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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. 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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