Although the plaintiffs’ attorneys and the Indiana attorney general both emphasize a federal judge’s temporary order that the state recognize the marriage of one same-sex couple is short-term and limited, the ruling has given gay marriage proponents hope that Indiana’s marriage statute will ultimately be ruled unconstitutional.
Richard Young, chief judge for the U.S. District Court for the Southern District of Indiana, granted a temporary restraining order April 10 which instructs the state to recognize the Massachusetts marriage of Nikole Quasney and Amy Sandler.
Lambda Legal filed a motion March 31 asking for emergency relief because Quasney is terminally ill with stage IV ovarian cancer and she wants to ensure Sandler and their two children will be acknowledged as her family and be eligible to receive survivor benefits.
The attorneys will have to return to court before May 8 to argue for a preliminary injunction, and the current order does not impact any of the other gay and lesbian couples fighting Indiana’s marriage ban. However, many see the ruling as an indication that Young thinks the proponents’ arguments have merit and will likely be successful.
“This is the first couple within the state whose marriage is recognized and certainly it really demonstrates there are harms” caused by Indiana’s ban on same-sex marriage, said Paul Castillo, Lambda Legal attorney. He noted this could be “a big first step” in deciding the ban is unconstitutional.
Quasney and Sandler are parties in Baskin, et al. v. Bogan, et al., 1:14-CV-00355, the Indiana same-sex marriage lawsuit that Lambda Legal filed in mid-March. This is one of five challenges to the marriage law in Indiana and the first to get a significant ruling.
The cases were all filed in the Southern District of Indiana and have been consolidated onto Young’s docket. All dispositive motions for summary judgment were due to be filed with the court April 21 and the state is expected to answer the five complaints by May 8.
Castillo and other attorneys quickly point out nothing is guaranteed. Young will not make a decision on the request to grant a preliminary injunction for Quasney and Sandler or enter any further judgments until he fully reviews the briefs and hears arguments.
Still, some say the temporary restraining order does open the door, and Young appears to be leaning, toward granting marriage equality.
“It makes me cautiously optimistic, but we take nothing for granted,” said Karen Celestino-Horseman, one of the attorneys working on the same-sex marriage lawsuit Lee, et al. v. Pence, et al., 1:14-CV-00404.
Also pushing on Young may be the growing momentum of marriage rulings nationwide in favor of same-sex couples and the weakness of the state’s arguments, said Steve Sanders, associate professor of law at Indiana University Maurer School of Law.
To date, 10 federal judges have found bans on same-sex marriage violate the U.S. Constitution. These are diverse judges who preside in different states – including those surrounding Indiana – and have been nominated by different political parties. Even though Young will make an independent decision, the analysis of the constitutional arguments on due process and equal protection grounds done by the other District Court judges could be persuasive.
As for the Indiana attorney general’s arguments against same-sex marriage, Sanders said they have not worked in other states.
“The attorney general is not going to dream up a new argument for Indiana’s law that has not already been tried and rejected by other federal judges,” Sanders said.
Attorney General Greg Zoeller has not presented his arguments for upholding Indiana’s ban, but in amicus briefs he has recently written in support of marriage laws in other states. He argued the government has an interest in limiting marriage to opposite-sex couples because that fosters responsible procreation.
Sanders described that reasoning as laughable and silly. “The responsible procreation argument was dreamed up by social conservatives because it’s a kinder gentler way of saying we don’t think same-sex couples should marry,” he said.
In fact, he noted in Hollingsworth v. Perry, the dispute over California’s Proposition 8 banning same-sex marriage that was argued before the Supreme Court of the United States, the justices appeared to dismiss the procreation reasoning. It was presented during oral arguments but the bench did not ask any questions about that argument, largely ignoring it.
The attorney general has filed a motion to dismiss Love v. Pence, 4:14-CV-00015. The state asserts this lawsuit should be tossed because Gov. Mike Pence is the only named defendant and, since the governor does not perform marriages or issue marriage licenses, he cannot provide any relief.
Daniel Canon, one of the attorneys representing the plaintiffs in Love v. Pence, described the motion as a waste of time. The governor has executive power and he can order the county clerks to issue marriage licenses, Canon said. The buck stops with the governor.
If Young dismisses Love v. Pence, the decision will likely have little ramifications for the other four lawsuits since they do not all name the governor as a defendant, and those that do also list other public officials.
The most significant event in the challenges to Indiana’s ban on same-sex marriage so far remains the grant of the temporary restraining order. Given the emotional appeal of Quasney and Sandler for relief, attorneys were not surprised Young issued the order.
Castillo said Lambda Legal’s brief in support of the temporary restraining order was meant to show that the state’s narrow definition of marriage causes irreparable harm to the couple’s dignity. The harm extends beyond the tangible effect of not being able to list a same-sex spouse on the death certificate.
Attorney William Groth, a member of the legal team in Lee v. Pence, said Young’s ruling was encouraging and a small indication of how the court feels about the legal issues.
In Lee v. Pence, the plaintiffs, like Quasney and Sandler, were legally married in other states and are asking the court require Indiana recognize their unions. They share another key similarity with Quasney and Sandler in that they are all public safety first responders who, as Celestino-Horseman said, face injury and death everyday.
“Indiana made a promise (to these plaintiffs),” Celestino-Horseman said, “that if you make a commitment to serve and protect, we’ll promise to take care of you and your family, unless you are married to a person of the same-sex.”
The move to limit Lee v. Pence to push only for recognition of marriages rather than try to get the entire law overturned was partly a strategic decision in light of Indiana’s traditionally conservative slant, Groth said.
The decision to mount a challenge was made late in 2013, but he said his team held off filing a complaint until after the 2014 legislative session ended. Groth was surprised that five separate lawsuits were filed, but he said that is an indication of the strength of the legal claims being made by all the plaintiffs.
Whatever Young finally decides about Indiana’s marriage law, Groth noted the obvious, that the lawsuits will not end. The decision will be appealed to the 7th Circuit Court of Appeals.•