7th Circuit to hear Indiana same-sex marriage challenge

Back to TopCommentsE-mailPrintBookmark and Share

Shortly after a federal judge ordered Indiana to recognize the marriage of one same-sex couple, the Office of the Indiana Attorney General continued its defense of “traditional marriage” by filing a notice of appeal with the 7th Circuit Court of Appeals. By doing so, it added to the list of appellate courts hearing challenges to state marriage laws.

Attorney General Greg Zoeller is appealing a preliminary injunction issued by Chief Judge Richard Young of the U.S. District Court, Southern District of Indiana that prohibits the state from enforcing its ban on same-sex marriage against Munster couple Nikole Quasney and Amy Sandler.

In addition, Zoeller has filed a motion to stay with the District Court to halt enforcement of the preliminary injunction until the 7th Circuit renders an opinion on the matter.

castillo-paul.jpg Castillo

The attorney general’s office expressed “sincere sympathy” for the plaintiffs but maintained the state’s marriage law does not allow for hardship exceptions.

“When plaintiffs’ lawyers sue the state and challenge its laws, the state is entitled to a defense in court,” said Bryan Corbin, spokesman for the attorney general’s office. “The Indiana Legislature, not the attorney general’s office, determines the marriage law in Indiana. As the state’s lawyer, the attorney general’s office has a legal duty to defend the laws of the state from lawsuits in the trial court and in any appeal, and the appellate courts ultimately will decide the case.”

Quasney and Sandler are among the plaintiffs in Baskin, et al. v. Bogan, et al., 1:14-CV-00355, the lawsuit filed by Lambda Legal which asserts Indiana’s ban on allowing same-sex couples in the state to marry and its ban on recognizing same-sex marriages legally performed in other states are unconstitutional.

Lambda Legal filed an emergency request on their behalf because Quasney is terminally ill with Stage IV ovarian cancer. Young initially issued a temporary restraining order then followed with the preliminary injunction, which will ensure that Sandler will be listed as the surviving spouse on Quasney’s death certificate if she dies in Indiana.

Young’s decision to issue the preliminary injunction did not surprise many. Just as he noted when he issued the temporary restraining order, Young said the plaintiffs have shown a “reasonable likelihood of success” based on the merits of their case.

Paul Castillo, the attorney for Lambda Legal who argued on behalf of Quasney and Sandler, called Young’s ruling a victory but pointed out the judge has not ruled on the “ultimate question” of whether Indiana’s marriage statute violates the equal protection and due process clauses of the U.S. Constitution.

States’ rights

Indiana does not appear to be slowing in its defense of the state’s marriage statute. Along with its appeal and the motion to stay the Quasney and Sandler decision, the state appeared before Young on May 2 to argue for summary judgment in Baskin, et al. v. Bogan, et al.

sanders-steve.jpg Sanders

Indiana University Maurer School of Law Professor Steve Sanders said the Indiana attorney general’s office is taking this aggressive posture because it is “more concerned, at this point, with scoring points with social conservatives than about the dignity of a dying person.”

The AG’s office said the preliminary injunction would have been appealed by whichever party lost the decision. The state appealed to the 7th Circuit to keep its legal options open and to allow the process to continue in court so the legal questions can be resolved conclusively.

Along with its continued push in the Baskin case, Zoeller has filed a motion for summary judgment in the same-sex marriage challenge brought by the ACLU of Indiana, Fujii, et al. v. Pence, et al., 1:14-CV-00404.

Indiana argued, in part, that the Supreme Court of the United States decision in United States v. Windsor – which triggered the avalanche of same-sex marriage lawsuits across the country – actually preserved the states’ ability to define marriage as they see fit. The decision in Windsor held that Section 3 of the federal Defense of Marriage Act violated the Fifth Amendment because it deviated from the tradition of recognizing and accepting state definitions of marriage.

“First there is no doubt that the Constitution gives its blessing to New York to recognize out-of-jurisdiction same-sex marriages,” Zoeller wrote in the brief supporting the motion for summary judgment. “… It is a considerable leap from this conclusion, however, to read Windsor, which struck down Section 3 of DOMA for discrimination against ‘basic personal relations the State has found it proper to acknowledge and protect,’ to establish a singular vision of a fundamental right to marriage that must be respected by all States.”

The ACLU of Indiana dismissed that argument, maintaining SCOTUS prefaced the Windsor decision with a reference from Loving v. Virginia which held state laws regulating marriage cannot violate the Constitution.

“But the mere fact that the Court resolved the issue before it without unnecessarily invalidating numerous state statutes not before it does not mean that its rationale has no role to play in subsequent challenges to those statutes,” the ACLU asserted in its response.

Likewise, Castillo does not believe the states’ rights argument is convincing. He pointed out that Zoeller has maintained this line of reasoning in his amicus briefs and other amicus briefs filed across the country have made similar arguments, but they have all been rejected by every single court that has ruled on marriage laws.

Circuit courts

With Indiana’s filing, the 7th Circuit joins the 4th, 5th, 6th, 9th and 10th circuits in having appeals of same-sex marriage cases on its docket. The 4th and 10th circuits have heard oral arguments and recently, the 9th Circuit Court issued a stay preventing Idaho from performing gay marriages.

Sanders said a ruling from the 7th Circuit that upholds Young’s preliminary injunction is not certain, but the odds are in Lambda Legal’s favor. Namely because Young is a respected District judge, his decision can have a little more sway with the Circuit panel. Also, Young’s finding for Quasney and Sandler is not unique since federal judges in Ohio and Illinois have issued similar rulings regarding same-sex couples facing grave illnesses.

The 7th Circuit might have a hard time going counter to the wave created by District courts overturning marriage bans across the country, Sanders said.

Meanwhile, Young will continue to handle Baskin, et al. v. Bogan, et al. and the other four lawsuits challenging Indiana’s marriage statute. Castillo expects the judge will rule quickly on the state’s motion for a stay and that decision, too, will most likely be appealed to the 7th Circuit.•


Post a comment to this story

We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
You are legally responsible for what you post and your anonymity is not guaranteed.
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
Subscribe to Indiana Lawyer
  1. Especially I would like to see all the republican voting patriotic good ole boys to stop and understand that the wars they have been volunteering for all along (especially the past decade at least) have not been for God & Jesus etc no far from it unless you think George Washington's face on the US dollar is god (and we know many do). When I saw the movie about Chris Kyle, I thought wow how many Hoosiers are just like this guy, out there taking orders to do the nasty on the designated bad guys, sometimes bleeding and dying, sometimes just serving and coming home to defend a system that really just views them as reliable cannon fodder. Maybe if the Christians of the red states would stop volunteering for the imperial legions and begin collecting welfare instead of working their butts off, there would be a change in attitude from the haughty professorial overlords that tell us when democracy is allowed and when it isn't. To come home from guarding the borders of the sandbox just to hear if they want the government to protect this country's borders then they are racists and bigots. Well maybe the professorial overlords should gird their own loins for war and fight their own battles in the sandbox. We can see what kind of system this really is from lawsuits like this and we can understand who it really serves. NOT US.... I mean what are all you Hoosiers waving the flag for, the right of the president to start wars of aggression to benefit the Saudis, the right of gay marriage, the right for illegal immigrants to invade our country, and the right of the ACLU to sue over displays of Baby Jesus? The right of the 1 percenters to get richer, the right of zombie banks to use taxpayer money to stay out of bankruptcy? The right of Congress to start a pissing match that could end in WWIII in Ukraine? None of that crud benefits us. We should be like the Amish. You don't have to go far from this farcical lawsuit to find the wise ones, they're in the buggies in the streets not far away....

  2. Moreover, we all know that the well heeled ACLU has a litigation strategy of outspending their adversaries. And, with the help of the legal system well trained in secularism, on top of the genuinely and admittedly secular 1st amendment, they have the strategic high ground. Maybe Christians should begin like the Amish to withdraw their services from the state and the public and become themselves a "people who shall dwell alone" and foster their own kind and let the other individuals and money interests fight it out endlessly in court. I mean, if "the people" don't see how little the state serves their interests, putting Mammon first at nearly every turn, then maybe it is time they wake up and smell the coffee. Maybe all the displays of religiosity by American poohbahs on down the decades have been a mask of piety that concealed their own materialistic inclinations. I know a lot of patriotic Christians don't like that notion but I entertain it more and more all the time.

  3. If I were a judge (and I am not just a humble citizen) I would be inclined to make a finding that there was no real controversy and dismiss them. Do we allow a lawsuit every time someone's feelings are hurt now? It's preposterous. The 1st amendment has become a sword in the hands of those who actually want to suppress religious liberty according to their own backers' conception of how it will serve their own private interests. The state has a duty of impartiality to all citizens to spend its judicial resources wisely and flush these idiotic suits over Nativity Scenes down the toilet where they belong... however as Christians we should welcome them as they are the very sort of persecution that separates the sheep from the wolves.

  4. What about the single mothers trying to protect their children from mentally abusive grandparents who hide who they truly are behind mounds and years of medication and have mentally abused their own children to the point of one being in jail and the other was on drugs. What about trying to keep those children from being subjected to the same abuse they were as a child? I can understand in the instance about the parent losing their right and the grandparent having raised the child previously! But not all circumstances grant this being OKAY! some of us parents are trying to protect our children and yes it is our God given right to make those decisions for our children as adults!! This is not just black and white and I will fight every ounce of this to get denied

  5. Mr Smith the theory of Christian persecution in Indiana has been run by the Indiana Supreme Court and soundly rejected there is no such thing according to those who rule over us. it is a thought crime to think otherwise.