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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. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. 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.

  4. 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.

  5. 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)

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