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Same-sex marriage memo keeps Pence as defendant in lawsuit

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A federal judge ruled Tuesday that Indiana must recognize same-sex marriages performed in other states, but says the ruling doesn’t take effect until the 7th U.S. Circuit Court of Appeals rules on the issue.

Chief Judge Richard Young in the Southern District of Indiana held in Bowling, et al. v. Pence, et al., 1:14-CV-00405, that the state must recognize the marriage of Michelle and Shannon Bowling of Indianapolis, who were married in Polk County, Iowa, on Jan. 18, 2011. Shannon Bowling is employed by the Indiana Department of Correction, and the couple sued to seek state benefits for Michelle Bowling and her children from a previous relationship.

A third plaintiff, Linda Bruner of Greenfield, is seeking a divorce from her wife, whom she married in Sioux City, Iowa, on July 20, 2010. But a court in Indianapolis has said it has no authority to dissolve same-sex marriages, the ruling said. Young’s decision says she can seek the dissolution if the 7th Circuit upholds his ruling.

The judge reiterated his finding in the other same-sex marriage challenges by ruling Indiana’s marriage law violates the 14th Amendment’s equal protection clause. Bowling is the last same-sex marriage case on the District Court’s docket.

While Young'sruling that the state’s marriage statute is unconstitutional echoes his earlier rulings in the three cases now before the 7th Circuit, Young’s decision to allow Gov. Mike Pence to be included as a defendant is new.

In the three cases Young previously ruled on, he dismissed Pence as a defendant and threw out the first same-sex marriage case filed, Love v. Pence, because the governor was the sole defendant. At that time, the judge agreed with the state that the governor could not be a party to the challenge because he did not enforce the laws.

However, Young pointed out that since his June ruling in Baskin, et al.  v. Bogan, et al., Pence exercised authority he said he did not have when he issued a memo that directed executive branch agencies to function as though the marriage law had not been ruled unconstitutional. The governor sent the memo July 7, after the 7th Circuit had granted a stay in Baskin.  

“Additionally, the court, after witnessing the Governor do what he claimed he could not do, reverses course and finds him to be a proper party to such lawsuits,” Young wrote. “The court wishes to reiterate that it finds the Governor’s prior representations contradicting such authority to be, at a minimum, troubling.”

The 7th Circuit is scheduled to hear oral arguments next week on the state’s appeal of the June 25 ruling by Young throwing out Indiana’s same-sex marriage ban. Hundreds of same-sex couples were married legally in Indiana after the ruling and before the 7th Circuit issued a stay.

“The phenomenon that the court previously observed has continued to grow. Since issuing its prior orders, two circuit courts have found bans similar to Indiana’s to be unconstitutional. This court reaffirms that conclusion,” Young wrote in his ruling.

The Office of the Indiana Attorney General had sought a stay in the Bowling case and plans to file an appeal, spokesman Bryan Corbin said.

“As the lawyer for the state government, the Indiana Attorney General’s Office has a duty to defend Indiana’s statute – passed by the people’s elected representatives in the Legislature – from lawsuits that plaintiffs’ lawyers file, both in the trial court and on appeal.”

The attorney general’s office did not address Young’s ruling that Pence could be a named defendant.
 

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  1. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  3. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  4. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  5. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

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