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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. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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