yes to marriage

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Three-and-a-half months were all the time needed to get Indiana’s ban on same-sex marriage overturned.

Five lawsuits challenging the state marriage law were filed after the 2014 legislative session ended, the first dated March 7. On June 25, U.S. Judge Richard Young issued a ruling agreeing with plaintiffs that Indiana’s marriage law is unconstitutional.
 

sanders-steve.jpg Sanders

“It’s not exactly ho hum, but it is part of a larger pattern,” said Steve Sanders, professor at the Indiana University Maurer School of Law. He noted federal courts have struck down similar laws in other states.

Young, chief judge of the U.S. District Court for the Southern District of Indiana, granted summary judgment in part for the plaintiffs in Lee, et al. v. Pence, et al., 1:14-CV-00406; Fujii, et al. v. Pence, et al., 1:14-CV-00404; and Baskin, et al. v. Bogan, et al., 1:14-CV-0405. He found – as federal judges across the country have found – that Indiana’s law prohibiting same-sex couples from marrying violated the due process and equal protection clauses of the 14th Amendment.

In his ruling, Young acknowledged his decision was not the first.

“This court has never witnessed a phenomenon throughout the federal court system as is presented with this issue,” he wrote. “In less than a year, every federal district court to consider the issue has reached the same conclusion in thoughtful and thorough opinions – laws prohibiting the celebration and recognition of same-sex marriages are unconstitutional.”


richard young Young

Within hours of Young’s ruling, the Indiana attorney general’s office filed an emergency motion for stay pending appeal in U.S. District Court. However, when Young did not issue a ruling immediately, the state turned to the 7th Circuit Court of Appeals late in the day June 27.

Two hours later, the 7th Circuit granted the stay. The AG’s office borrowed a phrase from the same-sex plaintiffs by telling the Circuit Court that Young’s order threatened “irreparable harm” to the defendants because it alters the meaning of marriage in Indiana and it creates confusion.

Civic and religious

Young foreshadowed his historic decision when he ordered the state to recognize the same-sex marriage of Indiana residents Niki Quasney and Amy Sandler. The couple is part of the Baskin lawsuit, but they filed for emergency relief because Quasney is in the final stages of her battle with cancer.

Once that restraining order was issued, Sanders said there was no reason to believe that Young would reverse his thinking. Young was unlikely to come up with a reason to uphold Indiana’s marriage statute that other federal judges had not put forth in their respective marriage rulings.

Young concluded that, “In time, Americans will look at the marriage of couples such as Plaintiffs, and refer to it simply as marriage – not a same-sex marriage. These couples, when gender and sexual orientation are taken away, are in all respects like the family down the street.”

Robert Katz, professor at Indiana University Robert H. McKinney School of Law, would have liked the decision to have made the distinction between civil marriage and religious marriage. He worries the decision might be interpreted as saying it is wrong for people to be opposed to marriage between same-sex couples in their religious life.

Katz is a member of the legal team representing the plaintiffs in Lee, et al. v. Pence, et al.

He believes many religious conservatives will continue to reject same-sex relationships.

Opponents of same-sex marriage have a civic duty, Katz continued, to explain their views in terms that can be understood by people who do not share their religious beliefs. And proponents have to recognize that “reasonable, kind and good Americans” can think same-sex relationships are morally wrong.

“To move forward, both sides must concede a difference between civil or state-sanctioned marriage and religious marriage,” Katz said.

Dismissal

As part of his ruling, Young dismissed the first marriage lawsuit filed, Love, et al. v. Pence, 4:14-CV-00015. Gov. Mike Pence was the only named defendant in the Love case.

The judge agreed with the attorney general that Pence was not the proper defendant. As governor, he neither issues marriage licenses nor performs any official function regarding marriage so the plaintiffs’ injuries were not caused by the governor and cannot be redressed by him.

Landenwich, attorney on the legal team representing the plaintiffs in Love, said Young’s analysis of the governor’s function was problematic for future constitutional questions.

She questioned who is in charge of the enforcement of state laws if not the governor. The ruling, she said, raises the larger issue of who is the proper defendant when there is challenge to the state statutes or constitution. Future plaintiffs may not know who to sue.

On June 30, Lambda Legal, the national gay rights organization that filed Baskin, asked the 7th Circuit for an emergency motion that would require Indiana to continue recognizing the marriage of Niki Quasney and Amy Sandler. Young had granted relief in a separate ruling that barred the state from enforcing its marriage laws to this couple specifically since Quasney is terminally ill.

Also, plaintiffs’ attorneys and the state are disputing the scope of the 7th Circuit’s stay. Both Lambda Legal and the American Civil Liberties Union of Indiana contend the same-sex marriages performed in the window between Young’s ruling and the Circuit Court’s stay are valid. The Indiana attorney general’s office said the status of the marriages is unclear and possibly something a court will need to determine.

Paul Castillo, attorney at Lambda Legal, said the validity question was answered after Utah’s ban on same-sex marriage was struck down in December 2013. After a stay was entered, the U.S. District Court for the District of Utah ruled in a separate case that vows exchanged during the window in the beehive state were valid.

Utah has filed a motion to stay.

Even while in legal limbo at the state level, Indiana same-sex couples who were married after Young’s decision may get recognition from the federal government. Castillo pointed out when a marriage law has been overturned in other states, the federal government has considered those marriages as valid even while a stay is in place.

Shift

Katz expects the debate over same-sex marriage will make a shift from the question of whether gays and lesbians can marry to whether individuals who are opposed have to facilitate the marriage.


katz-robert-mug Katz

The issue bubbled up in New Mexico in 2007 when a photographer, citing her religious beliefs, refused to take pictures of a same-sex ceremony. Since then, businesses in Colorado, New Jersey, Oregon, and Washington state have all objected to providing services for gay weddings.

Earlier this year the Arizona Legislature passed a bill that would have allowed business owners to refuse service to individuals for religious reasons. Arizona Gov. Jan Brewer vetoed the measure.

Katz said the business owners who are refusing to serve same-sex couples are not preventing the marriages but are clear that they do not want to do anything to help facilitate the union.

“It’s going to be ugly,” Katz said of the shift. “It’s going to be uglier” than the fight for same-sex marriage.•

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  1. 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)

  2. "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.

  3. 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.

  4. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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