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Ruling may hint at future of Indiana's marriage law

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Although the plaintiffs’ attorneys and the Indiana attorney general both emphasize a federal judge’s temporary order that the state recognize the marriage of one same-sex couple is short-term and limited, the ruling has given gay marriage proponents hope that Indiana’s marriage statute will ultimately be ruled unconstitutional.

Richard Young, chief judge for the U.S. District Court for the Southern District of Indiana, granted a temporary restraining order April 10 which instructs the state to recognize the Massachusetts marriage of Nikole Quasney and Amy Sandler.

castillo-paul.jpg Castillo

Lambda Legal filed a motion March 31 asking for emergency relief because Quasney is terminally ill with stage IV ovarian cancer and she wants to ensure Sandler and their two children will be acknowledged as her family and be eligible to receive survivor benefits.

The attorneys will have to return to court before May 8 to argue for a preliminary injunction, and the current order does not impact any of the other gay and lesbian couples fighting Indiana’s marriage ban. However, many see the ruling as an indication that Young thinks the proponents’ arguments have merit and will likely be successful.

“This is the first couple within the state whose marriage is recognized and certainly it really demonstrates there are harms” caused by Indiana’s ban on same-sex marriage, said Paul Castillo, Lambda Legal attorney. He noted this could be “a big first step” in deciding the ban is unconstitutional.

Quasney and Sandler are parties in Baskin, et al. v. Bogan, et al., 1:14-CV-00355, the Indiana same-sex marriage lawsuit that Lambda Legal filed in mid-March. This is one of five challenges to the marriage law in Indiana and the first to get a significant ruling.

The cases were all filed in the Southern District of Indiana and have been consolidated onto Young’s docket. All dispositive motions for summary judgment were due to be filed with the court April 21 and the state is expected to answer the five complaints by May 8.

Castillo and other attorneys quickly point out nothing is guaranteed. Young will not make a decision on the request to grant a preliminary injunction for Quasney and Sandler or enter any further judgments until he fully reviews the briefs and hears arguments.

Still, some say the temporary restraining order does open the door, and Young appears to be leaning, toward granting marriage equality.

“It makes me cautiously optimistic, but we take nothing for granted,” said Karen Celestino-Horseman, one of the attorneys working on the same-sex marriage lawsuit Lee, et al. v. Pence, et al., 1:14-CV-00404.

Also pushing on Young may be the growing momentum of marriage rulings nationwide in favor of same-sex couples and the weakness of the state’s arguments, said Steve Sanders, associate professor of law at Indiana University Maurer School of Law.

To date, 10 federal judges have found bans on same-sex marriage violate the U.S. Constitution. These are diverse judges who preside in different states – including those surrounding Indiana – and have been nominated by different political parties. Even though Young will make an independent decision, the analysis of the constitutional arguments on due process and equal protection grounds done by the other District Court judges could be persuasive.

sanders-steve.jpg Sanders

As for the Indiana attorney general’s arguments against same-sex marriage, Sanders said they have not worked in other states.

“The attorney general is not going to dream up a new argument for Indiana’s law that has not already been tried and rejected by other federal judges,” Sanders said.

Attorney General Greg Zoeller has not presented his arguments for upholding Indiana’s ban, but in amicus briefs he has recently written in support of marriage laws in other states. He argued the government has an interest in limiting marriage to opposite-sex couples because that fosters responsible procreation.

Sanders described that reasoning as laughable and silly. “The responsible procreation argument was dreamed up by social conservatives because it’s a kinder gentler way of saying we don’t think same-sex couples should marry,” he said.

bill groth Groth

In fact, he noted in Hollingsworth v. Perry, the dispute over California’s Proposition 8 banning same-sex marriage that was argued before the Supreme Court of the United States, the justices appeared to dismiss the procreation reasoning. It was presented during oral arguments but the bench did not ask any questions about that argument, largely ignoring it.

The attorney general has filed a motion to dismiss Love v. Pence, 4:14-CV-00015. The state asserts this lawsuit should be tossed because Gov. Mike Pence is the only named defendant and, since the governor does not perform marriages or issue marriage licenses, he cannot provide any relief.

Daniel Canon, one of the attorneys representing the plaintiffs in Love v. Pence, described the motion as a waste of time. The governor has executive power and he can order the county clerks to issue marriage licenses, Canon said. The buck stops with the governor.

If Young dismisses Love v. Pence, the decision will likely have little ramifications for the other four lawsuits since they do not all name the governor as a defendant, and those that do also list other public officials.

The most significant event in the challenges to Indiana’s ban on same-sex marriage so far remains the grant of the temporary restraining order. Given the emotional appeal of Quasney and Sandler for relief, attorneys were not surprised Young issued the order.

Castillo said Lambda Legal’s brief in support of the temporary restraining order was meant to show that the state’s narrow definition of marriage causes irreparable harm to the couple’s dignity. The harm extends beyond the tangible effect of not being able to list a same-sex spouse on the death certificate.

Attorney William Groth, a member of the legal team in Lee v. Pence, said Young’s ruling was encouraging and a small indication of how the court feels about the legal issues.

In Lee v. Pence, the plaintiffs, like Quasney and Sandler, were legally married in other states and are asking the court require Indiana recognize their unions. They share another key similarity with Quasney and Sandler in that they are all public safety first responders who, as Celestino-Horseman said, face injury and death everyday.

celestino-horseman-karen.jpg Celestino-Horseman

“Indiana made a promise (to these plaintiffs),” Celestino-Horseman said, “that if you make a commitment to serve and protect, we’ll promise to take care of you and your family, unless you are married to a person of the same-sex.”

The move to limit Lee v. Pence to push only for recognition of marriages rather than try to get the entire law overturned was partly a strategic decision in light of Indiana’s traditionally conservative slant, Groth said.

The decision to mount a challenge was made late in 2013, but he said his team held off filing a complaint until after the 2014 legislative session ended. Groth was surprised that five separate lawsuits were filed, but he said that is an indication of the strength of the legal claims being made by all the plaintiffs.

Whatever Young finally decides about Indiana’s marriage law, Groth noted the obvious, that the lawsuits will not end. The decision will be appealed to the 7th Circuit Court of Appeals.•

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  1. Ah yes... Echoes of 1963 as a ghostly George Wallace makes his stand at the Schoolhouse door. We now know about the stand of personal belief over service to all constituents at the Carter County Clerk door. The results are the same, bigotry unable to follow the directions of the courts and the courts win. Interesting to watch the personal belief take a back seat rather than resign from a perception of local power to make the statement.

  2. An oath of office, does it override the conscience? That is the defense of overall soldier who violates higher laws, isnt it? "I was just following orders" and "I swore an oath of loyalty to der Fuhrer" etc. So this is an interesting case of swearing a false oath and then knowing that it was wrong and doing the right thing. Maybe they should chop her head off too like the "king's good servant-- but God's first" like St Thomas More. ...... We wont hold our breath waiting for the aclu or other "civil liberterians" to come to her defense since they are all arrayed on the gay side, to a man or should I say to a man and womyn?

  3. Perhaps we should also convene a panel of independent anthropological experts to study the issues surrounding this little-known branch of human sacrifice?

  4. I'm going to court the beginning of Oct. 2015 to establish visitation and request my daughters visits while she is in jail. I raised my grandchild for the first two and half years. She was born out of wedlock and the father and his adopted mother wantwd her aborted, they went as far as sueing my daughter for abortion money back 5mo. After my grandchild was born. Now because of depression and drug abuse my daughter lost custody 2 and a half years ago. Everyting went wrong in court when i went for custody my lawyer was thrown out and a replacment could only stay 45 min. The judge would not allow a postponement. So the father won. Now he is aleinating me and my daughter. No matter the amount of time spent getting help for my daughter and her doing better he runs her in the ground to the point of suicide because he wants her to be in a relationship with him. It is a sick game of using my grandchild as a pawn to make my daughter suffer for not wanting to be with him. I became the intervener in the case when my daughter first got into trouble. Because of this they gave me her visitation. Im hoping to get it again there is questions of abuse on his part and I want to make sure my grandchild is doing alright. I really dont understand how the parents have rights to walk in and do whatever they want when the refuse to stand up and raise the child at first . Why should it take two and a half years to decide you want to raise your child.The father used me so he could finish college get a job and stop paying support by getting custody. Support he was paying my daughter that I never saw.

  5. Pence said when he ordered the investigation that Indiana residents should be troubled by the allegations after the video went viral. Planned Parenthood has asked the government s top health scientists at the National Institutes of Health to convene a panel of independent experts to study the issues surrounding the little-known branch of medicine.

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