During the debate in the Statehouse about House Joint Resolution 3, the proposed amendment to ban same-sex marriage in the Indiana Constitution, lawmakers were told repeatedly that whether or not the Legislature passed the constitutional provision there would be lawsuits.
The Indiana General Assembly neither approved nor rejected HJR 3 as introduced – the version approved by lawmakers in 2011 – opting instead to alter the language in the amendment which sent the ratification process back to the beginning. But still the lawsuits have come. Same-sex couples began filing their challenges to Indiana’s Defense of Marriage Act just as the 2014 legislative session drew to a close.
Kentucky attorney Laura Landenwich said whether the same-sex marriage ban is a statute or a constitutional amendment does not matter. The fact is, she said, the prohibition creates two classes of people, and there is not a rational basis to create two classes.
Landenwich is a member of the legal team that filed the first suit, Love v. Pence, 4:14-CV-15.
To date, five complaints have been filed, all in the U.S. District Court for the Southern District of Indiana, where they have been assigned to Chief Judge Richard Young. The couples seeking to have the law overturned come from across the state with some living in metropolitan areas and others residing in very small rural enclaves.
All the lawsuits primarily challenge Indiana’s DOMA as violating the Due Process and Equal Protection clauses of the 14th Amendment of the U.S. Constitution. Similar suits making the same argument have been successful in knocking down same-sex marriage bans in a number of states including Kentucky, Texas, Utah and Virginia.
Ironically, the odds for success for same-sex couples in Indiana may be hampered by the lack of an amendment to the state Constitution. The states that have lost in federal court have had both statutes and constitutional amendments that defined marriage.
Indiana University Maurer School of Law professor Daniel Conkle explained the courts tend to view a constitutional amendment as the state immunizing the political process. Gays and lesbians who want to abolish a same-sex marriage ban will have a more difficult task removing language from the Constitution as compared to going through the legislative process to change a statute.
Provisions considered discriminatory that are encased in a state’s constitution seem to be more vulnerable in federal courts, Conkle said. The courts tend to find the challenged amendments violate the U.S. constitutional guarantees on the grounds that the political process has been skewered.
Conkle pointed out that while Indiana’s prohibition on same-sex marriage might have been in further jeopardy from the federal court if the amendment had been approved, the state law is still being fought with the same arguments. Proponents of same-sex marriage claim the ban violates the Constitution by discriminating against homosexuals.
By not being allowed to marry or not having their marriages performed in other states recognized, the couples bringing the lawsuits are barred from
the multitude of rights and privileges enjoyed by married heterosexuals, plaintiffs’ attorneys said.
Indiana has yet to file an answer to the complaints but Indiana Attorney General Greg Zoeller has vowed to defend the state’s marriage law.
“The mere fact that plaintiffs challenge an Indiana statute does not mean the Legislature did anything wrong when it adopted a statute years before,” Zoeller said in a statement. “Plaintiffs are exercising their right to assert their federal claims in court, just as my office is doing its duty to defend our state’s duly-enacted statutes and defend the Legislature’s authority.”
April 10 is scheduled to be the first time an overturned marriage ban goes before a federal appellate court post-Windsor, in which the Supreme Court of the United States struck down a portion of the federal Defense of Marriage Act as unconstitutional for violating the 14th Amendment.
The 10th Circuit Court of Appeals will hear arguments in Kitchen, et al. v. Herbert, et al., 13-4178, the case that overturned Utah’s prohibition on same-sex marriage.
A week later on April 17, the same court will hear Bishop, et al. v. Smith, et al., 14-5003, the successful suit against Oklahoma’s marriage law.
Indiana was the lead author of an amicus brief filed by 10 states in the 10th Circuit, supporting state laws which define marriage as between one man and one woman. The states contend procreation gives them a rational interest in “traditional marriage.” Only opposite-sex couples can procreate naturally and heterosexual marriage is the way states can ensure the parents remain together to care for and raise their children.
Both Landenwich and Richard Mann, an Indianapolis attorney representing same-sex couples in Bowling, Bowling and Bruner v. Pence, et al., 1:14-CV-0405, scoffed at that argument.
“It’s a farce,” said Landenwich, attorney at Clay Daniel Walton & Adams PLC. “If procreation was the purpose of marriage then procreation would be a requirement.”
The procreation argument is a classic defense that has been upheld by Indiana courts. In 2005, the ACLU of Indiana filed a lawsuit on behalf of same-sex couples, claiming the state’s marriage law violated the Indiana Constitution. The trial court dismissed the challenge, and the Indiana Court of Appeals affirmed in Morrison v. Sadler, 821 N.E.2d 15, 35 (Ind. Ct. App. 2005).
COA Judge Michael Barnes wrote the majority opinion which held that the state’s interest in supporting opposite-sex marriage is to encourage heterosexual couples to “procreate responsibly.”
The underlying reason that flows through all the arguments defending heterosexual marriage is religion, Landenwich and Mann said. Bans on same-sex marriage are based on the religious and moral code established by Christian beliefs. They contend the Establishment Clause prohibits government from choosing one set of religious values over another.
However, Conkle countered the mere invocation of Christianity is not enough to toss the marriage ban. Legislatures can be animated by their religious values when making decisions and courts have underscored that by finding religious reasons alone do not render a statute or amendment unconstitutional.
If the courts were to overturn provisions solely because they were religiously motivated, Conkle said that would be “quite troubling.” Namely because, as the marriage debate has shown, religious beliefs can underpin liberal and conservative positions so, he said, the reasons for finding something constitutionally justifiable should extend beyond church-inspired values.
Kenneth Falk, ACLU of Indiana legal director, argued Morrison before the Court of Appeals and, nine years later, is the lead attorney in the same-sex marriage suit, Fujii, et al. v. Pence, et al., 1:14-CV-404. He will be trying Fujii in a markedly different atmosphere where more of society is accepting of homosexual marriage.
“It’s amazing to see how quickly things have changed, and it’s amazing to see so many young people, regardless of political affiliation, who just don’t understand why this is a big deal at all,” he said. “It’s heartening.”
Falk expects the trend to continue. Just as people now question why states in the past banned interracial marriages, future generations will wonder why there was contention over same-sex marriage.
The pace of change has not escaped Zoeller. He believes the challenges already in the federal appeals courts will likely reach the Supreme Court of the United States well ahead of Indiana’s cases. Still, he said he will defend Indiana’s law.
“This is not personal advocacy on my part or that of the lawyers who represent the state,” Zoeller said. “Indiana courts previously have upheld Indiana’s marriage law, and the U.S. Supreme Court has previously permitted states to license marriage as between one man and one woman. My office will continue to defend the state’s authority to set the licensing for marriage until and unless the U.S. Supreme Court rules otherwise.”
To Falk, change in favor of same-sex marriage is inevitable. The decisions by the federal courts reflect the mainstream thought and if the courts do not uphold same-sex marriage, eventually legislatures will as more people with accepting attitudes get elected to public office, he said.•