One challenge to Indiana’s same-sex marriage law remains in federal court and could, again, open a window for gay and lesbian couples in the state to get married, an attorney representing the plaintiffs in the case said.
The lawsuit, Bowling, Bowling and Bruner v. Pence et al., 1:14-cv-0405, was not included with the three other cases that Richard Young, chief judge of the U.S. District Court for the Southern District of Indiana, consolidated in his June 25 ruling overturning Indiana’s ban on same-sex marriage.
Richard Mann, attorney for the plaintiffs, said the Bowling case was moving more slowly than the other lawsuits because Indiana Attorney General Greg Zoeller’s office requested two extensions to file briefs. The plaintiffs have filed a response but have also argued the attorney general’s motion for summary judgment was filed after the deadline so the court should not consider it.
Mann contends that if Young finds Indiana’s marriage law unconstitutional and does not immediately issue a stay, same-sex marriage would become legal again in the state. However, Mann noted none of his clients are asking to be married but, rather, to have their out-of-state marriages recognized by Indiana. Therefore, the judge could write a narrow ruling that would only address the issue of recognizing same-sex marriages performed in other states.
On July 14, the attorney general filed a request for a stay of any decision the federal court makes in the Bowling case. The state maintained such action is warranted because of the 7th Circuit Court of Appeals stayed the District Court’s ruling in the other three same-sex marriage lawsuits.
Robert Katz, professor at the Indiana University Robert H. McKinney School of Law, would be surprised if Young issues an order and does not immediately grant the stay, especially since the 7th Circuit stopped the enforcement of his previous same-sex marriage ruling.
Young risks squandering his prestige and reputation if he does not stay his decision in Bowling, Katz said.
“There’re only so many times you can make a great bold gesture,” Katz said. “He did it, and he did it in a big way.”
Katz is also a member of the legal team on Lee et al. v. Pence et al., 1:14-cv-0406.
Like the other lawsuits filed this year against Indiana’s marriage law, the Bowling complaint argues the state’s ban on same-sex marriage violates the Due Process and Equal Protection clauses of the 14th Amendment.
The case then raises the following additional arguments that the ban violates:
• the Establishment Clause of the First Amendment (the primary purpose of the marriage statute is to further the religious beliefs of the state which fosters an excessive government entanglement in religion);
• the Full Faith and Credit Clause of the U.S. Constitution (by not recognizing the plaintiff’s out-of-state marriage, Indiana law is causing uncertainty, unpredictability and non-uniformity which the Full Faith and Credit Clause protects against);
• the right to travel which has been afforded constitutional protection (Indiana’s refusal to recognize a same-sex marriage performed in another state places an unreasonable burden on the couples who are then forced to decide to continue living in Indiana or relocate).
In their motion for summary judgment, the plaintiffs strongly asserted Gov. Mike Pence is a proper defendant. Young dismissed the first same-sex marriage lawsuit filed this year, Love et al. v. Pence, 4:14-cv-00015, agreeing with the state that the governor did not cause the injuries and has no ability to offer a resolution.
The Bowling parties claim the governor should be a defendant because he does have the power to redress the injuries. Specifically, Pence has the authority over two of the other defendants in the case – the Indiana revenue and state personnel departments – and can order them to recognize same-sex marriages performed in other jurisdictions.
Separately, Mann filed an appeal July 14 with the Indiana Court of Appeals on behalf of Linda Bruner, one of the plaintiffs in the federal suit. Bruner is seeking a divorce from her wife and had filed in state court but was denied.
In the Court of Appeals filing, Bruner v. Roberts, 49A05-1407-DR-316, Mann makes the argument that Indiana’s marriage law is unconstitutional.