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SCOTUS denial of cases opens door to new same-sex-couple issues

October 22, 2014

Linda Bruner and Lori Roberts could create another milestone in the historic march to legalize same-sex marriage in Indiana – the pair will likely be the first same-sex couple in the state to divorce.

Their petition for divorce was denied earlier by a Marion Superior Court because, at that time, Indiana did not recognize out-of-state marriages between gay and lesbian couples. However, eight days after the Supreme Court of the United States decided not to put a same-sex marriage case on its docket, the Indiana Court of Appeals granted Bruner’s motion to remand the case to the trial court for further proceedings.

Sometimes marriages end. That unions between same-sex couples dissolve just as they do between opposite-sex couples underscores gays’ and lesbians’ assertion that their lives are just like heterosexuals. The divorce petition also shows the same-sex marriage issue, at least in Indiana, is becoming settled.

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When the U.S. Supreme Court denied certiorari Oct. 6 to the same-sex marriage lawsuits before justices from the 4th, 7th and 10th Circuits, gay and lesbian couples in five states, including Indiana, became allowed to marry or have their out-of-state marriages recognized.

The denial was an unsatisfactory ending to an issue that sparked a fierce showdown over amending a ban on same-sex marriage into Indiana’s Constitution and launched five separate lawsuits challenging the state’s ban on same-sex marriage.

Some believe the marriage question has not been resolved. The Supreme Court could still take up the matter if a federal Circuit Court upholds a marriage ban. And because United States v. Windsor, the case that has become the basis for all recent challenges to state marriage laws, was decided by a 5-4 vote, a decision in favor of same-sex couples is not guaranteed.

Following the denial of cert, Indiana Attorney General Greg Zoeller maintained the nine justices have to rule in order for the marriage controversy to be finished.

“Our nation and all sides involved needed a conclusive Supreme Court ruling to bring finality to the legal question of state authority to adhere to the traditional definition of marriage,” Zoeller said. “Although it is unfortunate the Court did not accept the question and has again left states stuck in the limbo of uncertainty, ultimately the U.S. Supreme Court will have the final word on the subject of state authority to regulate marriage.”

However, attorneys who represented the same-sex couples say legal chaos would ensue if the Supreme Court backtracks and decides marriage bans are constitutional.

“You just have to be convinced, at least, the battle over marriage is finished,” attorney William Groth said, adding that trying to unscramble the egg would be a “horrible act of cruelty” to same-sex couples and their children. “I just don’t see it being revisited.”

Groth, a partner at Fillenwarth Dennerline Groth & Towe LLP, was on the legal team that represented the first responders’ same-sex marriage lawsuit, Lee, et al. v. Pence, et al.

Applying the law

From a legal standpoint, same-sex and opposite-sex married couples are the same. The rights, privileges and responsibilities the law provides to marriage apply to gays, lesbians and heterosexuals alike.

Pamela Lee, the lead plaintiff in Lee, noted she and her spouse, Candace Batten-Lee, had to spend hundreds of dollars to fashion a marriage through legal documents. Together for 25 years, they had to get paperwork for the legal rights – such as being able to walk into a loved one’s hospital room – that opposite-sex married couples take for granted.

“I wanted her to be able to make the decision for me if I’m on life support or whatever,” Lee, a veteran officer with the Indianapolis Metropolitan Police Department, said. “I don’t want that taken away from her. I want any funeral arrangements made by her and not somebody else.”

The courts, though, will have to settle issues and questions that will arise as family law is applied to same-sex partners, said Kathleen Sweeney, attorney at Sweeney Hayes LLC. For example, when determining custody and division of property in a divorce, the court may have to use a different measure than the duration of the marriage since the ban on same-sex marriage meant many gay and lesbian couples have lived together in committed relationships far longer than they actually have been married.

Sweeney, also a member of the Lee legal team, anticipates enforcement actions will be needed to ensure same-sex couples are being treated equally.

“When any constitutional rights are recognized, there are still enforcement actions,” she said. “If everything was normal in 30 days, we wouldn’t have race discrimination cases anymore. We wouldn’t have age discrimination. We wouldn’t have gender discrimination because those are done issues.”

As he does with his opposite-sex clients, James Reed is now advising his same-sex clients to think about drawing up a premarital agreement before they get married. The partner at Bingham Greenebaum Doll LLP is also reminding his gay and lesbian couples that not all states currently recognize same-sex marriage. If they move to a non-recognition state, the parties will have to put in place legal documents like Lee and her spouse did.

“It can be complicated,” Reed said.

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Attorney Richard Mann, who is representing Bruner in her divorce case, wondered if the private sector would also change the policies that had been established for domestic partners.

He speculated that companies offering non-married partner benefits to same-sex couples may reverse course now that the marriage ban has been knocked down. Businesses enacted these polices on the belief that same-sex couples were being discriminated against but now that these couples can get married in Indiana, the companies may no longer see any reason to extend benefits to cohabitating partners.

Next battle

Although gays and lesbians feel they have won an important battle, attorneys do not expect the opponents of same-sex marriage to quit fighting.

Groth and Joe Dunman, attorney with Clay Daniel Walton Adams PLC, the Kentucky law firm that filed the same-sex marriage lawsuit Love v. Pence, said the struggle will shift to civil rights.

Having the right to marry is a big step forward for the gay and lesbian community. This will provide the boost to get greater equality and extend protections to other areas such as employment and housing.

Although, as Groth explained, same-sex couples in Indiana can legally marry, they could still be fired from their jobs for putting a framed picture of their spouse on their desk at work.

He expects some private businesses will raise religious objections to serving same-sex couples. Groth noted other employers at various times since the passage of Title VII of the 1964 Civil Rights Act have tried to assert religious reasons for not paying minimum wage, not paying women the same wage as men, and refusing to serve food to African-American diners.

Opponents of same-sex marriage may try to find a test case to expand their notion of religious liberty, Groth said.

Within the Legislature, passing a state law that, as Groth said, would give private employers the right to discriminate would be difficult because it would have to pass constitutional muster. However, he continued, an effort may be initiated, noting the body has voted in laws such as the immigration statute and the Marion Superior judicial election system that were later ruled unconstitutional.

Calls to Indiana attorneys James Bopp Jr. and Eric Miller, prominent figures in the opposition to same-sex marriage, were not returned.

How strong the backlash is against same-sex marriage depends on whether religious institutions and individuals are accommodated, said Rick Garnett, director of the Program on Church, State and Society at the Notre Dame Law School.

“If legislatures move to, say, deny public funding or contracts or tax exemptions to religious groups that embrace the traditional definition of marriage,” Garnett said, “or if supporters of same-sex marriage insist that those who disagree are merely bigots, then a backlash is more likely.”

As for the next move that proponents of marriage equality will make, Dunman believes gays and lesbians could push for civil rights in incremental steps. The strategy may be to get fairness ordinances passed city by city as a way to ease the opposition then move to getting language regarding sexual orientation added to civil rights statutes.

However, Garnett does not see the battle over the marriage issue being finished. Many Americans and legislatures still support marriage as only between a man and a woman, and some states will continue to defend their marriage laws until all the courts weigh in.

“Assuming that, at some point, either the Supreme Court or the Courts of Appeals declare that states are constitutionally required to legally recognize same-sex marriages, many states, and also Congress, will then confront the question whether and how to deal with religious objections to such recognition,” he said. “I suspect that the package of religious accommodations and exemptions will vary from jurisdiction to jurisdiction, with some being more and others less willing to accommodate dissenters.”•

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