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1 same-sex marriage lawsuit remains in District Court

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One challenge to Indiana’s same-sex marriage law remains in federal court and could, again, open a window for gay and lesbian couples in the state to get married, an attorney representing the plaintiffs in the case said.

The lawsuit, Bowling, Bowling and Bruner v. Pence et al., 1:14-cv-0405, was not included with the three other cases that Richard Young, chief judge of the U.S. District Court for the Southern District of Indiana, consolidated in his June 25 ruling overturning Indiana’s ban on same-sex marriage.

Richard Mann, attorney for the plaintiffs, said the Bowling case was moving more slowly than the other lawsuits because Indiana Attorney General Greg Zoeller’s office requested two extensions to file briefs. The plaintiffs have filed a response but have also argued the attorney general’s motion for summary judgment was filed after the deadline so the court should not consider it.

Mann contends that if Young finds Indiana’s marriage law unconstitutional and does not immediately issue a stay, same-sex marriage would become legal again in the state. However, Mann noted none of his clients are asking to be married but, rather, to have their out-of-state marriages recognized by Indiana. Therefore, the judge could write a narrow ruling that would only address the issue of recognizing same-sex marriages performed in other states.

On July 14, the attorney general filed a request for a stay of any decision the federal court makes in the Bowling case. The state maintained such action is warranted because of the 7th Circuit Court of Appeals stayed the District Court’s ruling in the other three same-sex marriage lawsuits.

Robert Katz, professor at the Indiana University Robert H. McKinney School of Law, would be surprised if Young issues an order and does not immediately grant the stay, especially since the 7th Circuit stopped the enforcement of his previous same-sex marriage ruling.  

Young risks squandering his prestige and reputation if he does not stay his decision in Bowling, Katz said.  

“There’re only so many times you can make a great bold gesture,” Katz said. “He did it, and he did it in a big way.”     

Katz is also a member of the legal team on Lee et al. v. Pence et al., 1:14-cv-0406.

Like the other lawsuits filed this year against Indiana’s marriage law, the Bowling complaint argues the state’s ban on same-sex marriage violates the Due Process and Equal Protection clauses of the 14th Amendment.

The case then raises the following additional arguments that the ban violates:

•    the Establishment Clause of the First Amendment  (the primary purpose of the marriage statute is to further the religious beliefs of the state which fosters an excessive government entanglement in religion);
•    the Full Faith and Credit Clause of the U.S. Constitution (by not recognizing the plaintiff’s out-of-state marriage, Indiana law is causing uncertainty, unpredictability and non-uniformity which the Full Faith and Credit Clause protects against);
•    the right to travel which has been afforded constitutional protection (Indiana’s refusal to recognize a same-sex marriage performed in another state places an unreasonable burden on the couples who are then forced to decide to continue living in Indiana or relocate).

In their motion for summary judgment, the plaintiffs strongly asserted Gov. Mike Pence is a proper defendant. Young dismissed the first same-sex marriage lawsuit filed this year, Love et al. v. Pence, 4:14-cv-00015, agreeing with the state that the governor did not cause the injuries and has no ability to offer a resolution.

The Bowling parties claim the governor should be a defendant because he does have the power to redress the injuries. Specifically, Pence has the authority over two of the other defendants in the case – the Indiana revenue and state personnel departments – and can order them to recognize same-sex marriages performed in other jurisdictions.

Separately, Mann filed an appeal July 14 with the Indiana Court of Appeals on behalf of Linda Bruner, one of the plaintiffs in the federal suit. Bruner is seeking a divorce from her wife and had filed in state court but was denied.

In the Court of Appeals filing, Bruner v. Roberts, 49A05-1407-DR-316, Mann makes the argument that Indiana’s marriage law is unconstitutional.

 
 

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  1. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  2. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  3. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

  4. "...not those committed in the heat of an argument." If I ever see a man physically abusing a woman or a child and I'm close enough to intercede I will not ask him why he is abusing her/him. I will give him a split second to cease his attack and put his hands in the air while I call the police. If he continues, I will still call the police but to report, "Man down with a gunshot wound,"instead.

  5. And so the therapeutic state is weaonized. How soon until those with ideologies opposing the elite are disarmed in the name of mental health? If it can start anywhere it can start in the hoosiers' slavishly politically correct capital city.

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