Case 1:14-cv-00404-TWP-DKL Document 1 Filed 03/14/14 Page 1 of 23 PageID #: 1

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

MIDORI FUJII,

)

MELODY LAYNE and TARA BETTERMAN, )

SCOTT and RODNEY MOUBRAY-CARRICO, )

MONICA WEHRLE and HARRIET MILLER, )

GREGORY HASTY and CHRISTOPHER

)

VALLERO,

)

ROB MACPHERSON and STEVEN STOLEN, )

L.M.-C., by his next friends and parents, SCOTT )

and RODNEY MOUBRAY-CARRICO,

)

A.M.-S., by her next friends and parents

)

ROB MACPHERSON and STEVEN STOLEN, )

)

Plaintiffs,

)

)

v.

)

)

GOVERNOR, STATE OF INDIANA, in his

)

official capacity,

)

COMMISSIONER, INDIANA STATE

)

DEPARTMENT OF HEALTH, in his official

)

capacity,

)

CLERK, ALLEN COUNTY, INDIANA, in her )

official capacity,

)

CLERK, HAMILTON COUNTY, INDIANA, in )

her official capacity,

)

)

Defendants.

)

No. 1:14-CV-404

Complaint for Declaratory and Injunctive Relief – Notice of Claim that Indiana Statute is Unconstitutional

Introduction

1. Plaintiffs bring this action to challenge the constitutionality of Indiana Code § 31-11-1-1.

The statute excludes same sex couples from m arriage and voids within Indiana the m arriages of

same-sex couples lawfully entered into in other states. The plaintiffs consist of a num ber of

persons who are severely burd ened because o f the above statute. Plai ntiff Midori Fujii is a

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widow whose same-sex spouse died in October of 2011 after three years in a m arriage that was solemnized in a state recognizing sam e-sex unions. Howe ver, because Indiana law does not recognize such unions, she is not provided the protections affo rded widows under Indiana law. This significantly disadvantages her. Plainti ffs Monica Wehrle and Ha rriet Miller, Gregory Hasty and Christopher Vallero, and Scott and Rodney Moubray-C arrico are lesbian and gay couples in loving and committed relationships who wish to marry in Indiana for the same reasons that opposite-sex couples marry – to publicly declare their love and commitment and to give one another the security and protec tion that only m arriage provides. However, they cannot do so because of the challenged statute. Melody Layne and Tara Betterm an and Rob MacPherson and Steven Stolen are lesbian and ga y couples who have m arried in other jurisdictions where sam esex marriages are lawful but whose m arriages are deemed void by the ch allenged law so th at they are treated as legal strangers and deni ed the s ignificant benefits, both tangible and intangible, that Indiana bestows on married persons. Scott and Rodney Moubray-Carrico are the parents and next friends of th eir minor child and plaintiff, L.M.-C., and Rob MacPherson and Steven Stolen are the p arents and next friends of their m inor child and plaintiff, A.M.-S. The fact that their parents are not permitted to marry or to have their marriages recognized in Indiana materially harms the children, stigmatiz es them, and denies their f amilies the legal protections, security, and social support that only m arriage provides. Indiana Code § 31-11-1-1 is unconstitutional as violating both due process and equal protection as secured by the Fourteenth Amendment to the United States C onstitution. Appropriate injunctive and declaratory relief is therefore requested. Jurisdiction, venue, cause of action 2. This Court has jurisdiction of this case pursuant to 28 U.S.C. §§ 1331 and 1343.
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3. Venue is proper in this district pursuant to 28 U.S.C. § 1391. 4. Declaratory relief is authorized by 28 U.S.C. §§ 2201 and 2202 and by Rule 57 of the Federal Rules of Civil Procedure. 5. Plaintiffs bring this action pursuant to 42 U.S.C. § 1983 to redress the deprivation, under color of state law, of rights secured by the Constitution of the United States. Parties 6. Midori Fujii is an adult resident of Hamilton County, Indiana. 7. Melody Layne and Tara Betterman are adult residents of Marion County, Indiana. 8. Scott and Rodney Moubray-Carrico are adult residents of Floyd County, Indiana. 9. Monica Wehrle and Harriet Miller are adult residents of Allen County, Indiana. 10. Gregory Hasty and Christopher Vallero are adult residents of Hamilton County, Indiana. 11. Rob MacPherson and Steven Stolen are adult residents of Marion County, Indiana. 12. L.M.-C. is a m inor child and lives with hi s parents and next fr iends Scott and Rodney Moubray-Carrico. He is proceeding by his initials pursuant to F.R.Civ.P. 5.2(a)(3). 13. A.M.-S. is a minor child and lives with her parents and next friends Rob MacPherson and Steven Stolen. She is proceeding by her initials pursuant to F.R.Civ.P. 5.2(a)(3). 14. The Governor of the State of Indiana is the duly elected chief executive of the State of Indiana. He is sued in his official capacity and is designated by official title pursuant to Fed.R.Civ.P. 17(d). 15. The Commissioner, Indiana State Department of Health is the duly appointed director of Indiana’s health agen cy. He is sued in his offi cial capacity and is de signated by official title pursuant to Fed.R.Civ.P. 17(d). 16. The Clerk of Allen County is the duly electe d Clerk of that county. She is sued in her
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official capacity and is designated by official title pursuant to Fed.R.Civ.P. 17(d). 17. The Clerk of Hamilton County is the duly elected Clerk of that county. She is sued in her official capacity and is designated by official title pursuant to Fed.R.Civ.P. 17(d). Legal background 18. Indiana Code § 31-11-1-1 provides:
(a) Only a female may marry a male. Only a male may marry a female. (b) A marriage between persons of the sam e gender is void in I ndiana even if th e marriage is lawful in the place where it is solemnized. 19. As a resu lt of the challenged law, marriage in Indiana is lega lly available only to opposite-sex couples. Sam e-sex couples m ay not m arry in Indiana, and if they are m arried in other states, their marriages are not recognized in Indiana. 20. Pursuant to Indiana law, I ndiana Code § 31-11-4-4, the Stat e Department of Health is required to develop the for m for applications for marriage licenses. The for m adopted by the State Department of Health is attached to this Complaint. 21. The application currently has information only for the “Male Applicant” and the “Fem ale Applicant.” It is therefore im possible for a sam e-sex couple to com plete the form. The f orm notes that furnishing false information in completing the form is a felony. 22. Under Indiana law the Clerk of each County is required to issue m arriage licenses to eligible couples who com plete the application. Ind. Code § 31-11-4-1, et seq. The Clerk is precluded from issuing a licen se to persons w ho do not have the autho rity to marry each other under, among other things, Indiana Code § 31-11-1-1. Ind. Code § 31-11-4-2. 23. The Executive Power of the State of Indiana is ve sted in the Governor. Ind. Const. art. 5, § 1. As such, the Governor appoints the heads of, and is ultim ately in charge of, numerous state agencies.
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Factual allegations Midori Fujii
24. Plaintiff Midori Fujii ("Midori"), lived in a committed relationship with Kristie Kay Brittain ("Kris") from 2000 until Kris's death in October, 2011. 25. Midori and Kris met in 1997 when both were serving on th e Board of Directors of a local non-profit organization. They developed a strong friendship that, after a few years, grew into a life-long, committed relationship and then marriage. 26. Their lives together revolved around fa mily, friends and their beloved pets. They were self-described “foodies” who enjoyed both going out to different restaurants and trying out new recipes at hom e. They would pick up food magazines like Bon Appetite or Gourmet, go to kitchen stores like Williams Sonoma or Sur La Table, or watch Food Network and get insp ired for a “project” to either cook som ething or go in search of a rest aurant. They also loved travel with family and friends, and often com bined their love of travel and food to search out new dishes to re-create at home. 27. Midori and Kris married in Los Angeles, California in the summer of 2008. 28. In March 2009, Kris was diagnosed with ovarian cancer. During her fight with cancer, she went th rough two m ajor surgeries, several hospitalizations, multiple courses of chemotherapy, and numerous tests and doctor's appointments. Midori was her primary caregiver throughout. Midori initially us ed her sick leave and paid tim e off to take care of Kris, but as Kris’s medical care needs increased , Midori b egan to work from home when possible and she took unpaid leaves of absence. 29. Because of Indiana’s marriage dis crimination statute, Midori and Kris were consid ered unmarried and did not have the protections an d decision-making authority they autom atically
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would have been given by statute had they been an opposite-sex couple married in California and living in Indiana. They had an attorney dr aft expensive documents, including wills and powers of attorney, to ensure M idori could care for Kris , make medical decisions as needed and inherit property from her spouse. Throughout Kris’s battle with can cer the couple was always a little on guard going to the doctors and hospitals and they lived w ith the added em otional stress of constantly being apprehensive about how they as a lesbian couple they would be treated by health care providers. 30. While Kris was suffering the physical and emotional pain of end stage cancer, she had the additional burden of worrying about how Midori would manage financially after she was gone. The attorney with whom the couple consulted was able to provide some protections, such as a will to ensure that Kris's wishes to leave her property to Midori would be honored. But there was nothing the attorney could do to establish most of the legal protections that are available to widows and widowers. 31. Because Midori's marriage to Kris is not recognized in Indiana, Midori was required to pay more than $300,000.00 in Indiana inheritance tax on all of the property that Kris left to her, including their shared home. If Midori were a n opposite sex spouse she would have paid no inheritance tax on the property she inherited from Kris. And unless their marriage is recognized in Indiana, Midori will not be eligible to receive Kris's social security benefits when she turns 65. Because Kris was the family’s primary breadwinner, if Midori could draw on Kris’s social security, as an opposite sex sp ouse could, Midori would have m ore financial security in retirement. 32. If Midori’s marriage to Kris was now recognized in Indiana as valid she could file the necessary proceedings in Indiana to have the inheritance tax refunded to her.
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33. Indiana's refusal to recognize her marriage to Kris does not just cause Midori economic hardship. In her time of grief, she is denied the comfort and dignity of being acknowledged as Kris's widow. For example, following Kris’s death in 2011, Midori experienced problems with a funeral director because she was not considered to be a surviving spouse.
Melody Layne and Tara Betterman 34. Plaintiffs Melody Layne ("Melody") and Tara Betterman ("Tara") of Indianapolis have lived together in a committed relationship for nearly 5 years. They met through a mutual friend. 35. Melody, 37, is a lifelong Indiana resident, born and raised in Greenwood. Tara, 44, grew up in New York and Florida and m oved to Indiana in the late 1990s to be near her twin brother. Melody works in business development for John Wiley & Sons, a publishing company. Tara is the owner and CEO of a property m anagement company in Indianapolis where she employees 12 people. 36. Melody and Tara share their hom e in Indianapolis with Melody’s 5 year old biological daughter. Although Tara does not have a legal relationship with the child, she is a parent in every practical respect and their daughter understands that they are family. 37. Melody and Tara strongly support each other. They share finances and responsibility for their property, including the home they share. 38. In 2012, Melody and Tara married in Central Park in New York City. They would have preferred to marry in their hom e state but ar e prohibited from doing s o by Indiana’s m arriage discrimination statute. 39. Because their m arriage is not recognized in their home state of Indiana, Melody and Tara have gone to considerable expense to have an attorney draw up documents, such as health
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care and general powers of attorn ey, to try to protect themselves. They understand, however, that this affords them only a fraction of the protections that come with marriage and they are concerned that those papers will not be honored in a crisis. They also still m ust incur the added expense of having wills drafted to provide the right to inheri t from one another they would receive automatically by statute if their marriage were recognized. 40. They also suffer additional financial harms and burdens opposite sex m arried couples do not endure. For example, because IRS recognizes their marriage but Indiana does no t, they must complete three separate federal tax returns for 2013 – one joint return as a married couple to file and two individual returns to be used to transfer information to the separate Indiana state income tax returns they must file. 41. If Melody and Tara were an opposite sex co uple their New York m arriage would be recognized in Indiana and they would be treated as a married couple under Indiana law. 42. The recognition and legitimacy that marriage provides to them means the world to Melody and Tara when they get to experience it. When they married in New York they felt happy and free every time they were recognized as a legal couple. They feel the loss of that freedom every time they return home to Indiana after travelling in a state where their marriage is respected. 43. For Tara and Melody, the cost of continuing to live in Indiana to be close to family was to be effectively "unmarried" and, thus, considered less of a family in the eyes of the state. Melody and Tara would like their marriage to be recognized in Indiana not only because of the concrete protections it would provide to them and their daughter, but also because being treated as an unmarried couple disrespects the commitment they have made to one another and devalues their family. They hope that their marriage will be recognized in Indiana before their
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daughter is old enough to be aware that the state does not consider her family deserving of the same respect afforded other families.
Scott Moubray-Carrico, Rodney Moubray-Carrico, and L.M.-C. 44. Plaintiffs Scott Moubray-Carrico ("Scott") and Rodney Moubray-Carrico ("Rodney") have lived together in a committed relationship for 12 years. Scott and Rodney live in New Albany, in Floyd County, with their son. Rodney, 47, is General Manager of a hotel. Scott, 47, is store manager of a department store. Scott and Rodney have lived in New Albany, Indiana since 2006. 45. Scott and Rodney have one son, plaintiff L.M.-C., who is 6. Scott adopted L.M-C. initially and Rodney later obtained a second parent adoption to establish a legal parent-child relationship with their son. 46. Scott and Rodney are very involved in their son's school and in their church, including leading a service project in their son’s school to donate money and supplies to a neglected school in an impoverished area. 47. In 2010, Scott and Rodney both changed their last names to Moubray-Carrico, a combination of their surnames. They changed their last names throug h legal process after experiencing challenges in being viewed as a fam ily while enrolling their son in pre-school. Because they cannot be marri ed in Indiana, presenting themselves as a f amily to their son’s preschool caused confusion. They also hoped that changing their last names would contribute to their son’s self-esteem and sense of security by conveying the stability, permanence, and family legitimacy that his peers enjo y simply by virtue of the fact that their parents are permitted to marry in Indiana. 48. Scott and Rodney would like to be able to get married in Indiana in order to have the legal
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protections married couples rely on. Because they cannot m arry in Indiana they must have expensive planning documents in order to protect them selves and one another. To secure som e measure of protection, Scott prep ared a Last Will & Testament and Power of Attorney. Becaus e of the cos t associated with the preparation of these do cuments Scott prepared h is online and Rodney has not yet been able to obtain docum ents. But for Indiana’s marriage discrimination statute, Scott and Rodney would m arry and receiv e the automatic protections given to m arried couples. For example, even without health care pow ers of attorney they could make health care decisions for one another in the event of a crisis and they could inherit property from one another through intestate succession. Rodney is fearful of how they might be treated in a time of crisis since Scott’s documents are self-prepared. And they know if tragedy were to befall Rodney, Scott would be treated as a legal stranger unable to make decisions for or perhaps even visit in a hospital the person to whom he has committed his life. 49. In addition, the exclusion from marriage impacts the family financially. If either were to die, the survivor would be deni ed social security. Scott would be entitled to no inheritance from Rodney. They m ust pay costly atto rney fees to obtain properly drafted, enforceable documents to give them some measure of protection. 50. Scott and Rodney also want to be able to marry because they are concerned that their son is being taught the message that his family is less deserving of respect and support than other families. 51. Scott and Rodney m eet all the requirem ents to marry one another in Indiana, except for the fact that they are both male. 52. Scott and Rodney inten d to m arry in Maryland on April 3, 2014. It will be a s mall ceremony devoid of the m any family and friends they have in Indiana who cannot make the trip
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with them. They would prefer to marry in I ndiana surrounded by fa mily and friends, but they believe they cannot wait any longer for Indiana law to treat them equally. W hen they m arry Rodney and Scott would like their marriage to be recognized in Indiana not only because of the concrete protections it would provide to them and their son, but also because they feel that being treated as an unmarried couple disrespects the commitment they have made to one another and devalues their family. 53. Even after they m arry in Maryland they will remain legal strang ers in Indiana. If they were an opposite sex co uple their Maryland m arriage would be recognized by Indiana and they would be treated as a married couple under Indiana law. 54. L.M-C., at age 6, is beginning to understa nd the concept of m arriage and its unequaled role in defining fam ily. He knows he and his parents are a family but he does not understand why his friends’ parents are allowed to m arry and his parents are not. He is stigmatized and his family is d emeaned by the fact that his parents are excluded from marriage. A llowing his parents to marry and recognizing their impending Maryland marriage would demonstrate that he and his fam ily are equally worthy of respect and the substantive prot ections and benefits marriage provides.
Monica Wehrle and Harriet Miller 55. Monica Wehrle (“Monica”) and H arriet Miller (“Harriet”) reside in Allen County, Indiana. Monica is a native of Fort Wayne, Indiana, and Harriet, an Ohio native, has lived in Fort Wayne since 1971. 56. They are lesbians and have been a committed, loving couple since 1977. 57. Monica has B.A. and M.P.A. degrees from Indiana University. Harriet has a B.A. degree from Goucher College and was also awarded an honorary Ph.D. from Indiana University.
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58. Monica and Harriet have a le ngthy history of being advocat es for the rights of wom en and, in 1977, created the Fort W ayne Women’s Bureau, a not-for-profit hum an services agency that provides a host of services to women and children. 59. Subsequent to creating the Fort W ayne Women’s Bureau, Monica and Harriet created “run, jane, run,” an event for am ateur female athletes that was a fundrai ser for the Fort W ayne Women's Bureau. By the late 1980’s "run, jane, run.” had becom e a separate national organization with affiliates in 15 communities across the United States. 60. The couple has a significant history of civic leadership and involvem ent in the Fort Wayne community. They have been active partic ipants, both nationally and internationally, in the Gay Games. 61. During the course of their relationship as a couple they have had to expend significant sums of money to pay attorneys to create legal documents to assure that they each have the right to make medical and other im portant life d ecisions for the other person in the event of incapacity. If they wer e married, these would not be nec essary. Ad ditionally, they rem ain concerned that in the event one of them is hospitalized these documents will not be honored. 62. Because they are not married they are unable to own property as m arried persons do, as tenants by the entirety. Instead, th ey have had to incur lega l fees to insure that in the event of one of their deaths, the property would automatically pass to the surviving person. 63. Harriet has three adult children and four grandchildren. And, between Harriet and Monica, they have many great nieces and nephews who know them only as a couple. 64. They wish to marry and wish to do so in Indiana – where they live. 65. They want their state to support their committed relationship.
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66. They want their young relativ es to know that their Stat e – Indiana – supports loving couples completely, regardless of whether the couples are gay or straight. 67. At the current tim e they are m ade to feel like second-class citiz ens without the same rights, benefits, and privileges that heterosexual couples may attain when they marry. They wish to be treated equally. 68. They want their legacy to be honored with dignity and their heirs to be proud of who they are, with knowledge that Indiana an d the United States recognizes them and their contributions as a couple and provides them with full legal rights.
Gregory Hasty and Christopher Vallero 69. Gregory Hasty and Christopher Vallero are a gay couple who live in Ham ilton County, Indiana. 70. Gregory Hasty is a surgical technologist who is working on a nursing degree and Christopher Vallero, a graduate of Indiana Univer sity’s Kelly School of Business, is em ployed by a medical research company in Indianapolis. 71. They have lived with each other in a committed and loving relationship for eight years. 72. They have not married although they desire to do so. 73. Gregory Hasty is a native of Indiana and wishes to be married in his home state. 74. They lead shared lives comparable to that of a married couple. However, they are denied the many benefits of marriage. 75. For example, they own their hom e together. But, because they are not m arried they do not own the property as tenants by the entirety, but as tenants in common. 76. During their relationship they have had to employ attorneys to draw up legal documents – such as medical powers of attorney – that would be completely unnecessary if they were married,
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as a spouse would automatically have these powers and rights. And, there is no guarantee that if an emergency arises and one of them is hospitalized they will have the proper documents with them giving the non-hospitalized partner decision-m aking rights or, even if the papers are there, the hospital will honor them. 77. They are looking into the possibility of adopti ng a child. They want to adopt a child into a family where the partners are married. They want their child to be raised by m arried parents in a State that recognizes the right of loving couples to wed, regard less of whether they are straight or gay. 78. In addition to the m any tangible benefits that are denied to them because they are den ied the right to m arry, even though they are in a committed relationship, they are d enied the many intangible benefits that arise from being able to show the world th at they are married. They are stigmatized by Indiana’s refusal to allow them to wed.
Rob MacPherson, Steven Stolen, and AM-S 79. Rob MacPherson and Steven Stolen reside in Indianapolis. 80. They have been a committed and loving coupl e for more than 25 years and were m arried in California in October of 2008. 81. Steven Stolen has a B.M. degree in Music Performance and a Master’s Degree in Music from the University of Michigan. He is an arts advocate and professional singer. He was a college professor for 20 years a nd is currently the Re gional Director for Ro cketship Indiana, a charter school management association. 82. Rob MacPherson has a B.A. from Central Mich igan University. He cu rrently serves as the Vice Presiden t for Development and Philan thropic Services with the Central Indiana Community Foundation whose goal is to inspire, suppor t, and practice philanthropy, leadership,
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and service in Central Indiana. He directs the Foundation’s asset developm ent strategies and donor services activities. He has been involved in non-profit organizations his entire career. 83. A.M.-S. was born in July 1998. Her birth m other chose Rob MacPherson and Steven Stolen to be A.M.-S.’s adoptive parents prior to the child’s birth. A.M.-S. was legally adopted by Rob MacPherson in Novem ber 1998 and then f iled a co-parenting petition to the State of Indiana. The State of Indiana granted that petition and A.M.-S. was adopted by Steven Stolen in March 1999. 84. Because their marriage is not recog nized by the State of In diana, Rob MacPherson and Steven Stolen have to deny their status as m arried persons when they pay their state taxes, even though the federal government now recognizes them as married. 85. They own their hom e. However, because thei r marriage is not recognized, they do not own the property as tenants by the entirety. 86. They have had to hire attorneys to set up medical decision-making and other documents to allow one partner to make decisions for the other in case of incapacity. Much of this would be unnecessary if their m arriage were recognized. And, there is no guarantee that if there is a medical emergency that the decision-making authority of the other partner will be recognized. 87. They recognize that there are m any tangible benefits bestowed under Indiana law to married persons, but these are denied to them. 88. This is – at its most basic – grossly unfair, regardless of all the tangible benefits that they, and their child, are denied. It is unfair that they are not recognized as a family and treated like all other families with married parents. To have their relationship not afforded the same legal status as the relationships of other couples, merely because they are both men, is onerous.
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89. It is particu larly onerous because th ey are parents and th is burdens no t only th em, but A.M.-S., their daughter. 90. A.M.-S. is currently 15 and is aware that he r parents’ marriage is not recognized by the State of Indiana and this causes her concern as she does not view her parents any differently than those of her friends who have m arried, opposite-sex, parents. Yet, she is acutely aware that the State of Indiana treats her parents, and hence her, differently.
The general effects of the challenged law 91. Excluding same-sex couples f rom marriage disqualifies them f rom critically important rights and responsibilities that di fferent-sex couples rely upon to secure their comm itment to each other, and to safeguard their fa milies. By way of e xample only, sam e-sex couples are denied:
a. The right to m ake health care decisions for an incapacitate d spouse, although opposite-sex spouses enjoy this statutory right. Ind. Code § 16-36-1-5. b. The protection of the marital privilege that is given to opposite-sex couples who wed. Ind. Code § 34-46-3-1. c. The duty of support and rights regard ing child custody and parenting time with respect to children of the marriage. See generally Ind. Code § 31-9-2-13 (Definition of “child”). d. Statutory protections granted to opposite-sex spouses upon death, including rights to inheritance when an opposite-sex spouse dies without a will, Ind. Code § 29-1-2-1; the right to claim an elective share of the estate of a deceased, o pposite-sex spouse who died with a will, Ind. Code § 29-1-3-1, et seq.; various survivor bene fits for the opposite-sex spouse of a public safety officer or state police officer killed in the line of duty, Ind. Code
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§§ 5-10-10-6, 5-10-10-6.5, 5-10-14-3; 10-12-2-6; various state retirem ent fund survivor benefits for opposite-sex spouses, Ind. Code §§ 5-10.2-3-7.6, 5-10.2-3-8, 5-10.3-12-27. e. The stabilizing effects and legal p rotections granted to opposite-sex spouses and their children through mandatory waiting periods prior to marriage dissolution, Ind. Code § 31-15-2-10, and by the requirements of fair division of marital property whether owned or acquired by one or both parties to the marriage, Ind. Code § 31-15-7-4. f. Preference given to opposite-sex spouses in being appointed legal guardian for an incapacitated spouse. Ind. Code § 29-3-5-5. g. Protection of the crim inal code that m akes it a crim e to fail to support a needy spouse. Ind. Code § 35-46-1-6. h. Eligibility for “Gold Star family member” status and eligibility for personalized or special group license plates for surviving, opposite-sex spouses of active duty armed forces or National Guard members or former prisoners of war. Ind. Code §§ 9-18-15-1, 918-25-8, 9-18-54-1. i. The right/obligation to file joint state income tax returns. Ind. Code § 6-3-4-2. j. Exemption from state inheritance tax imposed on property transferred by a decedent to a surviving, opposite-sex spouse. Ind. Code § 6-4.1-3-7. 92. In addition to state-level benefits and ob ligations, Indiana’s ex clusion of sam e-sex couples from marriage denies them eligibility for numerous federal p rotections that are only available to married couples if their marriages are legally recognized in the state where they live. For example, spousal eligibility for social secu rity benefits and the Fa mily Medical Leave Act are based on the law of the state w here the couple resides at the time of application. 42 U.S.C. §416(h)(1)(A)(i) (social security); 29 C.F.R. §825.122(b) (Family Medical Leave Act).
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93. Furthermore, while som e federal agencies currently recognize marriages validly performed in a state regardless of where th e married couple lives, those are adm inistrative decisions and are thus subject to the vagaries o f agency policy under different administrations and subject to congres sional action. On January 9, 2014 and February 14, 2014, bills were introduced in the U.S. House of Represen tatives and U.S. Senate, respectively, which would require the f ederal government to def er to the laws of a person’s state of legal residence i n determining marital status. See H.R. 3829, 113th Cong. § 3 (2014) (For Federal purposes “the term ‘marriage’ shall not include any relationship that the state, territory, or possession [where the couple resides] does not r ecognize as a m arriage.”); S. 2024, 113th Cong. (2014) (“A bill to amend chapter 1 of title 1 of the United Sta tes Code, with regard to the definition of ‘marriage’ and ‘spouse’ for Federal purposes and to ensure respect for State regulation of marriage.”). 94. In addition to the tangible harms above, same-sex couples wishing to marry in Indiana, or who live in Indiana bu t entered into a m arriage in another jurisdiction, are denied the unique social recognition that marriage conveys. Without access to the familiar language and legal label of marriage, they are u nable to instantly or adequately communicate to others the depth and permanence of their co mmitment, or to ob tain respect for that commitment as others do s imply by invoking their married status. 95. The many substantive and dign itary inequities imposed on committed same-sex couples include particular harms to same-sex couples’ children, who are equally deserving of the stability, permanence, and legitimacy that are enjoyed b y children of different-sex couples who marry. Civil marriage affords official sanctuar y to the family unit, offering parents and children critical means to secure legal parent-child bonds, and a familiar, public way of demonstrating those bonds to third parties. By denying same-sex couples marriage, Indiana reinforces the view that t he
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family bonds that tie sa me-sex parents and thei r children are less consequential, enduring, and meaningful than those of di fferent-sex parents and their children. Same-sex couples and their children accordingly must live with the vulnerability and the stress inflicted by a lack of access to the same mechanisms for securing their legal relationships, and the ever-present possibility that others may question their familial relationship – in social, legal, educational, and medical settings and at times of crisis – in ways that opposite-sex spouses can avoid si mply by reference to being married. 96. From a young age, children understand that marriage signifies an enduring family unit, and also understand that I ndiana classifies families headed by same-sex couples as less worthy than other families, undeserving of marriage, and not entitled to the same societal recognition and legal support as other families. Indiana has no adequate interest to justify marking the children of samesex couples, including p laintiffs L.M.-C. and A.M.-S ., with a badge of inferi ority that will invite disrespect in school, on the playground, and in every other sphere of their lives. 97. The government is a powerful teacher of discrimination to others. By decreeing that the relationships of same-sex couples should be ignored in Indiana, Indiana instructs all persons with whom same-sex couples interact, including those couples’ own child ren, that their relationships are less worthy than others. Bearing the imprimatur of t he government, I ndiana’s marriage discrimination statute communicates a view that same-sex couples a re unfit for the dignity, respect, and stature afforded t o different-sex couples, and this encourages ot hers to follow t he government’s example in discriminating against them. 98. Many private entities defer to Indiana’s designation of marital status in defining “family” for purposes of an array of i mportant benefits, often resulting in the exclusion of sa me-sex couples and their children from important safety nets such as private employer-provided health
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Case 1:14-cv-00404-TWP-DKL Document 1 Filed 03/14/14 Page 20 of 23 PageID #: 20

insurance for family members. Indiana also encourages disrespect of committed same-sex

couples and their children by othe rs in workplaces, schools, busin esses, and other m ajor arenas

of life, in ways that would be less likely to occur and more readily corrected if marriage were

available to same-sex couples.

Marriage and same-sex couples

99. Same-sex couples and opposite-sex couples are similarly situated for purposes of marriage.

100. Same-sex couples make the same commitment to one another as opposite-sex couples.

Like opposite-sex couples, same-sex couples fall i n love, bui ld their live s together, plan their

futures together, and hope to gr ow old together . Like opposite-sex couples, same-sex couples

support one another emotionally and financially, and take care of one another physically in times

of injury or illness.

101. Plaintiffs seek to marry and/or to have their marriages recognized for the same emotional,

romantic, and dignita ry reasons, a nd to provide the same legal she lter to the ir families, as

opposite-sex couples.

102. Plaintiffs, both adults and children, are equa lly worthy of the tang ible rights and

responsibilities, as well as the respect, dignity, and legitimacy that access to marriage confers on

opposite-sex couples and their children. For the many children being raised by same-sex couples,

the tangible resources and societal esteem that marriage confers on families is no less important

than for children of opposite-sex couples. The harm

s inherent in Indiana’s m arriage

discrimination statute are inflicted upon the plaintiffs and their children on a daily basis.

Sexual orientation and the status of lesbians and gay men

103. Sexual orientation bears no relati on to an individual’s ability to perform in, or contribute

to, society.

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104. Sexual orientation is a core, def ining trait that is so f undamental to an indiv idual’s identity and conscience that a person may not legitimately be required to abandon it, even if that were possible. 105. Sexual orientation generally is fixed at an early age and is highly resistant to change through intervention. No credible evidence supports the notion that such interventions are either effective or safe; indeed, they often are harm ful and dam aging. No main stream mental health professional organization approve s interventions that attem pt to change sexual orientation, and virtually all of them – includ ing the Am erican Psychological Associa tion and th e American Psychiatric Association – have adopted policy statements cautioning professionals and the public about treatments attempting to alter sexual orientation. 106. Lesbians and gay m en are a discrete and in sular minority who have suffered a long and painful history of discrimination in Indiana and throughout the United States. 107. Ongoing prejudice against lesbians and gay men continues seriously to curtail the operation of those political processes that might ordinarily be relied upon to protect minorities. 108. Lesbians and gay m en lack express statut ory protection against discrim ination in employment, public accommodations, and housing at the federal level and in more than half the states, including Indiana; they are the only group in Indiana to have been targeted by the legislative process to strip them of the right to marry by state constitutional amendment; and they have been targeted across the nation through the voter initiative process m ore than any other group. The role of the defendants 109. As Indiana’s chief executive officer, defendant Governor is responsible for the actions of the numerous state agencies, and the numerous state policies, that disadvantage plaintiffs. These
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Case 1:14-cv-00404-TWP-DKL Document 1 Filed 03/14/14 Page 22 of 23 PageID #: 22
include policies regarding tax obligations, vital records, and insurance coverage, among others. 110. The Commissioner of the Indian a State Departm ent of Hea lth is responsible for the marriage certificate application that prevents same-sex couples from being able to apply for, and receive, marriage licenses. 111. The defendant county clerks are delegated the power by Ind iana law to issue m arriage licenses and to determ ine if those applying m eet the requirem ents for marriage under Indiana law. 112. At all times defendants have acted and have refused to act under color of state law. 113. The actions of the defendants are causing plaintiffs irreparable harm for which there is no adequate remedy at law. Legal claims 114. By failing to allow same-sex couples to m arry, or to recognize in I ndiana marriages they enter into in other states, Indiana Code § 31- 11-1-1 is unconstitutional as im pinging on the fundamental right of m arriage, in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. 115. Same-sex couples and their ch ildren are sim ilarly situated to opposite-sex couples and their children and to the extent that Indiana Code § 31-11-1-1 allows opposite-sex couples to marry, but not same-sex couples, the statute is un constitutional as violating the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Claim for relief
WHEREFORE, plaintiffs request that this Court: a. Accept jurisdiction of this case and set it for hearing at the earliest opportunity. b. Enter a declaratory judgm ent that In diana Code § 31-11-1-1 is unconstitutional for the reasons noted above.
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c. Enter a preliminary injunction, later to be made permanent, enjoining defendants from enforcing Indiana Code § 31-11-1-1, thus recognizing the marriages of the plaintiff same-sex couples who have wed outside of Indiana and allowing th e plaintiff same-sex couples who have not wed to do so in Indian a, and enjoining defendant Commissioner of the Indiana State Board of Health to change all appropriate for ms to recognize same-sex marriage applications and marriages.
d. Award plaintiffs their costs and reasonable attorneys’ fees.
e. Award all other proper relief.

/s/ Kenneth J. Falk Kenneth J. Falk No. 6777-49

Sean No.

/s/ Gavin M. Rose

Gavin M. Rose

Indianapolis,

No. 26565-53

317/985-5809

ACLU of Indiana

fax:

1031 E. Washington St.

sean@lem

Indianapolis, IN 46202

317/635-4059

fax: 317/635-4105

kfalk@aclu-in.org

grose@aclu-in.org

James Esseks Motion for Admission Pro Hac Vice to Be Filed Chase Strangio Motion for Admission Pro Hac Vice to Be Filed American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 212/549.2627 fax: 212/549-2650 jesseks@aclu.org cstrangio@aclu.org

Counsel for plaintiffs Wehrle, Miller, Hasty, Vallero, MacPherson, Stolen, A.M.-S.

/s/ Sean C. Lemieux C. Lemieux 16778-49
Lemieux Law 23 E. 39th St.
IN 46205
866/686-2901 ieuxlawoffices.com
Counsel for plaintiffs Fujii, Layne, Betterman, L.M.-C., Scott and Rodney MoubrayCarrico

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 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

MARILYN RAE BASKIN and ESTHER )

FULLER; BONNIE EVERLY and LINDA )

JUDKINS; DAWN LYNN CARVER and )

PAMELA RUTH ELEASE EANES;

)

HENRY GREENE and GLENN

)

FUNKHOUSER, individually and as

)

parents and next friends of C.A.G.;

)

NIKOLE QUASNEY, and AMY

)

SANDLER, individually and as parents and )

next friends of A.Q.-S. and M.Q.-S.,

)

)

)

Plaintiffs,

)

)

vs.

)

)

PENNY BOGAN, in her official capacity )

as BOONE COUNTY CLERK; KAREN )

M. MARTIN, in her official capacity as )

PORTER COUNTY CLERK; MICHAEL )

A. BROWN, in his official capacity as

)

LAKE COUNTY CLERK; PEGGY

)

BEAVER, in her official capacity as

)

HAMILTON COUNTY CLERK;

)

WILLIAM C. VANNESS II, M.D., in his )

official capacity as the COMMISSIONER, )

INDIANA STATE DEPARTMENT OF )

HEALTH; and GREG ZOELLER, in his )

official capacity as INDIANA

)

ATTORNEY GENERAL,

)

)

Defendants. )

1:14-cv-00355-RLY-TAB

1

MIDORI FUJII; MELODY LAYNE and )

TARA BETTERMAN;

)

SCOTT and Rodney MOUBRAY-

)

CARRICO; MONICA WEHRLE and

)

HARRIET MILLER; GREGORY

)

HASTY and CHRISTOPHER VALLERO; )

ROB MACPHERSON and STEVEN

)

STOLEN, individually and as parents and )

next friends of L. M.-C. and A. M.-S.,

)

)

Plaintiffs,

)

)

vs.

)

)

GOVERNOR, STATE OF INDIANA, in )

his official capacity; COMMISSIONER, )

INDIANA STATE DEPARTMENT OF )

HEALTH, in his official capacity;

)

COMMISSIONER, INDIANA STATE

)

DEPARTMENT OF REVENUE, in his

)

official capacity; CLERK, ALLEN

)

COUNTY, INDIANA, in her official

)

capacity; CLERK, HAMILTON

)

COUNTY, INDIANA, in her official

)

capacity,

)

)

Defendants. )

)

1:14-cv-00404-RLY-TAB

OFFICER PAMELA LEE, CANDACE )

BATTEN-LEE, OFFICER TERESA

)

WELBORN, ELIZABETH J. PIETTE,

)

BATALLION CHIEF RUTH

)

MORRISON, MARTHA LEVERETT, )

SERGEANT KAREN VAUGHN-

)

KAJMOWICZ, TAMMY VAUGHN-

)

KAJMOWICZ, and J. S. V., T. S. V., T. R. )

V., by their parents and next friends

)

SERGEANT KAREN VAUGHN-

)

KAJMOWICZ and TAMMY VAUGHN- )

KAJMOWICZ,

)

)

2

Plaintiffs,

)

)

vs.

)

)

MIKE PENCE, in his official capacity as )

GOVERNOR OF THE STATE OF

)

INDIANA; BRIAN ABBOTT, CHRIS

)

ATKINS, KEN COCHRAN, STEVE

)

DANIELS, JODI GOLDEN, MICHAEL )

PINKHAM, KYLE ROSEBROUGH, and )

BRET SWANSON, in their official

)

capacities as members of the Board of

)

Trustees of the Indiana Public Retirement )

System; and STEVE RUSSO, in his

)

official capacity as Executive Director of )

the Indiana Public Retirement System,

)

)

Defendants. )

1:14-cv-00406-RLY-MJD

ENTRY ON CROSS-MOTIONS FOR SUMMARY JUDGMENT The court has before it three cases, Baskin v. Bogan, Fujii v. Pence, and Lee v. Pence. All three allege that Indiana Code Section 31-11-1-1 (“Section 31-11-1-1”), which defines marriage as between one man and one woman and voids marriages between same-sex persons, is facially unconstitutional. Plaintiffs in the Baskin and Fujii cases challenge the entirety of Section 31-11-1-1, while Plaintiffs in the Lee case challenge only Section 31-11-1-1(b). Plaintiffs, in all three cases, allege that Section 3111-1-1 violates their rights to due process and equal protection under the Fourteenth Amendment of the United States Constitution. In each case, Plaintiffs seek declaratory and injunctive relief against the respective Defendants. Also in each case, Plaintiffs and Defendants have moved for summary judgment, agreeing that there are no issues of
3

material fact. For the reasons set forth below, the court finds that Indiana’s same sex marriage ban violates the due process clause and equal protection clause and is, therefore, unconstitutional. The court GRANTS in part and DENIES in part the Plaintiffs’ motions for summary judgment and GRANTS in part and DENIES in part the Defendants’ motions. I. Ba ckground
A. The Baskin Plaintiffs The court considers the case of Baskin v. Bogan to be the lead case and thus will recite only those facts relevant to that dispute. In Baskin v. Bogan, Plaintiffs are comprised of five same-sex couples and three minor children of two of the couples. (Amended Complaint ¶ 1, Filing No. 30).1 Four couples, Marilyn Rae Baskin and Esther Fuller, Bonnie Everly and Linda Judkins, Dawn Carver and Pamela Eanes, Henry Greene and Glenn Funkhouser (collectively the “unmarried plaintiffs”), are not married; one couple, Nikole Quasney and Amy Sandler (collectively the “married plaintiffs”), married in Massachusetts while on their annual vacation to the Sandler family home. Each couple resides in Indiana and has been in a loving, committed relationship for over a decade. Each couple has their own set of fears and concerns should something happen to his or her significant other. Plaintiffs challenge Section 31-11-1-1, which states: (a) Only a female may marry a male. Only a male may marry a female. (hereinafter “Section A”)
1 Filing Numbers will refer to those documents in Baskin v. Bogan unless stated otherwise.
4

(b) A marriage between persons of the same gender is void in Indiana even if the marriage is lawful in the place where it is solemnized. (hereinafter “Section B”) In addition, Plaintiffs broadly challenge other Indiana statutes that have the effect of carrying out the marriage ban. (hereinafter, collectively, with Section 31-11-1-1, referred to as “Indiana’s marriage laws”). On April 10, 2014, the court granted a temporary restraining order (Filing No. 51) prohibiting the Baskin Defendants from enforcing Section B against Nikole Quasney and Amy Sandler. The parties in Baskin agreed to fully brief their motions for preliminary injunction and summary judgments for a combined hearing held on May 2, 2014. The court granted a preliminary injunction extending the temporary restraining order. (Filing No. 65). The court now considers the cross motions for summary judgment in the three cases. B. Indiana’s Marriage Laws In order to marry in the State of Indiana, a couple must apply for and be issued a marriage license. See Ind. Code § 31-11-4-1. The couple need not be residents of the state. See Ind. Code § 31-11-4-3. However, the two individuals must be at least eighteen years of age or meet certain exceptions. See Ind. Code § 31-11-1-4; Ind. Code § 31-11-15. An application for a marriage license must include information such as full name, birthplace, residence, age, and information about each person’s parents. See Ind. Code § 31-11-4-4.2 The application only has blanks for information from a male and female applicant. See Marriage License Application, available at
2 The State Department of Health is charged under Ind. Code § 31-11-4-4(c) with developing a uniform application for marriage licenses.
5

www.in.gov/judiciary/2605.htm. It is a Class D Felony to provide inaccurate information in the marriage license or to provide inaccurate information about one’s physical condition.3 See Ind. Code § 31-11-11-1; Ind. Code § 31-11-11-3. The clerk may not issue a license if an individual has been adjudged mentally incompetent or is under the influence of alcohol or drugs. See Ind. Code § 31-11-4-11.
The marriage license serves as the legal authority to solemnize a marriage. See Ind. Code § 31-11-4-14. The marriage may be solemnized by religious or non-religious figures. See Ind. Code § 31-11-6-1. If an individual attempts to solemnize a marriage in violation of Indiana Code Chapter 31-11-1, which includes same-sex marriages, then that person has committed a Class B Misdemeanor. See Ind. Code § 31-11-11-7.
In addition to prohibiting same-sex marriages, Indiana prohibits bigamous marriages and marriages between relatives more closely related than second cousins unless they are first cousins over the age of sixty-five. See Ind. Code § 31-11-1-2 (cousins); see Ind. Code § 31-11-1-3 (polygamy). Nevertheless, when evaluating the legality of marriages, the Indiana Supreme Court found that “the presumption in favor of matrimony is one of the strongest known to law.” Teter v. Teter, 101 Ind. 129, 131-32 (Ind. 1885). In general, Indiana recognizes out-of-state marriages that were valid in the
3 In an official opinion concerning the authority of clerks to issue marriage licenses and only referencing one occasion where they cannot –same-sex marriages, the Attorney General appeared to consider inaccurate physical information to include gender. See 2004 Ind. Op. Att’y Gen. No. 4 (Apr. 29, 2004). The Attorney General noted that a clerk can be charged with a misdemeanor for issuing a marriage license knowing the information concerning the physical condition of the applicant is false. See id.
6

location performed. Bolkovac v. State, 98 N.E.2d 250, 304 (Ind. 1951) (“[t]he validity of a marriage depends upon the law of the place where it occurs.”). II. Summary Judgment Standard
The purpose of summary judgment is to “pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is appropriate if the record “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED R. CIV. P. 56(a). A genuine issue of material fact exists if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party on the particular issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
On a motion for summary judgment, the burden rests with the moving party to demonstrate “that there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). After the moving party demonstrates the absence of a genuine issue for trial, the responsibility shifts to the non-movant to “go beyond the pleadings” and point to evidence of a genuine factual dispute precluding summary judgment. Id. at 322-23. “If the non-movant does not come forward with evidence that would reasonably permit the finder of fact to find in her favor on a material question, then the court must enter summary judgment against her.” Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994) (citing Matsushita Elec. Indus. Co., 475 U.S. at 585-87); see Celotex, 477 U.S. at 322-24; see also Anderson, 477 U.S. at 249-52.
7

Prior to discussing the merits of the summary judgment motions, the court must decide several threshold issues. First, the court must determine whether Defendants Attorney General Zoeller, Governor Pence, and the Commissioner of the Indiana State Department of Revenue (“Department of Revenue Commissioner”) are proper parties, and second, whether Baker v. Nelson, 409 U.S. 810 (1972) bars the present lawsuit. III. Proper Party-Defendants
Under the Eleventh Amendment, a citizen cannot sue their state in federal court unless the state consents. However, the Supreme Court created an important exception to that immunity in Ex Parte Young. 209 U.S. 123 (1908). Under that doctrine, “a private party can sue a state officer in his or her official capacity to enjoin prospective action that would violate federal law.” Ameritech Corp. v. McCann, 297 F.3d 582, 585-86 (7th Cir. 2002)(quoting Dean Foods Co. v. Brancel, 187 F.3d 609, 613 (7th Cir. 1999)). Because Plaintiffs seek an injunction to enjoin actions which violate federal law, Ex Parte Young applies. The question here rather, is who is a proper defendant?
The proper defendants are those who bear “‘legal responsibility for the flaws [plaintiffs] perceive in the system’ and not one[s] from whom they ‘could not ask anything . . . that could conceivably help their cause.’” Sweeney v. Daniels, No. 2:12-cv81-PPS/PRC, 2013 WL 209047, * 3 (N.D. Ind. Jan. 17, 2013) (quoting Hearne v. Bd. of Educ., 185 F.3d 770, 777 (7th Cir. 1999)). Defendants Zoeller, Pence, and the Department of Revenue Commissioner assert that they are not the proper parties. For the reasons explained below, the court agrees with Governor Pence and disagrees with Attorney General Zoeller and the Department of Revenue Commissioner.
8

A. Defendant Zoeller Defendant Zoeller, sued in Baskin v. Bogan, asserts that he neither has the authority to enforce nor has any other role respecting Section 31-11-1-1 as the Attorney General. However, the Baskin Plaintiffs’ complaint broadly challenges Section 31-11-11 and the State’s other laws precluding such marriages, and requests that the court declare Section 31-11-1-1 “and all other sources of Indiana law that preclude marriage for samesex couples or prevent recognition of their marriages” unconstitutional. (Amended Complaint §§ 3, 80, Filing No. 30, at ECF p. 2, 26). This relief would encompass such criminal statutes as listed above in Part I.B. The Attorney General has the broad authority to assist in the prosecution of any offense if he decides that it is in the public interest. See Ind. Code. § 4-6-1-6. Noting this broad authority, the court has previously found that the Attorney General is a proper party when challenging statutes regarding abortion. See Arnold v. Sendak, 416 F. Supp. 22, 23 (S.D. Ind. 1976), aff’d, 429 U.S. 476 (1976) (finding “[t]he Attorney General thus has broad powers in the enforcement of criminal laws of the state, and is accordingly a proper defendant.”); see also Gary-Northwest Indiana Women’s Services, Inc. v. Bowen, 496 F. Supp. 894 (N.D. Ind. 1980) (attorney general as a party to a law challenging statute criminalizing abortion). Although Section 31-11-1-1 does not specifically define criminal penalties, Indiana has criminal provisions in place to prevent individuals from marrying in violation of it. See Ind. Code §§ 31-11-11-7; 31-11-11-1; and 31-11-11-13. Because the Attorney General has broad powers in the enforcement of such criminal statutes, he has a sufficient connection and role in enforcing such statutes for purposes of
9

Ex Parte Young. 209 U.S. at 157. Therefore, the court DENIES the Attorney General’s motion for summary judgment on that ground. (Filing No. 55).
B. Governor Pence Governor Pence is sued in the Fujii and Lee cases. As the court found in Love v. Pence, another case challenging the constitutionality of Section 31-11-1-1, the Governor is not a proper party because the Plaintiffs’ injuries are not fairly traceable to him and cannot be redressed by him. (Love v. Pence, No. 4:14-cv-15-RLY-TAB, Filing No. 32 (S.D. Ind. June 24, 2014). Therefore, the court GRANTS the Governor’s motions for summary judgment (Fujii Filing No. 44) (Lee Filing No. 41). C. Commissioner of the Indiana State Department of Revenue The Fujii Plaintiffs also brought suit against the Department of Revenue Commissioner. The Commissioner claims he is the wrong party because any harms caused by him do not constitute a concrete injury. The court disagrees and finds that Plaintiffs have alleged a concrete injury by having to fill out three federal tax returns in order to file separate returns for Indiana. See e.g. Harris v. City of Zion, Lake County, Ill., 927 F.2d 1401, 1406 (7th Cir. 1991) (“[a]n identifiable trifle is enough for standing to fight out a question of principle; the trifle is the basis for standing and the principle supplies the motivation.”). The court finds that this is an identifiable trifle. Therefore, the court DENIES the Department of Revenue Commissioner’s motion for summary judgment on that ground. (Fujii Filing No. 44).
10

IV. The Effect of Baker v. Nelson Defendants argue that this case is barred by Baker v. Nelson. In Baker, the United
States Supreme Court dismissed an appeal from the Supreme Court of Minnesota for want of a substantial federal question. 409 U.S. at 810. The Supreme Court of Minnesota held that: (1) the absence of an express statutory prohibition against same-sex marriages did not mean same-sex marriages are authorized, and (2) state authorization of same-sex marriages is not required by the United States Constitution. Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), aff’d, 409 U.S. 810 (1972).
The parties agree that the Supreme Court’s ruling has the effect of a ruling on the merits. See Ill. Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 182-83 (1979) (“a summary disposition affirms only the judgment of the court below, and no more may be read into [the] action than was essential to sustain the judgment.”). Defendants contend that this case raises the precise issue addressed by Baker and thus binds the court to find in Defendants’ favor. See Hicks v. Miranda, 422 U.S. 332, 344-45 (1975) (quotation omitted) (“the lower courts are bound . . . until such time as the [Supreme] Court tells them that they are not.”).
The court agrees that the issue of whether same-sex couples may be constitutionally prohibited from marrying is the exact issue presented in Baker. Nevertheless, the Supreme Court created an important exception that “when doctrinal developments indicate,” lower courts need not adhere to the summary disposition. Id. Plaintiffs argue that three decisions in particular are such developments: Romer v. Evans,
11

517 U.S. 620 (1996), Lawrence v. Texas, 539 U.S. 558 (2003), and United States v. Windsor, 133 S. Ct. 2675 (2013), and thus, the court no longer must adhere to Baker.
The Supreme Court decided Baker at a different time in the country’s equal protection jurisprudence. The following are examples of the jurisprudence at and around the time of Baker. The Court struck down a law for discriminating on the basis of gender for the first time only one year before Baker. Reed v. Reed, 404 U.S. 71 (1971). Moreover, at the time Baker was decided, the Court had not yet recognized gender as a quasi-suspect classification. Regarding homosexuality, merely four years after Baker, the Supreme Court granted a summary affirmance in a case challenging the constitutionality of the criminalization of sodomy for homosexuals. Doe v. Commonwealth’s Attorney for City of Richmond, 425 U.S. 901 (1976). Thus, the Supreme Court upheld the district court’s finding that “[i]t is enough for upholding the legislation that the conduct is likely to end in a contribution to moral delinquency.” Doe v. Commonwealth’s Attorney for City of Richmond, 403 F. Supp. 1199, 1202 (E.D. Va. 1975), aff’d 425 U.S. 901 (1976). Nine years later in 1985, the Eleventh Circuit found that particular summary affirmance was no longer binding. Hardwick v. Bowers, 760 F.2d 1202 (11th Cir. 1985), rev’d 478 U.S. 186 (1986). However, on review, the Supreme Court held that states were permitted to criminalize private, consensual sex between adults of the same-sex based merely on moral disapproval. See Bowers v. Hardwick, 478 U.S. 186 (1986), overruled by Lawrence, 539 U.S. at 578. For ten more years, states were free to legislate against homosexuals based merely on the majority’s disapproval of such conduct.
12

Then in 1996, the Supreme Court decided Romer – the first case that clearly shows a change in direction away from Baker. The Court held that an amendment to the Colorado Constitution, specifically depriving homosexual persons from the protection of anti-discrimination measures, violated the Equal Protection Clause. Romer, 517 U.S. at 635. The next change occurred in 2003 with Lawrence when the Supreme Court overruled Bowers, finding that the promotion of morality is not a legitimate state interest under the Equal Protection Clause and the state may not criminalize sodomy between individuals of the same sex. Lawrence, 539 U.S. at 582.
Finally, in the last year even more has changed in the Supreme Court’s jurisprudence shedding any doubt regarding the effect of Baker. The Supreme Court granted certiorari for two cases involving the constitutionality of laws adversely affecting individuals based on sexual orientation. First, in United States v. Windsor, the Supreme Court invalidated Section 3 of The Defense of Marriage Act (“DOMA”), which defined marriage for purposes of federal law as “only a legal union between one man and one woman.” 133 S. Ct. at 2694 (quoting 1 U.S.C. § 7). The Court noted that the differentiation within a state caused by DOMA “demeans the couple, whose moral and sexual choices the Constitution protects.” Windsor, 133 S. Ct. at 2694. Additionally, the Court found that the purpose of DOMA “is to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages.” Id. at 2693. Second, the Supreme Court dismissed an appeal of California’s prohibition on same-sex marriages, not because Baker rendered the question insubstantial, but because the law’s supporters lacked standing to defend it. Hollingsworth v. Perry, 133 S.
13

Ct. 6252 (2013). These developments strongly suggest, if not compel, the conclusion that Baker is no longer controlling and does not bar the present challenge to Indiana’s laws. See Windsor v. United States, 699 F.3d 169, 178 (2d Cir. 2012), aff’d, 133 S. Ct. 2675 (2013) (holding that Baker was not controlling as to the constitutionality of DOMA, reasoning that “[i]n the forty years after Baker, there have been manifold changes to the Supreme Court’s equal protection jurisprudence” and that “[e]ven if Baker might have had resonance . . . in 1971, it does not today”).
The court acknowledges that this conclusion is shared with all other district courts that have considered the issue post-Windsor. See Wolf v. Walker, No. 3:14-cv-00064bbc, 2014 WL 2558444, ** 3-6 (W.D. Wisc. June 6, 2014); Whitewood v. Wolf, No. 1:13-cv-1861, 2014 WL 2058105, ** 4-6 (M.D. Penn. May 20, 2014); Geiger v. Kitzhaber, No. 6:13-cv-01834-MC, 2014 WL 2054264, *1 n. 1 (D. Or. May 19, 2014); Latta v. Otter, 1:13-cv-482-CWD, 2014 WL 1909999, ** 7-10 (D. Idaho May 13, 2013); DeBoer v. Snyder, 973 F. Supp. 2d 757, 773 n. 6 (E.D. Mich. 2014); DeLeon v. Perry, 975 F. Supp. 2d 632, 648 (W.D. Tex. 2014) (order granting preliminary injunction); Bostic v. Rainey, 970 F. Supp. 2d 456, 469-70 (E.D. Va. 2014); Bishop v. U.S. ex rel. Holder, 962 F. Supp. 2d 1252, 1274-77 (N.D. Okla. 2014); McGee v. Cole, No. 3:13-cv24068, 2014 WL 321122, ** 8-10 (S.D.W. Va. Jan. 29, 2014); Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1195 (D. Utah 2013). Finding that Baker does not bar the present action, the court turns to the merits of Plaintiffs’ claims.
14

V. Right to Marry Whom?

As the court has recognized before, marriage and domestic relations are

traditionally left to the states; however, the restrictions put in place by the state must

comply with the United States Constitution’s guarantees of equal protection of the laws

and due process. See Windsor, 133 S. Ct. at 2691 (citing Loving v. Virginia, 388 U.S. 1

(1967)). Plaintiffs assert that Indiana’s marriage laws violate those guarantees.

A. Due Process Clause

1.

Fundamental Right

The Due Process Clause of the Fourteenth Amendment guarantees that no state

shall “deprive any person of life, liberty, or property without the due process of law.”

U.S. Const. amend. XIV § 1. The purpose of the Due Process Clause is to “protect[]

those fundamental rights and liberties which are, objectively, deeply rooted in this

Nation’s history and tradition, and implicit in the concept of ordered liberty . . . .”

Washington v. Glucksburg, 521 U.S. 702, 720-21 (1997) (quotations and citations

omitted). Because such rights are so important, “an individual’s fundamental rights may

not be submitted to vote.” DeLeon, 975 F. Supp. 2d at 657 (citing W. Va. State Bd. of

Educ. v. Barnette, 319 U.S. 624, 638 (1943)). Plaintiffs assert that the State of Indiana

impedes upon their fundamental right to marry, and thus, violates the Due Process

Clause.

The parties agree that a fundamental right to marry exists; however they dispute

the scope of that right. The fact that the right to marry is a fundamental right, although

not explicitly stated by the Supreme Court, can hardly be disputed. See, e.g., Zablocki v. 15

Redhail, 434 U.S. 374, 384 (1978) (“[D]ecisions of this Court confirm that the right to marry is of fundamental importance for all individuals.”); United States v. Kras, 409 U.S. 434, 446 (1973) (concluding the Court has come to regard marriage as fundamental); Loving, 388 U.S. at 12 (“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”); Skinner v. Okla. ex. rel. Williamson, 316 U.S. 535 (1942) (noting marriage is one of the basic civil rights of man fundamental to our existence and survival); Maynard v. Hill, 125 U.S. 190, 205 (1888) (characterizing marriage as “the most important relation in life” and as “the foundation of the family and society, without which there would be neither civilization nor progress.”). Additionally, the parties agree that the right to marry necessarily entails the right to marry the person of one’s choice. See Lawrence, 539 U.S. at 574 (2003) (“Our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.”).
Defendants, relying on Glucksberg, argue that the fundamental right to marry should be limited to its traditional definition of one man and one woman because fundamental rights are based in history. The concept of same-sex marriage is not deeply rooted in history; thus, according to Defendants, the Plaintiffs are asking the court to recognize a new fundamental right. Plaintiffs counter that Defendants’ reliance on Glucksberg is mistaken because the Supreme Court has repeatedly defined the fundamental right to marry in broad terms.
16

The court agrees with Plaintiffs. “Fundamental rights, once recognized, cannot be
denied to particular groups on the ground that these groups have historically been denied
those rights.” In re Marriage Cases, 183 P.3d 384, 430 (Cal. 2008) (superseded by constitutional amendment). In fact, “the history of our Constitution . . . is the story of the
extension of constitutional rights and protections to people once ignored or excluded.”
United States v. Virginia, 518 U.S. 515, 557 (1996). The reasoning in Henry v. Himes is particularly persuasive on this point:
The Supreme Court has consistently refused to narrow the scope of the fundamental right to marry by reframing a plaintiff’s asserted right to marry as a more limited right that is about the characteristics of the couple seeking marriage. . . [T]he Court consistently describes a general ‘fundamental right to marry’ rather than ‘the right to interracial marriage,’ ‘the right to inmate marriage,’ or ‘the right of people owing child support to marry.’ No.1:14-cv-129, 2014 WL 1418395, *7 (S.D. Ohio Apr. 14, 2014) (emphasis added)
(citing Loving, 388 U.S. at 12; Turner v. Safley, 482 U.S. 78, 94-96 (1987); Zablocki, 434 U.S. at 383-86).
The court finds Loving v. Virginia best illustrates that concept. In that case, the Court held that Virginia’s ban on interracial marriage violated the plaintiffs’ rights under
the Due Process Clause. 388 U.S. at 12. The Loving Court stated “[t]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly
pursuit of happiness by free men,” and further recognized that, “marriage is one of the
‘basic civil rights of man.’” Id. If the Court in Loving had looked only to the “traditional” approach to marriage prior to 1967, the Court would not have recognized
that there was a fundamental right for Mildred and Richard Loving to be married, 17

because the nation’s history was replete with statutes banning interracial marriages between Caucasians and African Americans. Notably, the Court did not frame the issue of interracial marriage as a “new” right, but recognized the fundamental right to marry regardless of that “traditional” classification.
Unfortunately, the courts have failed to recognize the breadth of our Due Process rights before in cases such as Bowers. 478 U.S. at 186, overruled by Lawrence, 539 U.S. at 578. There, the court narrowly framed the issue as “whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy . . . .” Id. at 190. Not surprisingly, with the issue framed so narrowly and applying only to a small classification of people, the Court found that there was no fundamental right at issue because our history and tradition proscribed such conduct. Id. at 192-94. In 2003, the Supreme Court recognized its error and reversed course. Lawrence, 539 U.S. at 567 (finding that the Bowers Court’s statement of the issue “discloses the Court’s own failure to appreciate the extent of the liberty interest at stake.”). The court found that the sodomy laws violated plaintiffs’ Due Process right to engage in such conduct and intruded into “the personal and private life of the individual.” Id. at 578. Notably, the Court did not limit the right to a classification of certain people who had historical access to that right.
Here, Plaintiffs are not asking the court to recognize a new right; but rather, “[t]hey seek ‘simply the same right that is currently enjoyed by heterosexual individuals: the right to make a public commitment to form an exclusive relationship and create a family with a partner with whom the person shares an intimate and sustaining emotional
18

bond.’” Bostic, 970 F. Supp. 2d at 472 (quoting Kitchen, 961 F. Supp. 2d at 1202-03). The courts have routinely protected the choices and circumstances defining sexuality, family, marriage, and procreation. As the Supreme Court found in Windsor, “[m]arriage is more than a routine classification for purposes of certain statutory benefits,” and “[p]rivate, consensual intimacy between two adult persons of the same sex . . . can form ‘but one element in a personal bond that is more enduring.’” Windsor, 133 S. Ct. at 2693 (quoting Lawrence, 539 U.S. at 567). The court concludes that the right to marry should not be interpreted as narrowly as Defendants urge, but rather encompasses the ability of same-sex couples to marry.
2. Level of Scrutiny The level of scrutiny describes how in depth the court must review the Defendants’ proffered reasons for a law. Scrutiny ranges from rational basis (the most deferential to the State) to strict scrutiny (the least deferential to the State). Defendants agree that if the court finds that the fundamental right to marry encompasses same-sex marriages, then heightened scrutiny is appropriate. (Transcript 40:9-17). “When a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests.” Zablocki, 434 U.S. at 388. Strict scrutiny requires the government to show that the law is narrowly tailored to a compelling government interest. See id. The burden to show the constitutionality of the law rests with the Defendants. See id.
19

For strict scrutiny to be appropriate, the court must find: (1) there is a fundamental right, and (2) the classification significantly interferes with the exercise of that right. Id. First, as stated above, the court finds that the fundamental right to marry includes the right of the individual to marry a person of the same sex. Second, Section 31-11-1-1 significantly interferes with that right because it completely bans the Plaintiffs from marrying that one person of their choosing. Therefore, Indiana’s marriage laws are subject to strict scrutiny. See Bostic, 970 F. Supp. 2d at 473.
3. Application Section 31-11-1-1, classifying same-sex couples, “cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests.” Zablocki, 434 U.S. at 388. Here, Defendants proffer that the state’s interest in conferring the special benefit of civil marriage to only one man and one woman is justified by its interest in encouraging the couple to stay together for the sake of any unintended children that their sexual union may create. The court does not weigh whether or not this is a sufficiently important interest, but will assume that it is. Defendants have failed to show that the law is “closely tailored” to that interest. Indiana’s marriage laws are both over- and under-inclusive. The marriage laws are under-inclusive because they only prevent one subset of couples, those who cannot naturally conceive children, from marrying. For example, the State’s laws do not consider those post-menopausal women, infertile couples, or couples that do not wish to have children. Additionally, Indiana specifically allows first cousins to marry once they reach the age that procreation is not a realistic possibility. See Ind. Code § 31-11-1-2.
20

On the other hand, Indiana’s marriage laws are over-inclusive in that they prohibit some opposite-sex couples, who can naturally and unintentionally procreate, from marriage. For example, relatives closer in degree than second cousins can naturally and unintentionally procreate; however, they still may not marry.4 Most importantly, excluding same-sex couples from marriage has absolutely no effect on opposite-sex couples, whether they will procreate, and whether such couples will stay together if they do procreate. Therefore, the law is not closely tailored, and the Defendants have failed to meet their burden.
The state, by excluding same-sex couples from marriage, violates Plaintiffs’ fundamental right to marry under the Due Process Clause. See Wolf, 2014 WL 2558444, at * 21; Lee v. Orr, No. 1:13-cv-08719, 2014 WL 683680, * 2 (N.D. Ill. Feb. 21, 2014) (“This Court has no trepidation that marriage is a fundamental right to be equally enjoyed by all individuals of consenting age regardless of their race, religion, or sexual orientation.”); Whitewood, 2014 WL 2058105 at ** 8-9; Latta, 2014 WL 1909999 at * 13; DeLeon, 975 F. Supp. 2d at 659; Bostic, 970 F. Supp. 2d at 483; Kitchen, 961 F. Supp. 2d at 1204.
B. Equal Protection Clause Plaintiffs also argue that Section 31-11-1-1 violates the Fourteenth Amendment’s Equal Protection Clause. The Equal Protection Clause “commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is
4 The court does not evaluate the constitutionality of such laws, but merely uses this example to show that the present law would be over-inclusive in regard to Defendants’ stated reason for marriage.
21

essentially a direction that all persons similarly situated should be treated alike.” City of

Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985) (quoting U.S. Const.,

amend. XIV., § 1). The clause must take into account the fact that governments must

draw lines between people and groups. See Romer, 517 U.S. at 631.

1.

Level of Scrutiny

“[I]f a law neither burdens a fundamental right nor targets a suspect class, [the

court] will uphold the legislative classification so long as it bears a rational relation to

some legitimate end.” Romer, 517 U.S. at 631. The court must “insist on knowing the

relation between the classification adopted and the object to be attained.” Id. at 632.

This is to ensure that the classification was not enacted for the purpose of disadvantaging

the group burdened by the law. See id. at 633. If a law “impermissibly interferes with

the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect

class” then the court applies strict scrutiny. See Zablocki, 434 U.S. at 383. To survive

strict scrutiny, Indiana must show that the law is narrowly tailored to a compelling

government interest. See id. at 388. As indicated in Part V.A. above, the court finds that

the law impermissibly interferes with a fundamental right, and Defendants failed to

satisfy strict scrutiny. Nevertheless, the court will evaluate the Equal Protection claim

independent from that conclusion and as an alternative reason to find the marriage law

unconstitutional.

a. Form of Discrimination

Plaintiffs argue that Indiana’s marriage laws discriminate against individuals on

the basis of gender and sexual orientation. 22

i. Gender According to Plaintiffs, Indiana’s marriage laws discriminate against them based on their gender. For example, if Rae Baskin was a man she would be allowed to marry Esther Fuller; however, because she is a female, she cannot marry Esther. Additionally, Plaintiffs allege the law enforces sex stereotypes, requiring men and women to adhere to traditional marital roles. See e.g., J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994). Defendants respond that the laws do not discriminate on the basis of gender because the laws do not affect any gender disproportionately. Plaintiffs respond that a mere equal application of the law was rejected by the Court in Loving. The court is not persuaded by Plaintiffs’ arguments and finds Loving to be distinguishable on this point. Unlike Loving, where the court found evidence of an invidious racial discrimination, the court finds no evidence of an invidious gender-based discrimination here. See Geiger, 2014 WL 2054264 at * 7. Moreover, there is no evidence that the purpose of the marriage laws is to ratify a stereotype about the relative abilities of men and women or to impose traditional gender roles on individuals. See id.; see also Bishop, 962 F. Supp. 2d at 1286.
ii. Sexual Orientation Plaintiffs also argue that Indiana’s marriage laws classify individuals based on their sexual orientation, because they prevent all same-sex couples from marrying the person of their choice. Defendants respond that the marriage laws do not discriminate against same-sex couples because they may marry just like opposite-sex couples may marry; the law merely impacts them differently. The court rejects this notion. As the
23

court stated above, the right to marry is about the ability to form a partnership, hopefully lasting a lifetime, with that one special person of your choosing. Additionally, although Indiana previously defined marriage in this manner, the title of Section 31-11-1-1 – “Same sex marriages prohibited” – makes clear that the law was reaffirmed in 1997 not to define marriage but to prohibit gays and lesbians from marrying the individual of their choice. Thus, the court finds that Indiana’s marriage laws discriminate based on sexual orientation.
b. Level of Scrutiny The Seventh Circuit applies rational basis review in cases of discrimination based on sexual orientation. See Schroeder v. Hamilton Sch. Dist., 282 F.3d 946, 950-51 (7th Cir. 2002) (“Homosexuals are not entitled to any heightened protection under the Constitution.”). The Seventh Circuit relied on Bowers and Romer for this conclusion. Plaintiffs argue that since Bowers has since been overruled, the court is no longer bound by Schroeder. The court disagrees and believes it is bound to apply rational basis because one of the cases the Court relied on in Schroeder, e.g. Romer, is still valid law. The court agrees with Plaintiffs that it is likely time to reconsider this issue, especially in light of the Ninth Circuit’s decision in SmithKline Beecham Corp. v. Abbott Labs, 740 F.3d 471, 481 (9th Cir. 2014) (interpreting Windsor to mean that gay and lesbian persons constitute a suspect class). However, the court will leave that decision to the Seventh Circuit, where this case will surely be headed. The court will, therefore, apply rational basis review.
24

c.

Application

Defendants rely on Johnson v. Robison for the proposition that “when . . . the

inclusion of one group promotes a legitimate governmental purpose, and the addition of

other groups would not, we cannot say that the statute’s classification of beneficiaries and

nonbeneficiaries is invidiously discriminatory.” 415 U.S. 361, 383 (1974). According to

Defendants, Johnson means that they must only show that there is a rational reason to

provide the right of marriage to opposite-sex couples, not that there is a rational basis to

exclude. In essence, Defendants assert that the opposite-sex couples have distinguishing

characteristics, the ability to naturally and unintentionally procreate as a couple, that

allow the State to treat them differently from same-sex couples.

Plaintiffs, on the other hand, allege that the primary purpose of the statute is to

exclude same-sex couples from marrying and thus the Defendants must show a rational

basis to exclude them. The court agrees with Plaintiffs. According to Plaintiffs, the

purpose is evident by the timing of the statute, which was passed in an emergency session

near the time that DOMA was passed and immediately after and in response to a

Hawaiian court’s pronouncement in Baehr v. Miike, CIV. No. 91-1394, 1996 WL 694235

(Haw. Cir. Ct. Dec. 3, 1996), aff’d 950 P.2d 1234 (Haw. 1997), that same-sex couples

should be allowed to marry. See Family Law – Marriage – Same Sex Marriages Void,

1997 Ind. Legis. Serv. P.L. 198-1997 (H.E.A. 1265). Because the effect of the law is to

exclude and void same-sex marriages, the Plaintiffs argue that the court should analyze

whether there is a rational basis to exclude same-sex marriages. Additionally, Plaintiffs

25

assert they are similar in all relevant aspects to opposite-sex couples seeking to marry– they are in long-term, committed, loving relationships and some have children.
The Johnson case concerned a challenge brought by a conscientious objector seeking to declare the educational benefits under the Veterans’ Readjustment Benefits Act of 1966 unconstitutional on Equal Protection grounds. 415 U.S. at 364. In reviewing whether or not the classification was arbitrary, the Court looked to the purpose of that Act and found that the legislative objective was to (1) make serving in the Armed Forces more attractive and (2) assist those who served on active duty in the Armed Forces in “readjusting” to civilian life. See id. at 376-377. The Court found that conscientious objectors were excluded from the benefits that were offered to the veterans because the benefits could not make service more attractive to a conscientious objector and the need to readjust was absent. See id. The Supreme Court found that the two groups were not similarly situated and thus, Congress was justified in making that classification. See id. at 382-83.
The court agrees with Plaintiffs that they are similarly situated in all relevant aspects to opposite-sex couples for the purposes of marriage. Also of great importance is the fact that unlike the statute at issue in Johnson, “[m]arriage is more than a routine classification for purposes of certain statutory benefits.” Windsor, 133 S. Ct. at 2693. In fact having the status of “married” comes with hundreds of rights and responsibilities under Indiana and federal law. See 614 Reasons Why Marriage Equality Matters in Indiana, Fujii, Filing No. 46-2). As the court in Kitchen stated in analyzing the Equal Protection claim before it:
26

[T]he State poses the wrong question. The court’s focus is not on whether extending marriage benefits to heterosexual couples serves a legitimate governmental interest. No one disputes that marriage benefits serve not just legitimate, but compelling governmental interests, which is why the Constitution provides such protection to an individual’s fundamental right to marry. Instead, courts are required to determine whether there is a rational connection between the challenged statute and a legitimate state interest. Here, the challenged statute does not grant marriage benefits to opposite-sex couples.5 The effect of [Utah’s marriage ban] is only to disallow same-sex couples from gaining access to these benefits. The court must therefore analyze whether the State’s interests in responsible procreation and optimal child-rearing are furthered by prohibiting same-sex couples from marrying.
961 F. Supp. 2d at 1210-11 (reference and footnote added). Like Utah’s laws, the effect
of Indiana’s marriage laws is to exclude certain people from marrying that one special
person of their choosing. This is evident by the title of Section 31-11-1-1 – “Same sex
marriages prohibited.” Consequently, the question is whether it is rational to treat same-
sex couples differently by excluding them from marriage and the hundreds of rights that
come along with that marriage. See e.g. City of Cleburne, Tex., 473 U.S. at 449.
The court finds that there is no rational basis to exclude same-sex couples. The
purpose of marriage – to keep the couple together for the sake of their children – is
served by marriage regardless of the sexes of the spouses. In order to fit under Johnson’s
5 Section 30–1–4.1 of the Utah Code, provides: (1) (a) It is the policy of this state to recognize as marriage only the legal union of a man and a woman as provided in this chapter. (b) Except for the relationship of marriage between a man and a woman recognized pursuant to this chapter, this state will not recognize, enforce, or give legal effect to any law creating any legal status, rights, benefits, or duties that are substantially equivalent to those provided under Utah law to a man and woman because they are married. Amendment 3 provides: “(1) Marriage consists only of the legal union between a man and a woman. (2) No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect.”
27

rationale, Defendants point to the one extremely limited difference between opposite-sex and same-sex couples, the ability of the couple to naturally and unintentionally procreate, as justification to deny same-sex couples a vast array of rights. The connection between these rights and responsibilities and the ability to conceive unintentionally is too attenuated to support such a broad prohibition. See Romer, 517 U.S. at 635. Furthermore, the exclusion has no effect on opposite-sex couples and whether they have children or stay together for those children. Defendants proffer no reason why excluding same-sex couples from marriage benefits opposite-sex couples. The court concludes that there simply is no rational link between the two. See Tanco, 2014 WL 997525 at * 6; see also Bishop, 962 F. Supp. 2d at 1290-93 (finding there is no rational link between excluding same-sex marriages and “steering ‘naturally procreative’ relationships into marriage, in order to reduce the number of children born out of wedlock and reduce economic burdens on the State); see also DeBoer, 973 F. Supp. 2d at 771-72 (noting that prohibiting same-sex marriages “does not stop [gay men and lesbian women] from forming families and raising children. Nor does prohibiting same-sex marriage increase the number of heterosexual marriages or the number of children raised by heterosexual parents.”). VI. Recognition of Out-of-state Marriages
Defendants concede that whether Indiana can refuse to recognize out-of-state, same-sex marriages turns entirely on whether Indiana may enforce Section A. Because the court finds that Indiana may not exclude same-sex couples from marriage, the court also finds it cannot refuse to recognize out-of-state, same-sex marriages. See e.g. Loving,
28

388 U.S. at 4, 11. Nevertheless, the court finds that Section B violates the Equal Protection Clause independent of its decision regarding Section A.
The parties agree that out-of-state, same-sex marriages are treated differently than out-of-state, opposite-sex marriages. Thus, the question is whether that difference violates the Equal Protection Clause. In Windsor, the Supreme Court concluded that by treating same-sex married couples differently than opposite-sex married couples, Section 3 of DOMA “violate[d] basic due process and equal protection principles applicable to the Federal Government.” 133 S. Ct. at 2693. The Eastern District of Kentucky found two guiding principles from Windsor that strongly suggest the result here. See Bourke v. Beshear, No. 3:13-cv-750-H, 2014 WL 556729, * 7 (W.D. Ky. Feb 12, 2014). First, the court should look to the actual purpose of the law. Id. The second principle is that such a law “demeans the couple, whose moral and sexual choices the Constitution protects.” Id. (quoting Windsor, 133 S. Ct. at 2694).
The purpose of the law is to prevent the recognition of same-sex marriage in Indiana, which Plaintiffs assert was motivated by animus. If Section 31-11-1-1 was in fact motivated by animus, it violates the principles of the Equal Protection Clause. See Romer, 517 U.S. at 633-35 (“[I]f the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate state interest.”) (emphasis in original) (quoting Dep’t of Agriculture v. Moreno, 413 U.S. 528, 534 (1973)). Section 31-11-1-1, like DOMA, was passed during the time that Hawaii courts were deciding whether the United States Constitution required it to allow same-sex marriages.
29

According to the bill’s author, his “intent [was] to clarify present Indiana law and strengthen it.” Barb Albert, Same-sex Marriage Takes Hit in Senate, Indianapolis Star, Feb. 11, 1997, at B2. He did not see the statute as denying rights, because he considered marriage to be a privilege, rather than a right. Id. Opponents of the bill saw it as “inflaming the biases and prejudices of individuals,” “thumbing your nose” at the Constitution, and “legislat[ing] hate.” Id.; see also Stuart A. Hirsch, Ban on Gay Marriages to go to Governor, Indianapolis Star, Apr. 26, 1997, at B1.
Additionally, Section 31-11-1-1 is an unusual law for Indiana to pass. As described above, in Indiana “[t]he validity of a marriage depends upon the law of the place where it occurs.” This includes recognizing marriages between first cousins despite the fact that they cannot marry in Indiana unless they are over 65 years of age. See Mason v. Mason, 775 N.E.2d 706, 709 (Ind. Ct. App. 2002). The State of Indiana chose one group to single out for disparate treatment. The State’s laws place same-sex marriages in a second class category, unlike other marriages performed in other states. Thus, like the Supreme Court in Windsor, this court can conclude that this law is motivated by animus, thus violating the Equal Protection Clause.
Even if it were not, the law fails rational basis review. Defendants proffer that the state refuses to recognize same-sex marriages because it conflicts with the State’s philosophy of marriage – that is that marriage is to ameliorate the consequences of unintended children. Recognizing the valid same-sex marriages performed in other states, however, has no link whatsoever to whether opposite-sex couples have children or stay together for those children. Thus, there is no rational basis to refuse recognition and
30

void out-of-state, same-sex marriages. Therefore, Part B violates the Fourteenth Amendment’s Equal Protection Clause. See Tanco v. Haslem, No. 3:13-cv-01159, 2014 WL 997525 (M.D. Tenn. Mar. 14, 2014); see also Bourke, 2014 WL 556729. VII. Conclusion
The court has never witnessed a phenomenon throughout the federal court system as is presented with this issue. In less than a year, every federal district court to consider the issue has reached the same conclusion in thoughtful and thorough opinions – laws prohibiting the celebration and recognition of same-sex marriages are unconstitutional. It is clear that the fundamental right to marry shall not be deprived to some individuals based solely on the person they choose to love. In time, Americans will look at the marriage of couples such as Plaintiffs, and refer to it simply as a marriage – not a samesex marriage. These couples, when gender and sexual orientation are taken away, are in all respects like the family down the street. The Constitution demands that we treat them as such. Today, the “injustice that [we] had not earlier known or understood” ends. Windsor, 133 S. Ct. at 2689 (citing Marriage Equality Act, 2011 N.Y. Laws 749). Because “[a]s the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” Lawrence, 539 U.S. at 579.
Therefore, the court finds as follows: 1. The Baskin Plaintiffs’ motion for summary judgment (No. 1:14-cv-355, Filing No.
38) is GRANTED; 2. The Baskin Defendants’ motion for summary judgment (No. 1:14-cv-355, Filing
No. 55) is DENIED; 31

3. The Baskin Plaintiffs’ motion to consolidate preliminary injunction proceedings with final trial on the merits (No. 1:14-cv-355, Filing No. 37) and the Baskin Defendants’ motion for stay of the preliminary injunction (No. 1:14-cv-355, Filing No. 68) are DENIED as moot.
4. The Fujii Plaintiffs’ motion for summary judgment (No. 1:14-cv-404, Filing No. 33) is GRANTED in part for all Defendants except Governor Pence and DENIED in part as to Governor Pence;
5. The Fujii Defendants’ motion for summary judgment (No. 1:14-cv-404, Filing No. 44) is GRANTED in part for Governor Pence and DENIED in part for the other Defendants;
6. The Fujii Plaintiffs’ motion for preliminary injunction (No. 1:14-cv-404, Filing No. 23) and motion to consolidate preliminary injunction proceedings with final trial on the merits (No. 1:14-cv-404, Filing No. 24) are DENIED as moot.
7. The Lee Plaintiffs’ motion for summary judgment (No. 1:14-cv-406, Filing No. 27) is GRANTED in part for all Defendants except Governor Pence and DENIED in part as to Governor Pence;
8. The Lee Defendants’ motion for summary judgment (No. 1:14-cv-406, Filing No. 41) is GRANTED in part for Governor Pence and DENIED in part for the other Defendants;
9. The Lee Plaintiffs’ motion for preliminary injunction (No. 1:14-cv-406, Filing No. 29), motion to consolidate preliminary injunction proceedings with final trial on
32

the merits (No. 1:14-cv-406, Filing No. 31), and the Lee Defendants’ motion for extension of time (No. 1:14-cv-406, Filing No. 53) are DENIED as moot.
ORDER Pursuant to the reasoning contained above, the court DECLARES that Indiana Code § 31-11-1-1(a), both facially and as applied to Plaintiffs, violates the Fourteenth Amendment’s Due Process Clause and Equal Protection Clause. Additionally, the court DECLARES that Indiana Code § 31-11-1-1(b), both facially and as applied to Plaintiffs, violates the Fourteenth Amendment’s Equal Protection Clause. Because this is a facial challenge, same-sex couples, who would otherwise qualify to marry in Indiana, have the right to marry in Indiana. Having found that Indiana Code § 31-11-1-1 and the laws in place enforcing such violate the Plaintiffs’ rights under the Due Process Clause and the Equal Protection Clause, Defendants and their officers, agents, servants, employees and attorneys, and those acting in concert with them are PERMANENTLY ENJOINED from enforcing Indiana Code Section 31-11-1-1 and other Indiana laws preventing the celebration or recognition of same-sex marriages. Additionally, Defendants and officers, agents, servants, employees and attorneys, and those acting in concert with them, are PERMANENTLY ENJOINED from enforcing or applying any other state or local law, rule, regulation or ordinance as the basis to deny marriage to same-sex couples otherwise qualified to marry in Indiana, or to deny married same-sex couples any of the rights, benefits, privileges, obligations, responsibilities, and immunities that accompany marriage in Indiana.
33

Specifically, this permanent injunction requires the following, and the court ORDERS the following:
1. The Defendant Clerks, their officers, agents, servants, employees and attorneys, and all those acting in concert with them, are PERMANENTLY ENJOINED from denying a marriage license to a couple because both applicants for the license are the same sex. Thus they must act pursuant to their authority under Indiana Code Chapter 31-11-4 and issue marriage licenses to couples who, but for their sex, satisfy all the requirements to marry under Indiana law;
2. The Attorney General, Greg Zoeller, his officers, agents, servants, employees and attorneys, and all those acting in concert with them, are PERMANENTLY ENJOINED from prosecuting or assisting in the prosecution, using his authority from Indiana Code § 4-6-1-6, of the following: a. same-sex couples who fill out the current marriage license application where the spaces provided only allow for a male and female (Ind. Code §§ 31-11-11-1 and 31-11-11-3), b. clerks who grant the marriage licenses to qualified same-sex couples (Ind. Code § 31-11-11-4), or c. those who choose to solemnize same-sex marriages (Ind. Code §§ 3111-11-5 and 31-11-11-7). .
3. William C. Vanness II, M.D., the Commissioner of the Indiana State Department of Health, his officers, agents, servants, employees and attorneys, 34

and all those acting in concert with them, are PERMANENTLY ENJOINED to:
a. Act pursuant to their authority under Indiana Code § 16-37-1 to change the death certificate form to allow for same-sex spouses,
b. Act pursuant to their authority under Indiana Code § 16-37-3 to issue death certificates listing same-sex spouses, and
c. Act pursuant to their authority under Indiana Code § 31-11-4-4 to revise the marriage license application to allow for same-sex applicants.
4. The Commissioner of the Indiana State Department of Revenue, his officers, agents, servants, employees and attorneys, and all those acting in concert with them, are PERMANENTLY ENJOINED to exercise their authority under Indiana Code § 6-8.1-3 to revise the filing guidelines to allow and process joint tax returns for same-sex married couples as they do for opposite-sex married couples.
5. The Board of Trustees of the Indiana Public Retirement System and Steve Russo, the Executive Director of the Indiana Public Retirement System, and their officers, agents, servants, employees and attorneys, and all those acting in concert with them, are PERMANENTLY ENJOINED to administer the Pension Fund pursuant to Indiana Code Chapters 5-10.5-3, 5-10.5-4, and 510.5-6, so as to provide the same benefits for all married couples, regardless of whether the couples are of the opposite sex or the same sex.
35

This Order does not apply to Governor Pence, who the court found was not a proper party. This Order takes effect on the 25th day of June 2014. SO ORDERED this 25th day of June 2014.
sR/_IR_C_iH_ch_A_aR_r_dD_L_L_.._YY_o_Ou_nU_g_N__G____,__C___H___I_E__F____J__U__D____G__E_ URnIiCteHdASRtaDteLs.DYiOstUriNctGC, oCuHrtIEF JUDGE SUountihteedrnStDatiesstrDicitstorifctInCdoiuarnta
Southern District of Indiana
Distributed Electronically to Registered Counsel of Record.
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 Case 1:14-cv-00404-RLY-TAB Document 22 Filed 04/03/14 Page 1 of 25 PageID #: 94

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

MIDORI FUJII,

)

MELODY LAYNE and TARA BETTERMAN, )

SCOTT and RODNEY MOUBRAY-CARRICO, )

MONICA WEHRLE and HARRIET MILLER, )

GREGORY HASTY and CHRISTOPHER

)

VALLERO,

)

ROB MACPHERSON and STEVEN STOLEN, )

L.M.-C., by his next friends and parents, SCOTT )

and RODNEY MOUBRAY-CARRICO,

)

A.M.-S., by her next friends and parents

)

ROB MACPHERSON and STEVEN STOLEN, )

)

Plaintiffs,

)

)

v.

)

)

GOVERNOR, STATE OF INDIANA, in his

)

official capacity,

)

COMMISSIONER, INDIANA STATE

)

DEPARTMENT OF REVENUE, in his official )

capacity,

)

COMMISSIONER, INDIANA STATE

)

DEPARTMENT OF HEALTH, in his official

)

capacity,

)

CLERK, ALLEN COUNTY, INDIANA, in her )

official capacity,

)

CLERK, HAMILTON COUNTY, INDIANA, in )

her official capacity,

)

)

Defendants.

)

No. 1:14-cv-404 RLY-TAB

Amended Complaint for Declaratory and Injunctive Relief – Notice of Claim that Indiana Statute is Unconstitutional

Introduction

1. Plaintiffs bring this action to challenge the constitutionality of Indiana Code § 31-11-1-1.

The statute excludes same sex couples from marriage and voids within Indiana the marriages of

same-sex couples lawfully entered into in other states. The plaintiffs consist of a number of

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persons who are severely burdened because of the above statute. Plaintiff Midori Fujii is a widow whose same-sex spouse died in October of 2011 after three years in a marriage that was solemnized in a state recognizing same-sex unions. However, because Indiana law does not recognize such unions, she is not provided the protections afforded widows under Indiana law. This significantly disadvantages her. Plaintiffs Monica Wehrle and Harriet Miller and Gregory Hasty and Christopher Vallero are lesbian and gay couples in loving and committed relationships who wish to marry in Indiana for the same reasons that opposite-sex couples marry – to publicly declare their love and commitment and to give one another the security and protection that only marriage provides. However, they cannot do so because of the challenged statute. Melody Layne and Tara Betterman and Rob MacPherson and Steven Stolen are lesbian and gay couples who have married in other jurisdictions where same-sex marriages are lawful but whose marriages are deemed void by the challenged law so that they are treated as legal strangers and denied the significant benefits, both tangible and intangible, that Indiana bestows on married persons. At the time that their initial complaint was filed, Scott and Rodney Moubray-Carrico were a gay couple who wished to marry; they are being married on today’s date in Maryland, where same-sex marriages are lawful, and desire that that marriage be recognized in Indiana. Scott and Rodney Moubray-Carrico are the parents and next friends of their minor child and plaintiff, L.M.-C., and Rob MacPherson and Steven Stolen are the parents and next friends of their minor child and plaintiff, A.M.-S. The fact that their parents are not permitted to marry or to have their marriages recognized in Indiana materially harms the children, stigmatizes them, and denies their families the legal protections, security, and social support that only marriage provides. Indiana Code § 31-11-1-1 is unconstitutional as violating both due process and equal protection as secured by the Fourteenth Amendment to the United States Constitution.
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Appropriate injunctive and declaratory relief is therefore requested. Jurisdiction, venue, cause of action 2. This Court has jurisdiction of this case pursuant to 28 U.S.C. §§ 1331 and 1343. 3. Venue is proper in this district pursuant to 28 U.S.C. § 1391. 4. Declaratory relief is authorized by 28 U.S.C. §§ 2201 and 2202 and by Rule 57 of the Federal Rules of Civil Procedure. 5. Plaintiffs bring this action pursuant to 42 U.S.C. § 1983 to redress the deprivation, under color of state law, of rights secured by the Constitution of the United States. Parties 6. Midori Fujii is an adult resident of Hamilton County, Indiana. 7. Melody Layne and Tara Betterman are adult residents of Marion County, Indiana. 8. Scott and Rodney Moubray-Carrico are adult residents of Floyd County, Indiana. 9. Monica Wehrle and Harriet Miller are adult residents of Allen County, Indiana. 10. Gregory Hasty and Christopher Vallero are adult residents of Hamilton County, Indiana. 11. Rob MacPherson and Steven Stolen are adult residents of Marion County, Indiana. 12. L.M.-C. is a minor child and lives with his parents and next friends Scott and Rodney Moubray-Carrico. He is proceeding by his initials pursuant to F.R.Civ.P. 5.2(a)(3). 13. A.M.-S. is a minor child and lives with her parents and next friends Rob MacPherson and Steven Stolen. She is proceeding by her initials pursuant to F.R.Civ.P. 5.2(a)(3). 14. The Governor of the State of Indiana is the duly elected chief executive of the State of Indiana. He is sued in his official capacity and is designated by official title pursuant to Fed.R.Civ.P. 17(d). 15. The Commissioner, Indiana Department of Revenue is the duly appointed director of that
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agency. He is sued in his official capacity and is designated by official title pursuant to Fed.R.Civ.P. 17(d). 16. The Commissioner, Indiana State Department of Health is the duly appointed director of Indiana’s health agency. He is sued in his official capacity and is designated by official title pursuant to Fed.R.Civ.P. 17(d). 17. The Clerk of Allen County is the duly elected Clerk of that county. She is sued in her official capacity and is designated by official title pursuant to Fed.R.Civ.P. 17(d). 18. The Clerk of Hamilton County is the duly elected Clerk of that county. She is sued in her official capacity and is designated by official title pursuant to Fed.R.Civ.P. 17(d). Legal background 19. Indiana Code § 31-11-1-1 provides:
(a) Only a female may marry a male. Only a male may marry a female. (b) A marriage between persons of the same gender is void in Indiana even if the marriage is lawful in the place where it is solemnized. 20. As a result of the challenged law, marriage in Indiana is legally available only to opposite-sex couples. Same-sex couples may not marry in Indiana, and if they are married in other states, their marriages are not recognized in Indiana. 21. Pursuant to Indiana law, Indiana Code § 31-11-4-4, the State Department of Health is required to develop the form for applications for marriage licenses. The form adopted by the State Department of Health is attached to this Complaint as Exhibit 1. 22. The application currently has information only for the “Male Applicant” and the “Female Applicant.” It is therefore impossible for a same-sex couple to complete the form. The form notes that furnishing false information in completing the form is a felony. 23. Under Indiana law the Clerk of each County is required to issue marriage licenses to
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eligible couples who complete the application. Ind. Code § 31-11-4-1, et seq. The Clerk is precluded from issuing a license to persons who do not have the authority to marry each other under, among other things, Indiana Code § 31-11-1-1. Ind. Code § 31-11-4-2. 24. The Executive Power of the State of Indiana is vested in the Governor. Ind. Const. art. 5, § 1. As such, the Governor appoints the heads of, and is ultimately in charge of, numerous state agencies. Factual allegations
Midori Fujii 25. Plaintiff Midori Fujii ("Midori"), lived in a committed relationship with Kristie Kay Brittain ("Kris") from 2000 until Kris's death in October, 2011. 26. Midori and Kris met in 1997 when both were serving on the Board of Directors of a local non-profit organization. They developed a strong friendship that, after a few years, grew into a life-long, committed relationship and then marriage. 27. Their lives together revolved around family, friends and their beloved pets. They were self-described “foodies” who enjoyed both going out to different restaurants and trying out new recipes at home. They would pick up food magazines like Bon Appetite or Gourmet, go to kitchen stores like Williams Sonoma or Sur La Table, or watch Food Network and get inspired for a “project” to either cook something or go in search of a restaurant. They also loved travel with family and friends, and often combined their love of travel and food to search out new dishes to re-create at home. 28. Midori and Kris married in Los Angeles, California in the summer of 2008. 29. In March 2009, Kris was diagnosed with ovarian cancer. During her fight with cancer, she went through two major surgeries, several hospitalizations, multiple courses of
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chemotherapy, and numerous tests and doctor's appointments. Midori was her primary caregiver throughout. Midori initially used her sick leave and paid time off to take care of Kris, but as Kris’s medical care needs increased, Midori began to work from home when possible and she took unpaid leaves of absence. 30. Because of Indiana’s marriage discrimination statute, Midori and Kris were considered unmarried and did not have the protections and decision-making authority they automatically would have been given by statute had they been an opposite-sex couple married in California and living in Indiana. They had an attorney draft expensive documents, including wills and powers of attorney, to ensure Midori could care for Kris, make medical decisions as needed and inherit property from her spouse. Throughout Kris’s battle with cancer the couple was always a little on guard going to the doctors and hospitals and they lived with the added emotional stress of constantly being apprehensive about how they as a lesbian couple they would be treated by health care providers. 31. While Kris was suffering the physical and emotional pain of end stage cancer, she had the additional burden of worrying about how Midori would manage financially after she was gone. The attorney with whom the couple consulted was able to provide some protections, such as a will to ensure that Kris's wishes to leave her property to Midori would be honored. But there was nothing the attorney could do to establish most of the legal protections that are available to widows and widowers. 32. Because Midori's marriage to Kris is not recognized in Indiana, Midori was required to pay more than $300,000.00 in Indiana inheritance tax on all of the property that Kris left to her, including their shared home. If Midori were an opposite sex spouse she would have paid no inheritance tax on the property she inherited from Kris. And unless their marriage is
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recognized in Indiana, Midori will not be eligible to receive Kris's social security benefits when she turns 65. Because Kris was the family’s primary breadwinner, if Midori could draw on Kris’s social security, as an opposite sex spouse could, Midori would have more financial security in retirement. 33. If Midori’s marriage to Kris was now recognized in Indiana as valid she could file the necessary proceedings in Indiana to have the inheritance tax refunded to her. 34. Indiana's refusal to recognize her marriage to Kris does not just cause Midori economic hardship. In her time of grief, she is denied the comfort and dignity of being acknowledged as Kris's widow. For example, following Kris’s death in 2011, Midori experienced problems with a funeral director because she was not considered to be a surviving spouse.
Melody Layne and Tara Betterman 35. Plaintiffs Melody Layne ("Melody") and Tara Betterman ("Tara") of Indianapolis have lived together in a committed relationship for nearly 5 years. They met through a mutual friend. 36. Melody, 37, is a lifelong Indiana resident, born and raised in Greenwood. Tara, 44, grew up in New York and Florida and moved to Indiana in the late 1990s to be near her twin brother. Melody works in business development for John Wiley & Sons, a publishing company. Tara is the owner and CEO of a property management company in Indianapolis where she employees 12 people. 37. Melody and Tara share their home in Indianapolis with Melody’s 5 year old biological daughter. Although Tara does not have a legal relationship with the child, she is a parent in every practical respect and their daughter understands that they are family. 38. Melody and Tara strongly support each other. They share finances and responsibility for
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their property, including the home they share. 39. In 2012, Melody and Tara married in Central Park in New York City. They would have preferred to marry in their home state but are prohibited from doing so by Indiana’s marriage discrimination statute. 40. Because their marriage is not recognized in their home state of Indiana, Melody and Tara have gone to considerable expense to have an attorney draw up documents, such as health care and general powers of attorney, to try to protect themselves. They understand, however, that this affords them only a fraction of the protections that come with marriage and they are concerned that those papers will not be honored in a crisis. They also still must incur the added expense of having wills drafted to provide the right to inherit from one another they would receive automatically by statute if their marriage were recognized. 41. They also suffer additional financial harms and burdens opposite sex married couples do not endure. For example, because IRS recognizes their marriage but Indiana does not, they must complete three separate federal tax returns for 2013 – one joint return as a married couple to file and two individual returns to be used to transfer information to the separate Indiana state income tax returns they must file. 42. If Melody and Tara were an opposite sex couple their New York marriage would be recognized in Indiana and they would be treated as a married couple under Indiana law. 43. The recognition and legitimacy that marriage provides to them means the world to Melody and Tara when they get to experience it. When they married in New York they felt happy and free every time they were recognized as a legal couple. They feel the loss of that freedom every time they return home to Indiana after travelling in a state where their marriage is respected.
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44. For Tara and Melody, the cost of continuing to live in Indiana to be close to family was to be effectively "unmarried" and, thus, considered less of a family in the eyes of the state. Melody and Tara would like their marriage to be recognized in Indiana not only because of the concrete protections it would provide to them and their daughter, but also because being treated as an unmarried couple disrespects the commitment they have made to one another and devalues their family. They hope that their marriage will be recognized in Indiana before their daughter is old enough to be aware that the state does not consider her family deserving of the same respect afforded other families.
Scott Moubray-Carrico, Rodney Moubray-Carrico, and L.M.-C. 45. Plaintiffs Scott Moubray-Carrico ("Scott") and Rodney Moubray-Carrico ("Rodney") have lived together in a committed relationship for 12 years. Scott and Rodney live in New Albany, in Floyd County, with their son. Rodney, 47, is General Manager of a hotel. Scott, 47, is store manager of a department store. Scott and Rodney have lived in New Albany, Indiana since 2006. They both pay state income tax in Indiana. 46. Scott and Rodney have one son, plaintiff L.M.-C., who is 6. Scott adopted L.M-C. initially and Rodney later obtained a second parent adoption to establish a legal parent-child relationship with their son. 47. At the time of the filing of their initial complaint, Scott and Rodney were not married but desired to be married. They are being married in Maryland, which recognizes marriages by same-sex couples, on today’s date. 48. Scott and Rodney are very involved in their son's school and in their church, including leading a service project in their son’s school to donate money and supplies to a neglected school in an impoverished area.
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49. In 2010, Scott and Rodney both changed their last names to Moubray-Carrico, a combination of their surnames. They changed their last names through legal process after experiencing challenges in being viewed as a family while enrolling their son in pre-school. Because they cannot be married in Indiana, presenting themselves as a family to their son’s preschool caused confusion. They also hoped that changing their last names would contribute to their son’s self-esteem and sense of security by conveying the stability, permanence, and family legitimacy that his peers enjoy simply by virtue of the fact that their parents are permitted to marry in Indiana. 50. Scott and Rodney would like for Indiana to recognize their marriage in order to have the legal protections married couples rely on. Because Indiana will not recognize their marriage they are required to have expensive planning documents in order to protect themselves and one another. To secure some measure of protection, Scott prepared a Last Will & Testament and Power of Attorney. Because of the cost associated with the preparation of these documents Scott prepared his online and Rodney has not yet been able to obtain documents. But for Indiana’s marriage discrimination statute, Scott and Rodney’s marriage would be recognized in Indiana and they would receive the automatic protections given to married couples. For example, even without health care powers of attorney they could make health care decisions for one another in the event of a crisis and they could inherit property from one another through intestate succession. Rodney is fearful of how they might be treated in a time of crisis since Scott’s documents are self-prepared. And they know if tragedy were to befall Rodney, Scott would be treated as a legal stranger unable to make decisions for or perhaps even visit in a hospital the person to whom he has committed his life. 51. In addition, the failure of Indiana to recognize their marriage impacts the family
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financially. If either were to die, the survivor would be denied social security. Scott would have been entitled to no inheritance from Rodney. They must pay costly attorney fees to obtain properly drafted, enforceable documents to give them some measure of protection. 52. Scott and Rodney also want Indiana to recognize their marriage because they are concerned that their son is being taught the message that his family is less deserving of respect and support than other families. 53. Scott and Rodney meet all the requirements for Indiana to recognize their marriage, except for the fact that they are both male. 54. Scott and Rodney’s wedding ceremony today will be a small ceremony devoid of the many family and friends they have in Indiana who cannot make the trip with them. They would have preferred to marry in Indiana surrounded by family and friends, but they believe they cannot wait any longer for Indiana law to treat them equally. Rodney and Scott would like their marriage to be recognized in Indiana not only because of the concrete protections it would provide to them and their son, but also because they feel that being treated as an unmarried couple disrespects the commitment they have made to one another and devalues their family. 55. Even after their Maryland marriage, they remain legal strangers in Indiana. If they were an opposite sex couple their Maryland marriage would be recognized by Indiana and they would be treated as a married couple under Indiana law. 56. L.M-C., at age 6, is beginning to understand the concept of marriage and its unequaled role in defining family. He knows he and his parents are a family but he does not understand why his friends’ parents are allowed to marry and his parents are not. He is stigmatized and his family is demeaned by the fact that his parents are excluded from marriage. A llowing his
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parents to marry and recognizing their Maryland marriage would demonstrate that he and his family are equally worthy of respect and the substantive protections and benefits marriage provides.
Monica Wehrle and Harriet Miller 55. Monica Wehrle (“Monica”) and Harriet Miller (“Harriet”) reside in Allen County, Indiana. Monica is a native of Fort Wayne, Indiana, and Harriet, an Ohio native, has lived in Fort Wayne since 1971. 56. They are lesbians and have been a committed, loving couple since 1977. 57. Monica has B.A. and M.P.A. degrees from Indiana University. Harriet has a B.A. degree from Goucher College and was also awarded an honorary Ph.D. from Indiana University. 58. Monica and Harriet have a lengthy history of being advocates for the rights of women and, in 1977, created the Fort Wayne Women’s Bureau, a not-for-profit human services agency that provides a host of services to women and children. 59. Subsequent to creating the Fort Wayne Women’s Bureau, Monica and Harriet created “run, jane, run,” an event for amateur female athletes that was a fundraiser for the Fort Wayne Women's Bureau. By the late 1980’s "run, jane, run.” had become a separate national organization with affiliates in 15 communities across the United States. 60. The couple has a significant history of civic leadership and involvement in the Fort Wayne community. They have been active participants, both nationally and internationally, in the Gay Games. 61. During the course of their relationship as a couple they have had to expend significant sums of money to pay attorneys to create legal documents to assure that they each have the right to make medical and other important life decisions for the other person in the event of
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incapacity. If they were married, these would not be necessary. Additionally, they remain concerned that in the event one of them is hospitalized these documents will not be honored. 62. Because they are not married they are unable to own property as married persons do, as tenants by the entirety. Instead, they have had to incur legal fees to insure that in the event of one of their deaths, the property would automatically pass to the surviving person. 63. Harriet has three adult children and four grandchildren. And, between Harriet and Monica, they have many great nieces and nephews who know them only as a couple. 64. They wish to marry and wish to do so in Indiana – where they live. 65. They want their state to support their committed relationship. 66. They want their young relatives to know that their State – Indiana – supports loving couples completely, regardless of whether the couples are gay or straight. 67. At the current time they are made to feel like second-class citizens without the same rights, benefits, and privileges that heterosexual couples may attain when they marry. They wish to be treated equally. 68. They want their legacy to be honored with dignity and their heirs to be proud of who they are, with knowledge that Indiana and the United States recognizes them and their contributions as a couple and provides them with full legal rights.
Gregory Hasty and Christopher Vallero 69. Gregory Hasty and Christopher Vallero are a gay couple who live in Hamilton County, Indiana. 70. Gregory Hasty is a surgical technologist who is working on a nursing degree and Christopher Vallero, a graduate of Indiana University’s Kelly School of Business, is employed by a medical research company in Indianapolis.
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71. They have lived with each other in a committed and loving relationship for eight years. 72. They have not married although they desire to do so. 73. Gregory Hasty is a native of Indiana and wishes to be married in his home state. 74. They lead shared lives comparable to that of a married couple. However, they are denied the many benefits of marriage. 75. For example, they own their home together. But, because they are not married they do not own the property as tenants by the entirety, but as tenants in common. 76. During their relationship they have had to employ attorneys to draw up legal documents – such as medical powers of attorney – that would be completely unnecessary if they were married, as a spouse would automatically have these powers and rights. And, there is no guarantee that if an emergency arises and one of them is hospitalized they will have the proper documents with them giving the non-hospitalized partner decision-making rights or, even if the papers are there, the hospital will honor them. 77. They are looking into the possibility of adopting a child. They want to adopt a child into a family where the partners are married. They want their child to be raised by married parents in a State that recognizes the right of loving couples to wed, regardless of whether they are straight or gay. 78. In addition to the many tangible benefits that are denied to them because they are denied the right to marry, even though they are in a committed relationship, they are denied the many intangible benefits that arise from being able to show the world that they are married. They are stigmatized by Indiana’s refusal to allow them to wed.
Rob MacPherson, Steven Stolen, and AM-S 79. Rob MacPherson and Steven Stolen reside in Indianapolis.
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80. They have been a committed and loving couple for more than 25 years and were married in California in October of 2008. 81. Steven Stolen has a B.M. degree in Music Performance and a Master’s Degree in Music from the University of Michigan. He is an arts advocate and professional singer. He was a college professor for 20 years and is currently the Regional Director for Rocketship Indiana, a charter school management association. 82. Rob MacPherson has a B.A. from Central Michigan University. He currently serves as the Vice President for Development and Philanthropic Services with the Central Indiana Community Foundation whose goal is to inspire, support, and practice philanthropy, leadership, and service in Central Indiana. He directs the Foundation’s asset development strategies and donor services activities. He has been involved in non-profit organizations his entire career. 83. A.M.-S. was born in July 1998. Her birth mother chose Rob MacPherson and Steven Stolen to be A.M.-S.’s adoptive parents prior to the child’s birth. A.M.-S. was legally adopted by Rob MacPherson in November 1998 and then filed a co-parenting petition to the State of Indiana. The State of Indiana granted that petition and A.M.-S. was adopted by Steven Stolen in March 1999. 84. Because their marriage is not recognized by the State of Indiana, Rob MacPherson and Steven Stolen have to deny their status as married persons when they pay their state taxes, even though the federal government now recognizes them as married. 85. They own their home. However, because their marriage is not recognized, they do not own the property as tenants by the entirety. 86. They have had to hire attorneys to set up medical decision-making and other documents to allow one partner to make decisions for the other in case of incapacity. Much of this would be
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unnecessary if their marriage were recognized. And, there is no guarantee that if there is a medical emergency that the decision-making authority of the other partner will be recognized. 87. They recognize that there are many tangible benefits bestowed under Indiana law to married persons, but these are denied to them. 88. This is – at its most basic – grossly unfair, regardless of all the tangible benefits that they, and their child, are denied. It is unfair that they are not recognized as a family and treated like all other families with married parents. To have their relationship not afforded the same legal status as the relationships of other couples, merely because they are both men, is onerous. 89. It is particularly onerous because they are parents and this burdens not only them, but A.M.-S., their daughter. 90. A.M.-S. is currently 15 and is aware that her parents’ marriage is not recognized by the State of Indiana and this causes her concern as she does not view her parents any differently than those of her friends who have married, opposite-sex, parents. Yet, she is acutely aware that the State of Indiana treats her parents, and hence her, differently.
The general effects of the challenged law 91. Excluding same-sex couples from marriage disqualifies them from critically important rights and responsibilities that different-sex couples rely upon to secure their commitment to each other, and to safeguard their families. By way of example only, same-sex couples are denied:
a. The right to make health care decisions for an incapacitated spouse, although opposite-sex spouses enjoy this statutory right. Ind. Code § 16-36-1-5. b. The protection of the marital privilege that is given to opposite-sex couples who wed. Ind. Code § 34-46-3-1.
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c. The duty of support and rights regarding child custody and parenting time with respect to children of the marriage. See generally Ind. Code § 31-9-2-13 (Definition of “child”). d. Statutory protections granted to opposite-sex spouses upon death, including rights to inheritance when an opposite-sex spouse dies without a will, Ind. Code § 29-1-2-1; the right to claim an elective share of the estate of a deceased, opposite-sex spouse who died with a will, Ind. Code § 29-1-3-1, et seq.; various survivor benefits for the opposite-sex spouse of a public safety officer or state police officer killed in the line of duty, Ind. Code §§ 5-10-10-6, 5-10-10-6.5, 5-10-14-3; 10-12-2-6; various state retirement fund survivor benefits for opposite-sex spouses, Ind. Code §§ 5-10.2-3-7.6, 5-10.2-3-8, 5-10.3-12-27. e. The stabilizing effects and legal protections granted to opposite-sex spouses and their children through mandatory waiting periods prior to marriage dissolution, Ind. Code § 31-15-2-10, and by the requirements of fair division of marital property whether owned or acquired by one or both parties to the marriage, Ind. Code § 31-15-7-4. f. Preference given to opposite-sex spouses in being appointed legal guardian for an incapacitated spouse. Ind. Code § 29-3-5-5. g. Protection of the criminal code that makes it a crime to fail to support a needy spouse. Ind. Code § 35-46-1-6. h. Eligibility for “Gold Star family member” status and eligibility for personalized or special group license plates for surviving, opposite-sex spouses of active duty armed forces or National Guard members or former prisoners of war. Ind. Code §§ 9-18-15-1, 918-25-8, 9-18-54-1. i. The right/obligation to file joint state income tax returns. Ind. Code § 6-3-4-2.
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Case 1:14-cv-00404-RLY-TAB Document 22 Filed 04/03/14 Page 18 of 25 PageID #: 111
j. Exemption from state inheritance tax imposed on property transferred by a decedent to a surviving, opposite-sex spouse. Ind. Code § 6-4.1-3-7. 92. In addition to state-level benefits and obligations, Indiana’s exclusion of same-sex couples from marriage denies them eligibility for numerous federal protections that are only available to married couples if their marriages are legally recognized in the state where they live. For example, spousal eligibility for social security benefits and the Family Medical Leave Act are based on the law of the state where the couple resides at the time of application. 42 U.S.C. §416(h)(1)(A)(i) (social security); 29 C.F.R. §825.122(b) (Family Medical Leave Act). 93. Furthermore, while some federal agencies currently recognize marriages validly performed in a state regardless of where the married couple lives, those are administrative decisions and are thus subject to the vagaries of agency policy under different administrations and subject to congressional action. On January 9, 2014 and February 14, 2014, bills were introduced in the U.S. House of Representatives and U.S. Senate, respectively, which would require the federal government to defer to the laws of a person’s state of legal residence in determining marital status. See H.R. 3829, 113th Cong. § 3 (2014) (For Federal purposes “the term ‘marriage’ shall not include any relationship that the state, territory, or possession [where the couple resides] does not recognize as a marriage.”); S. 2024, 113th Cong. (2014) (“A bill to amend chapter 1 of title 1 of the United States Code, with regard to the definition of ‘marriage’ and ‘spouse’ for Federal purposes and to ensure respect for State regulation of marriage.”). 94. In addition to the tangible harms above, same-sex couples wishing to marry in Indiana, or who live in Indiana but entered into a marriage in another jurisdiction, are denied the unique social recognition that marriage conveys. Without access to the familiar language and legal label of marriage, they are unable to instantly or adequately communicate to others the depth and
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Case 1:14-cv-00404-RLY-TAB Document 22 Filed 04/03/14 Page 19 of 25 PageID #: 112
permanence of their commitment, or to obtain respect for that commitment as others do simply by invoking their married status. 95. The many substantive and dignitary inequities imposed on committed same-sex couples include particular harms to same-sex couples’ children, who are equally deserving of the stability, permanence, and legitimacy that are enjoyed by children of different-sex couples who marry. Civil marriage affords official sanctuary to the family unit, offering parents and children critical means to secure legal parent-child bonds, and a familiar, public way of demonstrating those bonds to third parties. By denying same-sex couples marriage, Indiana reinforces the view that the family bonds that tie same-sex parents and their children are less consequential, enduring, and meaningful than those of different-sex parents and their children. Same-sex couples and their children accordingly must live with the vulnerability and the stress inflicted by a lack of access to the same mechanisms for securing their legal relationships, and the ever-present possibility that others may question their familial relationship – in social, legal, educational, and medical settings and at times of crisis – in ways that opposite-sex spouses can avoid simply by reference to being married. 96. From a young age, children understand that marriage signifies an enduring family unit, and also understand that Indiana classifies families headed by same-sex couples as less worthy than other families, undeserving of marriage, and not entitled to the same societal recognition and legal support as other families. Indiana has no adequate interest to justify marking the children of samesex couples, including plaintiffs L.M.-C. and A.M.-S., with a badge of inferiority that will invite disrespect in school, on the playground, and in every other sphere of their lives. 97. The government is a powerful teacher of discrimination to others. By decreeing that the relationships of same-sex couples should be ignored in Indiana, Indiana instructs all persons with
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whom same-sex couples interact, including those couples’ own children, that their relationships are less worthy than others. Bearing the imprimatur of the government, Indiana’s marriage discrimination statute communicates a view that same-sex couples are unfit for the dignity, respect, and stature afforded to different-sex couples, and this encourages others to follow the government’s example in discriminating against them. 98. Many private entities defer to Indiana’s designation of marital status in defining “family” for purposes of an array of important benefits, often resulting in the exclusion of same-sex couples and their children from important safety nets such as private employer-provided health insurance for family members. Indiana also encourages disrespect of committed same-sex couples and their children by others in workplaces, schools, businesses, and other major arenas of life, in ways that would be less likely to occur and more readily corrected if marriage were available to same-sex couples. Marriage and same-sex couples 99. Same-sex couples and opposite-sex couples are similarly situated for purposes of marriage. 100. Same-sex couples make the same commitment to one another as opposite-sex couples. Like opposite-sex couples, same-sex couples fall in love, build their lives together, plan their futures together, and hope to grow old together. Like opposite-sex couples, same-sex couples support one another emotionally and financially, and take care of one another physically in times of injury or illness. 101. Plaintiffs seek to marry and/or to have their marriages recognized for the same emotional, romantic, and dignitary reasons, and to provide the same legal shelter to their families, as opposite-sex couples. 102. Plaintiffs, both adults and children, are equally worthy of the tangible rights and
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responsibilities, as well as the respect, dignity, and legitimacy that access to marriage confers on opposite-sex couples and their children. For the many children being raised by same-sex couples, the tangible resources and societal esteem that marriage confers on families is no less important than for children of opposite-sex couples. The harms inherent in Indiana’s marriage discrimination statute are inflicted upon the plaintiffs and their children on a daily basis. Sexual orientation and the status of lesbians and gay men 103. Sexual orientation bears no relation to an individual’s ability to perform in, or contribute to, society. 104. Sexual orientation is a core, defining trait that is so fundamental to an individual’s identity and conscience that a person may not legitimately be required to abandon it, even if that were possible. 105. Sexual orientation generally is fixed at an early age and is highly resistant to change through intervention. No credible evidence supports the notion that such interventions are either effective or safe; indeed, they often are harmful and damaging. No mainstream mental health professional organization approves interventions that attempt to change sexual orientation, and virtually all of them – including the American Psychological Association and the American Psychiatric Association – have adopted policy statements cautioning professionals and the public about treatments attempting to alter sexual orientation. 106. Lesbians and gay men are a discrete and insular minority who have suffered a long and painful history of discrimination in Indiana and throughout the United States. 107. Ongoing prejudice against lesbians and gay men continues seriously to curtail the operation of those political processes that might ordinarily be relied upon to protect minorities. 108. Lesbians and gay men lack express statutory protection against discrimination in
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Case 1:14-cv-00404-RLY-TAB Document 22 Filed 04/03/14 Page 22 of 25 PageID #: 115
employment, public accommodations, and housing at the federal level and in more than half the states, including Indiana; they are the only group in Indiana to have been targeted by the legislative process to strip them of the right to marry by state constitutional amendment; and they have been targeted across the nation through the voter initiative process more than any other group. The role of the defendants 109. As Indiana’s chief executive officer, defendant Governor is responsible for the actions of the numerous state agencies, and the numerous state policies, that disadvantage plaintiffs. These include policies regarding tax obligations, vital records, and insurance coverage, among others. 110. The Commissioner of the Indiana Department of Revenue is responsible for, among other things, enforcing Indiana’s tax laws. In enforcing Indiana Code § 31-11-1-1, he has created “Same-Sex Marriage Tax Filing Guidance” (attached as Exhibit 2) detailing the manner in which same-sex couples married out-of-state should file their Indiana income tax returns. 111. The Commissioner of the Indiana State Department of Health is responsible for the marriage certificate application that prevents same-sex couples from being able to apply for, and receive, marriage licenses. 112. The defendant county clerks are delegated the power by Indiana law to issue marriage licenses and to determine if those applying meet the requirements for marriage under Indiana law. 113. At all times defendants have acted and have refused to act under color of state law. 114. The actions of the defendants are causing plaintiffs irreparable harm for which there is no adequate remedy at law. Legal claims
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115. By failing to allow same-sex couples to marry, or to recognize in Indiana marriages they enter into in other states, Indiana Code § 31-11-1-1 is unconstitutional as impinging on the fundamental right of marriage, in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. 116. Same-sex couples and their children are similarly situated to opposite-sex couples and their children and to the extent that Indiana Code § 31-11-1-1 allows opposite-sex couples to marry, but not same-sex couples, the statute is unconstitutional as violating the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Claim for relief
WHEREFORE, plaintiffs request that this Court: a. Accept jurisdiction of this case and set it for hearing at the earliest opportunity. b. Enter a declaratory judgment that Indiana Code § 31-11-1-1 is unconstitutional for the reasons noted above. c. Enter a preliminary injunction, later to be made permanent, enjoining defendants from enforcing Indiana Code § 31-11-1-1, thus recognizing the marriages of the plaintiff same-sex couples who have wed outside of Indiana and allowing the plaintiff same-sex couples who have not wed to do so in Indiana, enjoining defendant Commissioner of the Indiana State Department of Revenue to allow same-sex spouses to file state income-tax returns in the same manner as opposite-sex spouses, and enjoining defendant Commissioner of the Indiana State Board of Health to change all appropriate forms to recognize same-sex marriage applications and marriages. d. Award plaintiffs their costs and reasonable attorneys’ fees. e. Award all other proper relief.
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/s/ Kenneth J. Falk Kenneth J. Falk No. 6777-49
/s/ Gavin M. Rose Gavin M. Rose No. 26565-53 ACLU of Indiana 1031 E. Washington St. Indianapolis, IN 46202 317/635-4059 fax: 317/635-4105 kfalk@aclu-in.org grose@aclu-in.org
James Esseks Motion for Admission Pro Hac Vice Pending Chase Strangio Motion for Admission Pro Hac Vice Pending American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 212/549.2627 fax: 212/549-2650 jesseks@aclu.org cstrangio@aclu.org
Counsel for plaintiffs Wehrle, Miller, Hasty, Vallero, MacPherson, Stolen, A.M.-S.

/s/ Sean C. Lemieux Sean C. Lemieux No. 16778-49 Lemieux Law 23 E. 39th St. Indianapolis, IN 46205 317/985-5809 fax: 866/686-2901 sean@lemieuxlawoffices.com
Counsel for plaintiffs Fujii, Layne, Betterman, L.M.-C., Scott and Rodney MoubrayCarrico

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Certificate of Service I certify that a copy of the foregoing was filed electronically on this 3rd day of April, 2014. The following parties will be served by operation of the Court’s electronic system. Thomas M. Fisher Solicitor General Office of the Attorney General tom.fisher@atg.in.gov I further certify that a copy of the foregoing was served on the below named persons by first class U.S. postage, or via certified mail, on this 3rd day of April, 2014. Commissioner, Indiana State Department of Revenue 100 North Senate Ave., Rm. N-248 Indianapolis, IN 46204 Clerk, Allen County, Indiana Allen County Courthouse 715 S. Calhoun St. Room 200A Fort Wayne, IN 46802 Clerk, Hamilton County, Indiana One Hamilton County Square Suite 157 Noblesville, IN 46060
/s/ Gavin M. Rose Attorney at Law
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DOR: Same-Sex Marriage Tax Filing Guidance

http://www.in.gov/dor/4895.htm

Case 1:14-cv-00404-RLY-TAB Document 22-2 Filed 04/03/14 Page 1 of 1 PageID #: 120

Indiana Department of Revenue

Same-Sex Marriage Tax Filing Guidance
In accordance with IC 31-11-1-1, Indiana does not recognize same-sex marriages. Therefore, same-sex couples who file federal returns with a married filing status must each file their Indiana income tax returns with a filing status of single.
In order to calculate Indiana income tax liability, same-sex spouses who file federal returns with a married filing status must each complete a “sample” federal return (IRS Form 1040), entering information as if single.
Use the information from the “sample” federal return as a basis for completing the Indiana return. Do not file the “sample” return with the IRS or the Department of Revenue. It is recommended that you retain a copy in your records.
FAQ:
I have completed a “sample” federal return. Do I have to send a copy of it to the state? No. However, you should retain a copy in your files.
For income that is in both of our names, how do we separate that on our single sample federal returns? In general, income from joint accounts may be split 50/50 unless extenuating conditions exist.
Example. $100 interest income received from a joint savings account may be separated $50 each. Example. Taxpayers realized $10,000 net income from jointly held rental property. Taxpayer A provided material service in the receipt of that income; Taxpayer B provided no service. Taxpayer A chooses to report 75%, or $7,500 of that income; Taxpayer B will report the $2,500 difference.
Note – The full $10,000 rental income must be reported between the two tax returns.
If I am filing by paper, do I have to complete the whole sample federal return, even the itemization portion? No. Just complete the following lines on your sample 2013 federal return: 1040 – line 6 (exemptions); line 7 through line 37 (federal AGI); line 64a (EIC, if applicable) 1040A – line 6 (exemptions); line 7 through line 21 (federal AGI); line 38a (EIC, if applicable) 1040EZ – line 1 through line 4 (federal AGI); line 8a (EIC, if applicable)
However, if you are electronically filing, the software will be able to complete the sample return for you.
Since I cannot file as married filing jointly, can I file as married filing separately? No. You are required to file with a filing status of single.

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4/2/2014 11:33 AM

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United States District Court
for the Southern District of Indiana

MIDORI FUJII, et al., Plaintiffs,
vs. GOVERNOR, STATE OF INDIANA, et. al.,
Defendants.

)

)

)

)

)

Cause No: 1:14-cv-404 RLY-TAB

)

)

)

)

SUMMONS IN A CIVIL ACTION
TO: Commissioner, Indiana State Department of Revenue 100 N. Senate Ave., Rm. N-248 Indianapolis, IN 46204
A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it) C or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) C you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff=s attorney, whose name and address are:
Kenneth J. Falk ACLU of Indiana 1031 E. Washington St. Indianapolis, IN 46202
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

CLERK OF COURT

Date: ______________________

_______________________________________ Signature of Clerk or Deputy Clerk

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Civil Action Number: _1:14-cv-404_________________________

Civil Summons (Page 2)

PROOF OF SERVICE (this section should not be filed with the court unless required by Fed. R. Civ. P. 4(l))

This summons for (name of individual and title, if any) ______________________________________

was received by me on (date)__________________.

I personally served the summons on the individual at (place) __________________________________

________________________________________________ on (date) __________________; or

I left the summons at the individual’s residence or usual place of abode with (name)________________

_____________________________________, a person of suitable age and discretion who resides there,

on (date) __________________, and mailed a copy to the individual’s last known address; or

I served the summons on (name of individual) ________________________________________, who is

designated by law to accept service of process on behalf of (name of organization) _________________

________________________________________on (date) __________________; or

I returned the summons unexecuted because _____________________________________________; or

Other (specify):

My fees are $ _____________for travel and $_______________for services, for a total of $_______________.

I declare under penalty of perjury that this information is true.

Date: ____________________

__________________________________________________ Server’s Signature

__________________________________________________ Printed name and title

__________________________________________________ Server’s address
Additional information regarding attempted service, etc.

 
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Case: 14-2386 Document: 00712327357

Filed: 10/07/2014 Pages: 3

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Everett McKinley Dirksen United States Courthouse Room 2722 - 219 S. Dearborn Street Chicago, Illinois 60604

Office of the Clerk Phone: (312) 435-5850 www.ca7.uscourts.gov

October 7, 2014

NOTICE OF ISSUANCE OF MANDATE

Laura A. Briggs To:
UNITED STATES DISTRICT COURT Southern District of Indiana United States Courthouse Indianapolis , IN 46204-0000

No.: 14-2386 No.: 14-2387 No.: 14-2388

MARILYN RAE BASKIN, et al., Plaintiffs - Appellees
v.
PENNY BOGAN, et al., Defendants - Appellants MIDORI FUJII, et al., Plaintiffs - Appellees
v.
COMMISSIONER OF THE INDIANA STATE DEPARTMENT OF REVENUE, in his official capacity, et al., Defendants - Appellants PAMELA LEE, et al., Plaintiffs - Appellees
v.
BRIAN ABBOTT, et al., Defendants - Appellants

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Case: 14-2386 Document: 00712327357

Filed: 10/07/2014 Pages: 3

Originating Case Information:
District Court No: 1:14-cv-00355-RLY-TAB Southern District of Indiana, Indianapolis Division District Judge Richard L. Young
Originating Case Information:
District Court No: 1:14-cv-00404-RLY-TAB Southern District of Indiana, Indianapolis Division

Originating Case Information:
District Court No: 1:14-cv-00406-RLY-MJD Southern District of Indiana, Indianapolis Division
Herewith is the mandate of this court in this appeal, along with the Bill of Costs, if any. A certified copy of the opinion/order of the court and judgment, if any, and any direction as to costs shall constitute the mandate.

RECORD ON APPEAL STATUS:

No record to be returned

NOTE TO COUNSEL: If any physical and large documentary exhibits have been filed in the above-entitled cause, they are to be withdrawn ten (10) days from the date of this notice. Exhibits not withdrawn during this period will be disposed of.
Please acknowledge receipt of these documents on the enclosed copy of this notice.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Received above mandate and record, if any, from the Clerk, U.S. Court of Appeals for the Seventh Circuit.

Date:

Received by:

_______1_0_/_7_/2_0_1__4__________

_________________________________________________________________ Deputy Clerk, U.S. District Court

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Case: 14-2386 Document: 00712327357

Filed: 10/07/2014 Pages: 3

form name: c7_Mandate(form ID: 135)

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Case: 14-2386 Document: 00712327358

Filed: 10/07/2014 Pages: 40

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 14-2386 to 14-2388
MARILYN RAE BASKIN, et al., Plaintiffs-Appellees,
v. PENNY BOGAN, et al.,
Defendants-Appellants. ____________________
Appeals from the United States District Court for the Southern District of Indiana, Indianapolis Division.
Nos. 1:14-cv-00355-RLY-TAB, 1:14-cv-00404-RLY-TAB, 1:14-cv-00406-RLY-MJD — Richard L. Young, Chief Judge.
____________________
No. 14-2526
VIRGINIA WOLF, et al., Plaintiffs-Appellees,
v. SCOTT WALKER, et al.,
Defendants-Appellants. ____________________
Appeal from the United States District Court for the Western District of Wisconsin.
No. 3:14-cv-00064-bbc — Barbara B. Crabb, Judge.
______________________

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2

Nos. 14-2386 to 14-2388, 14-2526

ARGUED AUGUST 26, 2014 — DECIDED SEPTEMBER 4, 2014
____________________
Before POSNER, WILLIAMS, and HAMILTON, Circuit Judges.
POSNER, Circuit Judge. Indiana and Wisconsin are among the shrinking majority of states that do not recognize the validity of same-sex marriages, whether contracted in these states or in states (or foreign countries) where they are lawful. The states have appealed from district court decisions invalidating the states’ laws that ordain such refusal.
Formally these cases are about discrimination against the small homosexual minority in the United States. But at a deeper level, as we shall see, they are about the welfare of American children. The argument that the states press hardest in defense of their prohibition of same-sex marriage is that the only reason government encourages marriage is to induce heterosexuals to marry so that there will be fewer “accidental births,” which when they occur outside of marriage often lead to abandonment of the child to the mother (unaided by the father) or to foster care. Overlooked by this argument is that many of those abandoned children are adopted by homosexual couples, and those children would be better off both emotionally and economically if their adoptive parents were married.
We are mindful of the Supreme Court’s insistence that “whether embodied in the Fourteenth Amendment or inferred from the Fifth, equal protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices. In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld

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3

against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993) (emphasis added). The phrase we’ve italicized is the exception applicable to this pair of cases.
We hasten to add that even when the group discriminated against is not a “suspect class,” courts examine, and sometimes reject, the rationale offered by government for the challenged discrimination. See, e.g., Village of Willowbrook v. Olech, 528 U.S. 562 (2000) (per curiam); City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 448–50 (1985). In Vance v. Bradley, 440 U.S. 93, 111 (1979), an illustrative case in which the Supreme Court accepted the government’s rationale for discriminating on the basis of age, the majority opinion devoted 17 pages to analyzing whether Congress had had a “reasonable basis” for the challenged discrimination (requiring foreign service officers but not ordinary civil servants to retire at the age of 60), before concluding that it did.
We’ll see that the governments of Indiana and Wisconsin have given us no reason to think they have a “reasonable basis” for forbidding same-sex marriage. And more than a reasonable basis is required because this is a case in which the challenged discrimination is, in the formula from the Beach case, “along suspect lines.” Discrimination by a state or the federal government against a minority, when based on an immutable characteristic of the members of that minority (most familiarly skin color and gender), and occurring against an historical background of discrimination against the persons who have that characteristic, makes the discriminatory law or policy constitutionally suspect. See, e.g., Bowen v. Gilliard, 483 U.S. 587, 602–03 (1987); Regents of University

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4

Nos. 14-2386 to 14-2388, 14-2526

of California v. Bakke, 438 U.S. 265, 360–62 (1978); St. John’s United Church of Christ v. City of Chicago, 502 F.3d 616, 638 (7th Cir. 2007); Wilkins v. Gaddy, 734 F.3d 344, 348 (4th Cir. 2013); Gallagher v. City of Clayton, 699 F.3d 1013, 1018–19 (8th Cir. 2012). These circumstances create a presumption that the discrimination is a denial of the equal protection of the laws (it may violate other provisions of the Constitution as well, but we won’t have to consider that possibility). The presumption is rebuttable, if at all, only by a compelling showing that the benefits of the discrimination to society as a whole clearly outweigh the harms to its victims. See, e.g., Grutter v. Bollinger, 539 U.S. 306, 326–27 (2003); United States v. Virginia, 518 U.S. 515, 531–33 (1996).
The approach is straightforward but comes wrapped, in many of the decisions applying it, in a formidable doctrinal terminology—the terminology of rational basis, of strict, heightened, and intermediate scrutiny, of narrow tailoring, fundamental rights, and the rest. We’ll be invoking in places the conceptual apparatus that has grown up around this terminology, but our main focus will be on the states’ arguments, which are based largely on the assertion that banning same-sex marriage is justified by the state’s interest in channeling procreative sex into (necessarily heterosexual) marriage. We will engage the states’ arguments on their own terms, enabling us to decide our brace of cases on the basis of a sequence of four questions:
1. Does the challenged practice involve discrimination, rooted in a history of prejudice, against some identifiable group of persons, resulting in unequal treatment harmful to them?

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2. Is the unequal treatment based on some immutable or at least tenacious characteristic of the people discriminated against (biological, such as skin color, or a deep psychological commitment, as religious belief often is, both types being distinct from characteristics that are easy for a person to change, such as the length of his or her fingernails)? The characteristic must be one that isn’t relevant to a person’s ability to participate in society. Intellect, for example, has a large immutable component but also a direct and substantial bearing on qualifications for certain types of employment and for legal privileges such as entitlement to a driver’s license, and there may be no reason to be particularly suspicious of a statute that classifies on that basis.
3. Does the discrimination, even if based on an immutable characteristic, nevertheless confer an important offsetting benefit on society as a whole? Age is an immutable characteristic, but a rule prohibiting persons over 70 to pilot airliners might reasonably be thought to confer an essential benefit in the form of improved airline safety.
4. Though it does confer an offsetting benefit, is the discriminatory policy overinclusive because the benefit it confers on society could be achieved in a way less harmful to the discriminated-against group, or underinclusive because the government’s purported rationale for the policy implies that it should equally apply to other groups as well? One way to decide whether a policy is overinclusive is to ask whether unequal treatment is essential to attaining the desired benefit. Imagine a statute that imposes a $2 tax on women but not men. The proceeds from that tax are, let’s assume, essential to the efficient operation of government. The tax is therefore socially efficient, and the benefits clearly

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outweigh the costs. But that’s not the end of the inquiry. Still to be determined is whether the benefits from imposing the tax only on women outweigh the costs. And likewise in a same-sex marriage case the issue is not whether heterosexual marriage is a socially beneficial institution but whether the benefits to the state from discriminating against same-sex couples clearly outweigh the harms that this discrimination imposes.
Our questions go to the heart of equal protection doctrine. Questions 1 and 2 are consistent with the various formulas for what entitles a discriminated-against group to heightened scrutiny of the discrimination, and questions 3 and 4 capture the essence of the Supreme Court’s approach in heightened-scrutiny cases: “To succeed, the defender of the challenged action must show ‘at least that the classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.’” United States v. Virginia, supra, 518 U.S. at 524 (1996), quoting Mississippi University for Women v. Hogan, 458 U.S. 718, 724 (1982).
The difference between the approach we take in these two cases and the more conventional approach is semantic rather than substantive. The conventional approach doesn’t purport to balance the costs and benefits of the challenged discriminatory law. Instead it evaluates the importance of the state’s objective in enacting the law and the extent to which the law is suited (“tailored”) to achieving that objective. It asks whether the statute actually furthers the interest that the state asserts and whether there might be some less burdensome alternative. The analysis thus focuses not on “costs” and “benefits” as such, but on “fit.” That is why the

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briefs in these two cases overflow with debate over whether prohibiting same-sex marriage is “over- or underinclusive”—for example, overinclusive in ignoring the effect of the ban on the children adopted by same-sex couples, underinclusive in extending marriage rights to other nonprocreative couples. But to say that a discriminatory policy is overinclusive is to say that the policy does more harm to the members of the discriminated-against group than necessary to attain the legitimate goals of the policy, and to say that the policy is underinclusive is to say that its exclusion of other, very similar groups is indicative of arbitrariness.
Although the cases discuss, as we shall be doing in this opinion, the harms that a challenged statute may visit upon the discriminated-against group, those harms don’t formally enter into the conventional analysis. When a statute discriminates against a protected class (as defined for example in our question 2), it doesn’t matter whether the harm inflicted by the discrimination is a grave harm. As we said, a statute that imposed a $2 tax on women but not men would be struck down unless there were a compelling reason for the discrimination. It wouldn’t matter that the harm to each person discriminated against was slight if the benefit of imposing the tax only on women was even slighter.
Our pair of cases is rich in detail but ultimately straightforward to decide. The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction— that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously. To the extent that children are better off in families in

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which the parents are married, they are better off whether they are raised by their biological parents or by adoptive parents. The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not subjected to heightened scrutiny, which is why we can largely elide the more complex analysis found in more closely balanced equal-protection cases.
It is also why we can avoid engaging with the plaintiffs’ further argument that the states’ prohibition of same-sex marriage violates a fundamental right protected by the due process clause of the Fourteenth Amendment. The plaintiffs rely on cases such as Hodgson v. Minnesota, 497 U.S. 417, 435 (1990), and Zablocki v. Redhail, 434 U.S. 374, 383–86 (1978), that hold that the right to choose whom to marry is indeed a fundamental right. The states reply that the right recognized in such cases is the right to choose from within the class of persons eligible to marry, thus excluding children, close relatives, and persons already married—and, the states contend, persons of the same sex. The plaintiffs riposte that there are good reasons for ineligibility to marry children, close relatives, and the already married, but not for ineligibility to marry persons of the same sex. In light of the compelling alternative grounds that we’ll be exploring for allowing samesex marriage, we won’t have to engage with the parties’ “fundamental right” debate; we can confine our attention to equal protection.
We begin our detailed analysis of whether prohibiting same-sex marriage denies equal protection of the laws by noting that Indiana and Wisconsin, in refusing to authorize such marriage or (with limited exceptions discussed later) to recognize such marriages made in other states by residents

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of Indiana or Wisconsin, are discriminating against homosexuals by denying them a right that these states grant to heterosexuals, namely the right to marry an unmarried adult of their choice. And there is little doubt that sexual orientation, the ground of the discrimination, is an immutable (and probably an innate, in the sense of in-born) characteristic rather than a choice. Wisely, neither Indiana nor Wisconsin argues otherwise. The American Psychological Association has said that “most people experience little or no sense of choice about their sexual orientation.” APA, “Answers to Your Questions: For a Better Understanding of Sexual Orientation & Homosexuality” 2 (2008), www.apa.org/topics/lgbt/orien tation.pdf (visited Sept. 2, 2014, as were the other websites cited in this opinion); see also Gregory M. Herek et al., “Demographic, Psychological, and Social Characteristics of SelfIdentified Lesbian, Gay, and Bisexual Adults in a US Probability Sample,” 7 Sexuality Research and Social Policy 176, 188 (2010) (“combining respondents who said they’d had a small amount of choice with those reporting no choice, 95% of gay men and 84% of lesbians could be characterized as perceiving that they had little or no choice about their sexual orientation”). That homosexual orientation is not a choice is further suggested by the absence of evidence (despite extensive efforts to find it) that psychotherapy is effective in altering sexual orientation in general and homosexual orientation in particular. APA, “Answers to Your Questions,” supra, at 3; Report of the American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation 35–41 (2009).
The leading scientific theories of the causes of homosexuality are genetic and neuroendocrine theories, the latter being theories that sexual orientation is shaped by a fetus’s ex-

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posure to certain hormones. See, e.g., J. Michael Bailey, “Biological Perspectives on Sexual Orientation,” in Lesbian, Gay, and Bisexual Identities Over the Lifespan: Psychological Perspectives 102–30 (Anthony R. D’Augelli and Charlotte J. Patterson eds. 1995); Barbara L. Frankowski, “Sexual Orientation and Adolescents,” 113 Pediatrics 1827, 1828 (2004). Although it seems paradoxical to suggest that homosexuality could have a genetic origin, given that homosexual sex is nonprocreative, homosexuality may, like menopause, by reducing procreation by some members of society free them to provide child-caring assistance to their procreative relatives, thus increasing the survival and hence procreative prospects of these relatives. This is called the “kin selection hypothesis” or the “helper in the nest theory.” See, e.g., Association for Psychological Science, ”Study Reveals Potential Evolutionary Role for Same-Sex Attraction,” Feb. 4, 2010, www.psychologicalscience.org/media/releases/2010/vasey.cf m. There are other genetic theories of such attraction as well. See, e.g., Nathan W. Bailey and Marlene Zuk, “Same-Sex Sexual Behavior and Evolution,” forthcoming in Trends in Ecology and Evolution, www.faculty.ucr.edu/~mzuk/Bai ley%20and%20Zuk%202009%20Same%20sex%20behaviour. pdf. For a responsible popular treatment of the subject see William Kremer, “The Evolutionary Puzzle of Homosexuality,” BBC News Magazine, Feb. 17, 2014, www.bbc .com/news/magazine-26089486.
The harm to homosexuals (and, as we’ll emphasize, to their adopted children) of being denied the right to marry is considerable. Marriage confers respectability on a sexual relationship; to exclude a couple from marriage is thus to deny it a coveted status. Because homosexuality is not a voluntary condition and homosexuals are among the most stigmatized,

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misunderstood, and discriminated-against minorities in the history of the world, the disparagement of their sexual orientation, implicit in the denial of marriage rights to same-sex couples, is a source of continuing pain to the homosexual community. Not that allowing same-sex marriage will change in the short run the negative views that many Americans hold of same-sex marriage. But it will enhance the status of these marriages in the eyes of other Americans, and in the long run it may convert some of the opponents of such marriage by demonstrating that homosexual married couples are in essential respects, notably in the care of their adopted children, like other married couples.
The tangible as distinct from the psychological benefits of marriage, which (along with the psychological benefits) enure directly or indirectly to the children of the marriage, whether biological or adopted, are also considerable. In Indiana they include the right to file state tax returns jointly, Ind. Code § 6-3-4-2(d); the marital testimonial privilege, § 3446-3-1(4); spousal-support obligations, § 35-46-1-6(a); survivor benefits for the spouse of a public safety officer killed in the line of duty, § 36-8-8-13.8(c); the right to inherit when a spouse dies intestate, § 29-1-2-1(b), (c); custodial rights to and child support obligations for children of the marriage, and protections for marital property upon the death of a spouse. §§ 12-15-8.5-3(1); 12-20-27-1(a)(2)(A). Because Wisconsin allows domestic partnerships, some spousal benefits are available to same-sex couples in that state. But others are not, such as the right to adopt children jointly, Wis. Stat. § 48.82(1); spousal-support obligations, §§ 765.001(2), 766.15(1), 766.55; the presumption that all property of married couples is marital property, § 766.31(2); and state-

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mandated access to enrollment in a spouse’s health insurance plan, § 632.746(7).
Of great importance are the extensive federal benefits to which married couples are entitled: the right to file income taxes jointly, 26 U.S.C. § 6013; social security spousal and surviving-spouse benefits, 42 U.S.C. § 402; death benefits for surviving spouse of a military veteran, 38 U.S.C. § 1311; the right to transfer assets to one’s spouse during marriage or at divorce without additional tax liability, 26 U.S.C. § 1041; exemption from federal estate tax of property that passes to the surviving spouse, 26 U.S.C. § 2056(a); the tax exemption for employer-provided healthcare to a spouse, 26 U.S.C. § 106; Treas. Reg. § 1.106–1; and healthcare benefits for spouses of federal employees, 5 U.S.C. §§ 8901(5), 8905.
The denial of these federal benefits to same-sex couples brings to mind the Supreme Court’s opinion in United States v. Windsor, 133 S. Ct. 2675, 2694–95 (2013), which held unconstitutional the denial of all federal marital benefits to same-sex marriages recognized by state law. The Court’s criticisms of such denial apply with even greater force to Indiana’s law. The denial “tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. [No same-sex marriages are valid in Indiana.] This places same-sex couples in an unstable position of being in a second-tier marriage [in Indiana, in the lowest—the unmarried—tier]. The differentiation demeans the couple … [and] humiliates tens of thousands of children now being raised by same-sex couples. The law … makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with

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other families in their community and in their daily lives.” Id. at 2694.
The Court went on to describe at length the federal marital benefits denied by the Defense of Marriage Act to married same-sex couples. Of particular relevance to our two cases is the Court’s finding that denial of those benefits causes economic harm to children of same-sex couples. “It raises the cost of health care for families by taxing health benefits provided by employers to their workers’ same-sex spouses. And it denies or reduces benefits allowed to families upon the loss of a spouse and parent, benefits that are an integral part of family security. [The Act also] divests married same-sex couples of the duties and responsibilities that are an essential part of married life and that they in most cases would be honored to accept.” Id. at 2695 (citations omitted).
Of course there are costs to marriage as well as benefits, not only the trivial cost of the marriage license but also the obligations, such as alimony, that a divorcing spouse may be forced to bear. But those are among “the duties and responsibilities that are an essential part of married life and that [the spouses] in most cases would be honored to accept.” That marriage continues to predominate over cohabitation as a choice of couples indicates that on average the sum of the tangible and intangible benefits of marriage outweighs the costs.
In light of the foregoing analysis it is apparent that groundless rejection of same-sex marriage by government must be a denial of equal protection of the laws, and therefore that Indiana and Wisconsin must to prevail establish a clearly offsetting governmental interest in that rejection.

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Whether they have done so is really the only issue before us, and the balance of this opinion is devoted to it—except that before addressing it we must address the states’ argument that whatever the merits of the plaintiffs’ claims, we are bound by Baker v. Nelson, 409 U.S. 810 (1972) (mem.), to reject them. For there the Supreme Court, without issuing an opinion, dismissed “for want of a substantial federal question” an appeal from a state court that had held that prohibiting same-sex marriage did not violate the Constitution. Although even a decision without opinion is on the merits and so binds lower courts, the Supreme Court carved an exception to this principle of judicial hierarchy in Hicks v. Miranda, 422 U.S. 332, 344 (1975), for “when doctrinal developments indicate otherwise”; see also United States v. Blaine County, 363 F.3d 897, 904 (9th Cir. 2004); Soto-Lopez v. New York City Civil Service Commission, 755 F.2d 266, 272 (2d Cir. 1985). Baker was decided in 1972—42 years ago and the dark ages so far as litigation over discrimination against homosexuals is concerned. Subsequent decisions such as Romer v. Evans, 517 U.S. 620, 634–36 (1996); Lawrence v. Texas, 539 U.S. 558, 577– 79 (2003), and United States v. Windsor are distinguishable from the present two cases but make clear that Baker is no longer authoritative. At least we think they’re distinguishable. But Justice Scalia, in a dissenting opinion in Lawrence, 539 U.S. at 586, joined by Chief Justice Rehnquist and Justice Thomas, thought not. He wrote that “principle and logic” would require the Court, given its decision in Lawrence, to hold that there is a constitutional right to same-sex marriage. Id. at 605.
First up to bat is Indiana, which defends its refusal to allow same-sex marriage on a single ground, namely that government’s sole purpose (or at least Indiana’s sole purpose) in

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making marriage a legal relation (unlike cohabitation, which is purely contractual) is to enhance child welfare. Notably the state does not argue that recognizing same-sex marriage undermines conventional marriage.
When a child is conceived intentionally, the parents normally intend to raise the child together. But pregnancy, and the resulting birth (in the absence of abortion), are sometimes accidental, unintended; and often in such circumstances the mother is stuck with the baby—the father, not having wanted to become a father, refuses to take any responsibility for the child’s welfare. The sole reason for Indiana’s marriage law, the state’s argument continues, is to try to channel unintentionally procreative sex into a legal regime in which the biological father is required to assume parental responsibility. The state recognizes that some or even many homosexuals want to enter into same-sex marriages, but points out that many people want to enter into relations that government refuses to enforce or protect (friendship being a notable example). Government has no interest in recognizing and protecting same-sex marriage, Indiana argues, because homosexual sex cannot result in unintended births.
As for the considerable benefits that marriage confers on the married couple, these in the state’s view are a part of the regulatory regime: the carrot supplementing the stick. Marital benefits for homosexual couples would not serve the regulatory purpose of marital benefits for heterosexual couples because homosexual couples don’t produce babies.
The state’s argument can be analogized to requiring drivers’ licenses for drivers of motor vehicles but not for bicyclists. Motor vehicles are more dangerous to other users of the roads than bicycles are, and therefore a driver’s license is

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required to drive the former but not to pedal the latter. Bicyclists do not and cannot complain about not having to have a license to pedal, because obtaining, renewing, etc., the license would involve a cost in time and money. The analogy is not perfect (if it were, it would be an identity not an analogy) because marriage confers benefits as well as imposing costs, as we have emphasized (indeed it confers on most couples benefits greater than the costs). But those benefits, in Indiana’s view, would serve no state interest if extended to homosexual couples, who should therefore be content with the benefits they derive from being excluded from the marriage-licensing regime: the cost of the license and the burden of marital duties, such as support, and the costs associated with divorce. Moreover, even if possession of a driver’s license conferred benefits not available to bicyclists (discounts, or tax credits, perhaps), the state could argue that it offered these benefits only to induce drivers to obtain a license (the carrot supplementing the stick), and that bicyclists don’t create the same regulatory concern and so don’t deserve a carrot.
Another analogy: The federal government extends a $2000 “saver’s credit” to low- and middle-income workers who contribute to a retirement account. Although everyone would like a $2000 credit, only lower-income workers are entitled to it. Should higher-income workers complain about being left out of the program, the government could reply that only lower-income workers create a regulatory concern—the concern that they’d be unable to support themselves in retirement without government encouragement to save while they’re young.

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In short, Indiana argues that homosexual relationships are created and dissolved without legal consequences because they don’t create family-related regulatory concerns. Yet encouraging marriage is less about forcing fathers to take responsibility for their unintended children—state law has mechanisms for determining paternity and requiring the father to contribute to the support of his children—than about enhancing child welfare by encouraging parents to commit to a stable relationship in which they will be raising the child together. Moreover, if channeling procreative sex into marriage were the only reason that Indiana recognizes marriage, the state would not allow an infertile person to marry. Indeed it would make marriage licenses expire when one of the spouses (fertile upon marriage) became infertile because of age or disease. The state treats married homosexuals as would-be “free riders” on heterosexual marriage, unreasonably reaping benefits intended by the state for fertile couples. But infertile couples are free riders too. Why are they allowed to reap the benefits accorded marriages of fertile couples, and homosexuals are not?
The state offers an involuted pair of answers, neither of which answers the charge that its policy toward same-sex marriage is underinclusive. It points out that in the case of most infertile heterosexual couples, only one spouse is infertile, and it argues that if these couples were forbidden to marry there would be a risk of the fertile spouse’s seeking a fertile person of the other sex to breed with and the result would be “multiple relationships that might yield unintentional babies.” True, though the fertile member of an infertile couple might decide instead to produce a child for the couple by surrogacy or (if the fertile member is the woman) a sperm bank, or to adopt, or to divorce. But what is most un-

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likely is that the fertile member, though desiring a biological child, would have procreative sex with another person and then abandon the child—which is the state’s professed fear.
The state tells us that “non-procreating opposite-sex couples who marry model the optimal, socially expected behavior for other opposite-sex couples whose sexual intercourse may well produce children.” That’s a strange argument; fertile couples don’t learn about child-rearing from infertile couples. And why wouldn’t same-sex marriage send the same message that the state thinks marriage of infertile heterosexuals sends—that marriage is a desirable state?
It’s true that infertile or otherwise non-procreative heterosexual couples (some fertile couples decide not to have children) differ from same-sex couples in that it is easier for the state to determine whether a couple is infertile by reason of being of the same sex. It would be considered an invasion of privacy to condition the eligibility of a heterosexual couple to marry on whether both prospective spouses were fertile (although later we’ll see Wisconsin flirting with such an approach with respect to another class of infertile couples). And often the couple wouldn’t know in advance of marriage whether they were fertile. But then how to explain Indiana’s decision to carve an exception to its prohibition against marriage of close relatives for first cousins 65 or older—a population guaranteed to be infertile because women can’t conceive at that age? Ind. Code § 31-11-1-2. If the state’s only interest in allowing marriage is to protect children, why has it gone out of its way to permit marriage of first cousins only after they are provably infertile? The state must think marriage valuable for something other than just procreation— that even non-procreative couples benefit from marriage.

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And among non-procreative couples, those that raise children, such as same-sex couples with adopted children, gain more from marriage than those who do not raise children, such as elderly cousins; elderly persons rarely adopt.
Indiana has thus invented an insidious form of discrimination: favoring first cousins, provided they are not of the same sex, over homosexuals. Elderly first cousins are permitted to marry because they can’t produce children; homosexuals are forbidden to marry because they can’t produce children. The state’s argument that a marriage of first cousins who are past child-bearing age provides a “model [of] family life for younger, potentially procreative men and women” is impossible to take seriously.
At oral argument the state‘s lawyer was asked whether “Indiana’s law is about successfully raising children,” and since “you agree same-sex couples can successfully raise children, why shouldn’t the ban be lifted as to them?” The lawyer answered that “the assumption is that with oppositesex couples there is very little thought given during the sexual act, sometimes, to whether babies may be a consequence.” In other words, Indiana’s government thinks that straight couples tend to be sexually irresponsible, producing unwanted children by the carload, and so must be pressured (in the form of governmental encouragement of marriage through a combination of sticks and carrots) to marry, but that gay couples, unable as they are to produce children wanted or unwanted, are model parents—model citizens really—so have no need for marriage. Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce

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unwanted children; their reward is to be denied the right to marry. Go figure.
Which brings us to Indiana’s weakest defense of its distinction among different types of infertile couple: its assumption that same-sex marriage cannot contribute to alleviating the problem of “accidental births,” which the state contends is the sole governmental interest in marriage. Suppose the consequences of accidental births are indeed the state’s sole reason for giving marriage a legal status. In advancing this as the reason to forbid same-sex marriage, Indiana has ignored adoption—an extraordinary oversight. Unintentional offspring are the children most likely to be put up for adoption, and if not adopted, to end up in a foster home. Accidental pregnancies are the major source of unwanted children, and unwanted children are a major problem for society, which is doubtless the reason homosexuals are permitted to adopt in most states—including Indiana and Wisconsin.
It’s been estimated that more than 200,000 American children (some 3000 in Indiana and about the same number in Wisconsin) are being raised by homosexuals, mainly homosexual couples. Gary J. Gates, “LGBT Parenting in the United States” 3 (Williams Institute, UCLA School of Law, Feb. 2013), http://williamsinstitute.law.ucla.edu/wp-content/ uploads/lgbt-parenting.pdf; Gates, “Same-Sex Couples in Indiana: A Demographic Summary” (Williams Institute, UCLA School of Law, 2014), http://williamsinstitute.law.uc la.edu/wp-content/uploads/IN-same-sex-couples-demo-aug2014.pdf; Gates, “Same-Sex Couples in Wisconsin: A Demographic Survey” (Williams Institute, UCLA School of Law, Aug. 2014), http://williamsinstitute.law.ucla.edu/wp-conte

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nt/uploads/WI-same-sex-couples-demo-aug-2014.pdf. Gary Gates’s demographic surveys find that among couples who have children, homosexual couples are five times as likely to be raising an adopted child as heterosexual couples in Indiana, and two and a half times as likely as heterosexual couples in Wisconsin.
If the fact that a child’s parents are married enhances the child’s prospects for a happy and successful life, as Indiana believes not without reason, this should be true whether the child’s parents are natural or adoptive. The state’s lawyers tell us that “the point of marriage’s associated benefits and protections is to encourage child-rearing environments where parents care for their biological children in tandem.” Why the qualifier “biological”? The state recognizes that family is about raising children and not just about producing them. It does not explain why the “point of marriage’s associated benefits and protections” is inapplicable to a couple’s adopted as distinct from biological children.
Married homosexuals are more likely to want to adopt than unmarried ones if only because of the many state and federal benefits to which married people are entitled. And so same-sex marriage improves the prospects of unintended children by increasing the number and resources of prospective adopters. Notably, same-sex couples are more likely to adopt foster children than opposite-sex couples are. Gates, “LGBT Parenting in the United States,” supra, at 3. As of 2011, there were some 400,000 American children in foster care, of whom 10,800 were in Indiana and about 6500 in Wisconsin. U.S. Dept. of Health & Human Services, Children’s Bureau, “How Many Children Are in Foster Care in

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the U.S.? In My State?” www.acf.hhs.gov/programs/cb/faq/ foster-care4.
Also, the more willing adopters there are, not only the fewer children there will be in foster care or being raised by single mothers but also the fewer abortions there will be. Carrying a baby to term and putting the baby up for adoption is an alternative to abortion for a pregnant woman who thinks that as a single mother she could not cope with the baby. The pro-life community recognizes this. See, e.g., Students for Life of America, “Adoption, Another Option,” http://studentsforlife.org/resources/organize-an-event/adopt ion: “There may be times when a mother facing an unplanned pregnancy may feel completely unequipped to parent her child. She may feel her only option is to kill her preborn child. Pro-life individuals touch lives by helping women place their baby or child for adoption. It is important to show women on your campus that adoption can be the answer to all of her fears” (emphasis in original).
Consider now the emotional comfort that having married parents is likely to provide to children adopted by same-sex couples. Suppose such a child comes home from school one day and reports to his parents that all his classmates have a mom and a dad, while he has two moms (or two dads, as the case may be). Children, being natural conformists, tend to be upset upon discovering that they’re not in step with their peers. If a child’s same-sex parents are married, however, the parents can tell the child truthfully that an adult is permitted to marry a person of the opposite sex, or if the adult prefers as some do a person of his or her own sex, but that either way the parents are married and therefore the child can feel secure in being the child of a married couple. Con-

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versely, imagine the parents having to tell their child that same-sex couples can’t marry, and so the child is not the child of a married couple, unlike his classmates.
Indiana permits joint adoption by homosexuals (Wisconsin does not). But an unmarried homosexual couple is less stable than a married one, or so at least the state’s insistence that marriage is better for children implies. If marriage is better for children who are being brought up by their biological parents, it must be better for children who are being brought up by their adoptive parents. The state should want homosexual couples who adopt children—as, to repeat, they are permitted to do—to be married, if it is serious in arguing that the only governmental interest in marriage derives from the problem of accidental births. (We doubt that it is serious.)
The state’s claim that conventional marriage is the solution to that problem is belied by the state’s experience with births out of wedlock. Accidental pregnancies are found among married couples as well as unmarried couples, and among individuals who are not in a committed relationship and have sexual intercourse that results in an unintended pregnancy. But the state believes that married couples are less likely to abandon a child of the marriage even if the child’s birth was unintended. So if the state’s policy of trying to channel procreative sex into marriage were succeeding, we would expect a drop in the percentage of children born to an unmarried woman, or at least not an increase in that percentage. Yet in fact that percentage has been rising even since Indiana in 1997 reenacted its prohibition of same-sex marriage (thus underscoring its determined opposition to such marriage) and for the first time declared that it would

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not recognize same-sex marriages contracted in other states or abroad. The legislature was fearful that Hoosier homosexuals would flock to Hawaii to get married, for in 1996 the Hawaii courts appeared to be moving toward invalidating the state’s ban on same-sex marriage, though as things turned out Hawaii did not authorize such marriage until 2013.
In 1997, the year of the enactment, 33 percent of births in Indiana were to unmarried women; in 2012 (the latest year for which we have statistics) the percentage was 43 percent. The corresponding figures for Wisconsin are 28 percent and 37 percent and for the nation as a whole 32 percent and 41 percent. (The source of all these data is Kids Count Data Center, “Births to Unmarried Women,” http://datacenter. kidscount.org/data/tables/7-births-to-unmarried-women#det ailed/2/16,51/false/868,867,133,38,35/any/257,258.) There is no indication that these states’ laws, ostensibly aimed at channeling procreation into marriage, have had any such effect.
A degree of arbitrariness is inherent in government regulation, but when there is no justification for government’s treating a traditionally discriminated-against group significantly worse than the dominant group in the society, doing so denies equal protection of the laws. One wouldn’t know, reading Wisconsin’s brief, that there is or ever has been discrimination against homosexuals anywhere in the United States. The state either is oblivious to, or thinks irrelevant, that until quite recently homosexuality was anathematized by the vast majority of heterosexuals (which means, the vast majority of the American people), including by most Americans who were otherwise quite liberal. Homosexuals had, as homosexuals, no rights; homosexual sex was criminal

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(though rarely prosecuted); homosexuals were formally banned from the armed forces and many other types of government work (though again enforcement was sporadic); and there were no laws prohibiting employment discrimination against homosexuals. Because homosexuality is more easily concealed than race, homosexuals did not experience the same economic and educational discrimination, and public humiliation, that African-Americans experienced. But to avoid discrimination and ostracism they had to conceal their homosexuality and so were reluctant to participate openly in homosexual relationships or reveal their homosexuality to the heterosexuals with whom they associated. Most of them stayed “in the closet.” Same-sex marriage was out of the question, even though interracial marriage was legal in most states. Although discrimination against homosexuals has diminished greatly, it remains widespread. It persists in statutory form in Indiana and in Wisconsin’s constitution.
At the very least, “a [discriminatory] law must bear a rational relationship to a legitimate governmental purpose.” Romer v. Evans, supra, 517 U.S. at 635. Indiana’s ban flunks this undemanding test.
Wisconsin’s prohibition of same-sex marriage, to which we now turn, is found in a 2006 amendment to the state’s constitution. The amendment, Article XIII, § 13, provides: “Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.” Opponents of same-sex marriage in Indiana have tried for a number of years to insert a prohibition of such marriages into the state’s constitution, as yet without suc-

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cess. A number of large businesses in Indiana oppose such a constitutional amendment. With 19 states having authorized same-sex marriage, the businesses may feel that it’s only a matter of time before Indiana joins the bandwagon, and that a constitutional amendment would impede the process— and also would signal to Indiana’s gay and lesbian citizens, some of whom are employees of these businesses, that they are in a very unwelcoming environment, with statutory reform blocked. (On the attitude of business in Indiana and Wisconsin to same-sex marriage, see, e.g., Nick Halter, “Target Files Court Papers Supporting Same-Sex Marriage in Wisconsin and Indiana,” Aug. 5, 2014, www.bizjournals.com /twincities/news/2014/08/05/target-amicus-same-sex-marriag e-wisconsin-indiana.html.)
Wisconsin’s brief in defense of its prohibition of same-sex marriage adopts Indiana’s ground (“accidental births”) but does not amplify it. Its “accidental births” rationale for prohibiting same-sex marriage is, like Indiana’s, undermined by a “first cousin” exemption—but, as a statutory matter at least, an even broader one: “No marriage shall be contracted … between persons who are nearer of kin than 2nd cousins except that marriage may be contracted between first cousins where the female has attained the age of 55 years or where either party, at the time of application for a marriage license, submits an affidavit signed by a physician stating that either party is permanently sterile.” Wis. Stat. § 65.03(1). Indiana’s marriage law, as we know, authorizes first-cousin marriages if both cousins are at least 65 years old. But—and here’s the kicker—Indiana apparently will as a matter of comity recognize any marriage lawful where contracted, including therefore (as an Indiana court has held) marriages of first cousins contracted in Tennessee, a state that places no

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restrictions on such marriages. See Tenn. Code Ann. § 36-3101; Mason v. Mason, 775 N.E.2d 706, 709 (Ind. App. 2002). Indiana has not tried to explain to us the logic of recognizing marriages of fertile first cousins (prohibited in Indiana) that happen to be contracted in states that permit such marriages, but of refusing, by virtue of the 1997 amendment, to recognize same-sex marriages (also prohibited in Indiana) contracted in states that permit them. This suggests animus against same-sex marriage, as is further suggested by the state’s inability to make a plausible argument for its refusal to recognize same-sex marriage.
But back to Wisconsin, which makes four arguments of its own against such marriage: First, limiting marriage to heterosexuals is traditional and tradition is a valid basis for limiting legal rights. Second, the consequences of allowing same-sex marriage cannot be foreseen and therefore a state should be permitted to move cautiously—that is, to do nothing, for Wisconsin does not suggest that it plans to take any steps in the direction of eventually authorizing such marriage. Third, the decision whether to permit or forbid samesex marriage should be left to the democratic process, that is, to the legislature and the electorate. And fourth, same-sex marriage is analogous in its effects to no-fault divorce, which, the state argues, makes marriage fragile and unreliable—though of course Wisconsin has no-fault divorce, and it’s surprising that the state’s assistant attorney general, who argued the state’s appeal, would trash his own state’s law. The contention, built on the analogy to no-fault divorce and sensibly dropped in the state’s briefs in this court—but the assistant attorney general could not resist resuscitating it at the oral argument—is that, as the state had put it in submissions to the district court, allowing same-sex marriage cre-

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ates a danger of “shifting the public understanding of marriage away from a largely child-centric institution to an adult-centric institution focused on emotion.” No evidence is presented that same-sex marriage is on average less “childcentric” and more emotional than an infertile marriage of heterosexuals, or for that matter that no-fault divorce has rendered marriage less “child-centric.”
The state’s argument from tradition runs head on into Loving v. Virginia, 388 U.S. 1 (1967), since the limitation of marriage to persons of the same race was traditional in a number of states when the Supreme Court invalidated it. Laws forbidding black-white marriage dated back to colonial times and were found in northern as well as southern colonies and states. See Peggy Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America (2009). Tradition per se has no positive or negative significance. There are good traditions, bad traditions pilloried in such famous literary stories as Franz Kafka’s “In the Penal Colony” and Shirley Jackson’s “The Lottery,” bad traditions that are historical realities such as cannibalism, foot-binding, and suttee, and traditions that from a public-policy standpoint are neither good nor bad (such as trick-or-treating on Halloween). Tradition per se therefore cannot be a lawful ground for discrimination—regardless of the age of the tradition. Holmes thought it “revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.” Oliver Wendell Holmes, Jr., “The Path of the Law,” 10 Harv. L. Rev. 457, 469 (1897). Henry IV (the English Henry IV, not the French one—Holmes presumably was referring to the former) died in 1413. Criticism of homosexuality is far older. In Leviticus 18:22 we read that “thou shalt not lie with mankind, as with womankind: it is abomination.”

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The limitation on interracial marriage invalidated in Loving was in one respect less severe than Wisconsin’s law. It did not forbid members of any racial group to marry, just to marry a member of a different race. Members of different races had in 1967, as before and since, abundant possibilities for finding a suitable marriage partner of the same race. In contrast, Wisconsin’s law, like Indiana’s, prevents a homosexual from marrying any person with the same sexual orientation, which is to say (with occasional exceptions) any person a homosexual would want or be willing to marry.
Wisconsin points out that many venerable customs appear to rest on nothing more than tradition—one might even say on mindless tradition. Why do men wear ties? Why do people shake hands (thus spreading germs) or give a peck on the cheek (ditto) when greeting a friend? Why does the President at Thanksgiving spare a brace of turkeys (two out of the more than 40 million turkeys killed for Thanksgiving dinners) from the butcher’s knife? But these traditions, while to the fastidious they may seem silly, are at least harmless. If no social benefit is conferred by a tradition and it is written into law and it discriminates against a number of people and does them harm beyond just offending them, it is not just a harmless anachronism; it is a violation of the equal protection clause, as in Loving. See 388 U.S. at 8–12.
Against this the state argues in its opening brief that Loving “should be read as recognizing the constitutional restrictions on the government’s ability to infringe the freedom of individuals to decide for themselves how to arrange their own private and domestic affairs.” But that sounds just like what the government of Wisconsin has done: told homosexuals that they are forbidden to decide for themselves how to

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arrange their private and domestic affairs. If they want to marry, they have to marry a person of the opposite sex.
The state elaborates its argument from the wonders of tradition by asserting, again in its opening brief, that “thousands of years of collective experience has [sic] established traditional marriage, between one man and one woman, as optimal for the family, society, and civilization.” No evidence in support of the claim of optimality is offered, and there is no acknowledgment that a number of countries permit polygamy—Syria, Yemen, Iraq, Iran, Egypt, Sudan, Morocco, and Algeria—and that it flourishes in many African countries that do not actually authorize it, as well as in parts of Utah. (Indeed it’s been said that “polygyny, whereby a man can have multiple wives, is the marriage form found in more places and at more times than any other.” Stephanie Coontz, Marriage, a History: How Love Conquered Marriage 10 (2006).) But suppose the assertion is correct. How does that bear on same-sex marriage? Does Wisconsin want to push homosexuals to marry persons of the opposite sex because opposite-sex marriage is “optimal”? Does it think that allowing same-sex marriage will cause heterosexuals to convert to homosexuality? Efforts to convert homosexuals to heterosexuality have been a bust; is the opposite conversion more feasible?
Arguments from tradition must be distinguished from arguments based on morals. Many unquestioned laws are founded on moral principles that cannot be reduced to costbenefit analysis. Laws forbidding gratuitous cruelty to animals, and laws providing public assistance for poor and disabled persons, are examples. There is widespread moral opposition to homosexuality. The opponents are entitled to

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their opinion. But neither Indiana nor Wisconsin make a moral argument against permitting same-sex marriage.
The state’s second argument is: “go slow”: maintaining the prohibition of same-sex marriage is the “prudent, cautious approach,” and the state should therefore be allowed “to act deliberately and with prudence—or, at the very least, to gather sufficient information—before transforming this cornerstone of civilization and society.” There is no suggestion that the state has any interest in gathering information, for notice the assumption in the quoted passage that the state already knows that allowing same-sex marriage would transform a “cornerstone of civilization and society,” namely monogamous heterosexual marriage. One would expect the state to have provided some evidence, some reason to believe, however speculative and tenuous, that allowing same-sex marriage will or may “transform” marriage. At the oral argument the state’s lawyer conceded that he had no knowledge of any study underway to determine the possible effects on heterosexual marriage in Wisconsin of allowing same-sex marriage. He did say that same-sex marriage might somehow devalue marriage, thus making it less attractive to opposite-sex couples. But he quickly acknowledged that he hadn’t studied how same-sex marriage might harm marriage for heterosexuals and wasn’t prepared to argue the point. Massachusetts, the first state to legalize same-sex marriage, did so a decade ago. Has heterosexual marriage in Massachusetts been “transformed”? Wisconsin’s lawyer didn’t suggest it has been.
He may have been gesturing toward the concern expressed by some that same-sex marriage is likely to cause the heterosexual marriage rate to decline because heterosex-

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uals who are hostile to homosexuals, or who whether hostile to them or not think that allowing them to marry degrades the institution of marriage (as might happen if people were allowed to marry their pets or their sports cars), might decide not to marry. Yet the only study that we’ve discovered, a reputable statistical study, finds that allowing same-sex marriage has no effect on the heterosexual marriage rate. Marcus Dillender, “The Death of Marriage? The Effects of New Forms of Legal Recognition on Marriage Rates in the United States,” 51 Demography 563 (2014). No doubt there are more persons more violently opposed to same-sex marriage in states that have not yet permitted it than in states that have, yet in all states there are opponents of same-sex marriage. But they would tend also to be the citizens of the state who were most committed to heterosexual marriage (devout Catholics, for example).
No one knows exactly how many Americans are homosexual. Estimates vary from about 1.5 percent to about 4 percent. The estimate for Wisconsin is 2.8 percent, which includes bisexual and transgendered persons. Gary J. Gates & Frank Newport, “LGBT Percentage Highest in D.C., Lowest in North Dakota,” Gallup (Feb. 15, 2013), www.gallup.com/ poll/160517/lgbt-percentage-highest-lowest-north-dakota.as px. Given how small the percentage is, it is sufficiently implausible that allowing same-sex marriage would cause palpable harm to family, society, or civilization to require the state to tender evidence justifying its fears; it has provided none.
The state falls back on Justice Alito’s statement in dissent in United States v. Windsor, supra, 133 S. Ct. at 2716, that “at present, no one—including social scientists, philosophers,

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and historians—can predict with any certainty what the long-term ramifications of widespread acceptance of samesex marriage will be. And judges are certainly not equipped to make such an assessment.” What follows, if prediction is impossible? Justice Alito thought what follows is that the Supreme Court should not interfere with Congress’s determination in the Defense of Marriage Act that “marriage,” for purposes of entitlement to federal marital benefits, excludes same-sex marriage even if lawful under state law. But can the “long-term ramifications” of any constitutional decision be predicted with certainty at the time the decision is rendered?
The state does not mention Justice Alito’s invocation of a moral case against same-sex marriage, when he states in his dissent that “others explain the basis for the institution in more philosophical terms. They argue that marriage is essentially the solemnizing of a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so.” Id. at 2718. That is a moral argument for limiting marriage to heterosexuals. The state does not mention the argument because as we said it mounts no moral arguments against same-sex marriage.
We know that many people want to enter into a same-sex marriage (there are millions of homosexual Americans, though of course not all of them want to marry), and that forbidding them to do so imposes a heavy cost, financial and emotional, on them and their children. What Wisconsin has not told us is whether any heterosexuals have been harmed by same-sex marriage. Obviously many people are distressed by the idea or reality of such marriage; otherwise these two cases wouldn’t be here. But there is a difference,

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famously emphasized by John Stuart Mill in On Liberty (1869), between the distress that is caused by an assault, or a theft of property, or an invasion of privacy, or for that matter discrimination, and the distress that is caused by behavior that disgusts some people but does no (other) harm to them. Mill argued that neither law (government regulation) nor morality (condemnation by public opinion) has any proper concern with acts that, unlike a punch in the nose, inflict no temporal harm on another person without consent or justification. The qualification temporal is key. To be the basis of legal or moral concern, Mill argued, the harm must be tangible, secular, material—physical or financial, or, if emotional, focused and direct—rather than moral or spiritual. Mill illustrated nontemporal harm with revulsion against polygamy in Utah (he was writing before Utah agreed, as a condition of being admitted to the union as a state, to amend its constitution to prohibit polygamy). The English people were fiercely critical of polygamy wherever it occurred. As they were entitled to be. But there was no way polygamy in Utah could have adverse effects in England, 4000 miles away. Mill didn’t think that polygamy, however offensive, was a proper political concern of England.
Similarly, while many heterosexuals (though in America a rapidly diminishing number) disapprove of same-sex marriage, there is no way they are going to be hurt by it in a way that the law would take cognizance of. Wisconsin doesn’t argue otherwise. Many people strongly disapproved of interracial marriage, and, more to the point, many people strongly disapproved (and still strongly disapprove) of homosexual sex, yet Loving v. Virginia invalidated state laws banning interracial marriage, and Lawrence v. Texas invalidated state laws banning homosexual sex acts.

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Though these decisions are in the spirit of Mill, Mill is not the last word on public morality. But Wisconsin like Indiana does not base its prohibition of same-sex marriage on morality, perhaps because it believes plausibly that Lawrence rules out moral objections to homosexuality as legitimate grounds for discrimination.
In passing, Wisconsin in its opening brief notes that it “recogniz[es] domestic partnerships.” Indeed it does: Wis. Stat. ch. 770. And the domestic partners must be of the same sex. Id., § 770.05(5). But the preamble to the statute states: “The legislature … finds that the legal status of domestic partnership as established in this chapter is not substantially similar to that of marriage,” § 770.001, citing for this proposition a decision by a Wisconsin intermediate appellate court. Appling v. Doyle, 826 N.W.2d 666 (Wis. App. 2012), affirmed, 2014 WI 96 (Wis. July 31, 2014). Indeed that is what the court held. It pointed out that chapter 770 doesn’t specify the rights and obligations of the parties to a domestic partnership. Rather you must go to provisions specifying the rights and obligations of married persons and see whether a provision that you’re concerned with is made expressly applicable to domestic partnerships, as is for example the provision that gives a surviving spouse the deceased spouse’s interest in their home. 826 N.W.2d at 668. But as the court further explained, the rights and obligations of domestic partners are far more limited than those of married persons. See id. at 682–86. (For example, only spouses may jointly adopt a child. Id. at 685.) They have to be far more limited, because of the state’s constitutional provision quoted above that “a legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recog-

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nized.” Wis. Const. Art. XIII, § 13. Domestic partnership in Wisconsin is not and cannot be marriage by another name.
It is true that because the state does not regard same-sex marriages contracted in other states as wholly void (though they are not “recognized” in Wisconsin), citizens of Wisconsin who contract same-sex marriages in states in which such marriages are legal are not debarred from receiving some of the federal benefits to which legally married persons (including parties to a same-sex marriage) are entitled. Not to all those benefits, however, because a number of them are limited by federal law to persons who reside in a state in which their marriages are recognized. These include benefits under the Family & Medical Leave Act, see 29 C.F.R. § 825.122(b), and access to a spouse’s social security benefits. See 42 U.S.C. § 416(h)(1)(A)(i).
So look what the state has done: it has thrown a crumb to same-sex couples, denying them not only many of the rights and many of the benefits of marriage but also of course the name. Imagine if in the 1960s the states that forbade interracial marriage had said to interracial couples: “you can have domestic partnerships that create the identical rights and obligations of marriage, but you can call them only ‘civil unions’ or ‘domestic partnerships.’ The term ‘marriage’ is reserved for same-race unions.” This would give interracial couples much more than Wisconsin’s domestic partnership statute gives same-sex couples. Yet withholding the term “marriage” would be considered deeply offensive, and, having no justification other than bigotry, would be invalidated as a denial of equal protection.
The most arbitrary feature of Wisconsin’s treatment of same-sex couples is its refusal to allow couples in domestic

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partnerships to adopt jointly, as married heterosexual couples are allowed to do (and in Indiana, even unmarried ones). The refusal harms the children, by telling them they don’t have two parents, like other children, and harms the parent who is not the adoptive parent by depriving him or her of the legal status of a parent. The state offers no justification.
Wisconsin’s remaining argument is that the ban on samesex marriage is the outcome of a democratic process—the enactment of a constitutional ban by popular vote. But homosexuals are only a small part of the state’s population— 2.8 percent, we said, grouping transgendered and bisexual persons with homosexuals. Minorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law.
In its reply brief Indiana adopts Wisconsin’s democracy argument, adding that “homosexuals are politically powerful out of proportion to their numbers.” No evidence is presented by the state to support this contention. It is true that an increasing number of heterosexuals support same-sex marriage; otherwise 11 states would not have changed their laws to permit such marriage (the other 8 states that allow same-sex marriage do so as a result of judicial decisions invalidating the states’ bans). No inference of manipulation of the democratic process by homosexuals can be drawn, however, any more than it could be inferred from the enactment of civil rights laws that African-Americans “are politically powerful out of proportion to their numbers.” It is to the credit of American voters that they do not support only laws that are in their palpable self-interest. They support laws

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punishing cruelty to animals, even though not a single animal has a vote.
To return to where we started in this opinion, more than unsupported conjecture that same-sex marriage will harm heterosexual marriage or children or any other valid and important interest of a state is necessary to justify discrimination on the basis of sexual orientation. As we have been at pains to explain, the grounds advanced by Indiana and Wisconsin for their discriminatory policies are not only conjectural; they are totally implausible.
For completeness we note the ultimate convergence of our simplified four-step analysis with the more familiar, but also more complex, approach found in many cases. In SmithKline Beecham Corp. v. Abbott Laboratories, 740 F.3d 471, 483 (9th Cir. 2014), the Ninth Circuit concluded, based on a reading of the Supreme Court’s decisions in Lawrence and Windsor, that statutes that discriminate on the basis of sexual orientation are subject to “heightened scrutiny”—and in doing so noted that Windsor, in invalidating the Defense of Marriage Act, had balanced the Act’s harms and offsetting benefits: “Notably absent from Windsor’s review of DOMA are the ‘strong presumption’ in favor of the constitutionality of laws and the ‘extremely deferential’ posture toward government action that are the marks of rational basis review. … In its parting sentences, Windsor explicitly announces its balancing of the government’s interest against the harm or injury to gays and lesbians: ‘The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.’ 133 S.

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Ct. at 2696 (emphasis added). Windsor’s balancing is not the work of rational basis review.”
The Supreme Court also said in Windsor that “the Act’s demonstrated purpose is to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law.” 133 S. Ct. at 2693–94. A second-class marriage would be a lot better than the cohabitation to which Indiana and Wisconsin have consigned same-sex couples.
The states’ concern with the problem of unwanted children is valid and important, but their solution is not “tailored” to the problem, because by denying marital rights to same-sex couples it reduces the incentive of such couples to adopt unwanted children and impairs the welfare of those children who are adopted by such couples. The states’ solution is thus, in the familiar terminology of constitutional discrimination law, “overinclusive.” It is also underinclusive, in allowing infertile heterosexual couples to marry, but not same-sex couples.
Before ending this long opinion we need to address, though only very briefly, Wisconsin’s complaint about the wording of the injunction entered by the district judge. Its lawyers claim to fear the state’s being held in contempt because it doesn’t know what measures would satisfy the injunction’s command that all relevant state officials “treat same-sex couples the same as different sex couples in the context of processing a marriage license or determining the rights, protections, obligations or benefits of marriage.” If the state’s lawyers really find this command unclear, they should ask the district judge for clarification. (They should have done so already; they haven’t.) Better yet, they should

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40

Nos. 14-2386 to 14-2388, 14-2526

draw up a plan of compliance and submit it to the judge for approval.
The district court judgments invalidating and enjoining these two states’ prohibitions of same-sex marriage are
AFFIRMED.

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UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Everett McKinley Dirksen United States Courthouse Room 2722 ‐ 219 S. Dearborn Street Chicago, Illinois 60604

Office of the Clerk Phone: (312) 435‐5850 www.ca7.uscourts.gov

September 4, 2014

FINAL JUDGMENT

Before:

RICHARD A. POSNER, Circuit Judge ANN CLAIRE WILLIAMS, Circuit Judge DAVID F. HAMILTON, Circuit Judge

MARILYN RAE BASKIN, et al., Plaintiffs ‐ Appellees

Nos.: 14‐2386 to 14‐2388 v.

PENNY BOGAN, et al., Defendants ‐ Appellants
VIRGINIA WOLF, et al., Plaintiffs ‐ Appellees

No.: 14‐2526

v.

SCOTT WALKER, et al., Defendants ‐ Appellants
Originating Case Information:
District Court Nos: 1:14‐cv‐00355‐RLY‐TAB, 1:14‐cv‐00404‐RLY‐TAB, 1:14‐cv‐00406‐RLY‐MJD Southern District of Indiana, Indianapolis Division District Judge Richard L. Young
Originating Case Information:
District Court No: 3:14‐cv‐00064‐bbc Western District of Wisconsin District Judge Barbare B. Crabb

The judgment of the District Court is AFFIRMED, with costs, in accordance with the decision of this court entered on this date.

form name: c7_FinalJudgment(form ID: 132)

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IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT Nos. 14-2386, 14-2387, 14-2388
MARILYN RAE BASKIN, et al., Plaintiffs/Appellees, v.
PENNY BOGAN, in her official capacity as Boone County Clerk, et al., Defendants/Appellants.
On Appeal from the United States District Court for the Southern District of Indiana, Nos. 1:14-cv-355-RLY-TAB, 1:14-cv-404-RLY-TAB,
1:14-cv-406-RLY-MJD The Honorable Richard L. Young, Chief Judge
MOTION FOR STAY OF MANDATE PENDING FINAL DISPOSITION OF PETITION FOR WRIT OF CERTIORARI
Penny Bogan, as Clerk of Boone County, Indiana; Gregory F. Zoeller, as Attorney General of Indiana ; W illiam C. VanNess I I, M.D., as C ommissioner of the In diana S tate Department of Health; Mike Alley, as Comm issioner of the Indiana D epartment of Revenue; Steve Russo, as Executive Director of the Indiana Public Retire ment System; and Brian Abbott, Chris Atkins, Ken Cochran, Stev e Daniels, Jodi Golden, Mich ael Pinkham , Kyle Rosebrough, and Bret Swanson, as Mem bers of the Board of Trustees of the Indiana Public Retirem ent System, (hereaf ter, the “State ”) a ll respec tfully m ove the Court, pursuant to Federal Rule of Appellate Procedure 41(d), for an immediate stay of the mandate pending the final disposition by the U.S. Supreme Court of their fully submitted petition for writ of certiorari.

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INTRODUCTION On June 25, 2014, the dist rict court granted the Baskin, Fujii, and Lee Plaintiffs’ motions for summ ary judgm ent in a consolidated opinion and entered a final judgm ent and perm anent injunctions. That sam e day, along with its noti ce of appeal and docketing statem ent, the State filed in the district court an Em ergency Moti on for Stay Pending Appeal. On June 27, 2014, having received no response from th e dis trict court, the State fi led in this Cour t a com bined Emergency Motion for Stay Pending Appeal in a ll three cases. Doc. No . 11. The Court granted the motion that same day and also consolidated the three appeals. Doc. Nos. 10, 12. On June 30, 2014, Plaintiffs Quasney and Sandl er filed an Emergency Motion to L ift the Court’s Stay in Part, requesting that the Court “lift the Court’s June 27, 2014 stay as it applies to them and their family.” Doc. No. 13 at 20. The Court granted Quasney and Sandler’s m otion to lift the stay “on an emergency basis pending further order of the court.” Doc. No. 20. On July 1, 2014, the Lee Plaintiffs filed an Em ergency Motion to Lift the Court’s Stay in Part, requesting that “the stay should be lifted as regards all aff ected Indiana first respo nders or alternatively, only the Lee Plaintiffs.” Doc. No. 19 at 14. The Court denied this motion on July 2, 2014. Doc. No. 21. The Court entered judgm ent against the St ate in this m atter on September 4, 2014. On September 9, 2014, the State filed a petition for writ of certiorari with the Suprem e Cour t presenting the following questions: (1) Whether the Due Process and Equal Protection Clauses of the Fourteenth Amendment permit States to d efine marriage as a legal union between one m an and one woman; and (2) Whether the Due Process and Equal Protection Clauses permit States to treat as void same-sex marri ages fro m other jurisdictions. The Supreme Court immediately docketed that petition as No. 14-277. Docket, Bogan v. Baskin, No. 14-277 (U.S. docketed Sept.

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9, 2014), h ttp://www.supremecourt.gov/Search.aspx?FileName= /docketfiles/14-277.htm. The same day, Plaintiffs-Appelle es filed their re sponse in support of certiorari, and th e State waiv ed reply. The case is thu s f ully sub mitted to th e Court on Petition f or W rit of Certio rari, and Supreme Court personn el advise tha t the Petition will be bef ore the Court at its f irst conference of the coming October term on September 29, 2014.
Meanwhile, the Sup reme Court has unm istakably indicated that lower court orders invalidating States ’ trad itional m arriage laws sh ould not dis rupt the s tatus quo until the Court resolves the issue, twice staying judgments and injunctions requiring licensing or rec ognition of same-sex marriages. McQuigg v. B ostic, 2014 WL 4096232 (U.S. Aug. 20, 2014); Herbert v. Kitchen, 134 S. Ct. 893 (2014). The Court even stay ed an injunction that would have required Utah to recognize same-sex marriages solemnized within that State during the period the original injunction was in effe ct. Herbert v. Evans , 2014 W L 3557112 (U.S. July 18, 2014). The Supreme Court thus views the ultimate, orderly resolution of the same-sex marriage question and any resu lting relief as its exclus ive provin ce. Staying the m andate in th is m atter pending resolution of the State’s cert petition would appropriately preserve the status quo consistent with the Supreme Court’s orders in McQuigg and the two Herbert cases.
STANDARD FOR GRANTING A STAY OF MANDATE A m otion for stay of m andate “must show th at the c ertiorari p etition would pres ent a substantial question and that there is good cause for a stay.” Fed. R. App. P. 41(d)(2)(A). “[T]he party seeking the stay must dem onstrate both a reasonable probability of succeeding on the merits and irreparable injury absent a stay.” Senne v. Vill. of Palatine , 695 F.3d 617, 619 (7th Cir. 2012) (citation and internal quotation marks omitted). Regarding the form er, “in order to demonstrate a reasonab le prob ability of succeedi ng on th e m erits of the proposed certiorari

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petition, a party m ust demonstrate a reasonable probability that four Justices will vote to grant certiorari and that five Justices will vote to reverse the judgment of this court.” Id.
ISSUES RAISED IN THE PETITION FOR WRIT OF CERTIORARI As noted above, the issues raised in the Petition for Writ of Certiorari are as follows: 1. Whether th e Due Pro cess and E qual Pro tection Clauses of the F ourteenth Amendment permit States to define marriage as a legal union between one man and one woman. 2. Whether the Due Process and Equal Prot ection Clauses p ermit States to tr eat as void same-sex marriages from other jurisdictions.
ARGUMENT I. The Supreme Court Is Likely to Gran t Certio rari a nd There Is a Reason able
Probability that the Court Will Reverse the Judgment of This Court 1. During the 2012 October Term , the Supr eme Court granted certiorari in Hollingsworth v. Perry , 133 S. Ct. 2652 (2013), which presente d the issue whethe r States could define marriage as being between one man and one wom an. It also took a case to address the validity of Section 3 of the Defense of Marri age Act, which sim ilarly defined m arriage for federal purposes. United States v. Windsor , 133 S. Ct. 2675 (2013). B y taking these cases, the Court in effect acknowle dged the national im portance of the core sam e-sex marriage issues and announced its willingness to resolve them. Unfortunately, the Court did not reach the m erits of the issue in Hollingsworth because no actual d efendants in that case appealed th e district court’s judgm ent. Hol ding that the sponsors of Proposition 8 did not have standing to appeal, the Court vacated the Nin th Circuit’s decision invaliding Calif ornia’s traditional marriage definition but left intact the d istrict court’s judgment to the sam e effect. Hollingsworth, 133 S. Ct. at 2668. The sam e day, it issued its opinion in Windsor invalidating Section 3 of DOMA, not b ecause the Constitution itself protects
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same-sex marriage, but on the grounds that DOMA had “the purpose and effect to disparage and

to inju re th ose whom the State, by its marriage laws, sought to protect in personhood and

dignity.” Windsor, 133 S. Ct. at 2696 (emphasis added).

After the Court decid ed Windsor, a flurry of federal decisions have struck down Sta tes’

traditional m arriage laws under th e Fourteenth Am endment, although the streak was recently

broken in L ouisiana, Robicheaux v. Caldwell , Nos. 13-5090, 14-97, 14-327, 2014 WL 4347099

(E.D. La. Sept. 3, 2014). W hat is more, a circu it conflict alrea dy exists on the core sam e-sex

marriage issues. Contrast Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 868 (8th Cir. 2006)

(upholding agains t a F ourteenth A mendment challenge N ebraska’s constitu tional provis ion

defining m arriage as between a m an and a wom an), with Baskin v. B ogan, Nos. 14-2386, 14-

2387, 14-2388, 14-2526, 2014 WL 4359059 (7th Cir.

Sept. 4, 2014) (s triking down the

traditional marriage laws of Indiana and Wisconsin), Bostic v. Schaefer, Nos. 14-1167, 14-1169,

14-1173, 2014 W L 3702493 (4th Cir. July 28, 2014) (Virginia), Bishop v. Smith , Nos. 14-5003,

14-5006, 2014 WL 3537847 (10th Cir. July 18, 2014) (Oklahom a), and Kitchen v. Herbert, 755

F.3d 1193 (10th Cir. 2014) (Utah). And other circuit courts, including the Fifth, Sixth, and Ninth

Circuits (where cases challenging traditional marriage definitions are pending), may soon deepen

the split. See Erik Eckholm , One Court, Three Judges and F our States with Gay Marriage

Cases, N.Y. Tim es, Aug. 6, 2014, http://www .nytimes.com/2014/08/07/us/one-court-three-

judges-and-four-states-with-gay-marriage-cases.html.

Given the Suprem e Court’s dem onstrated inte rest in the sam e-sex m arriage iss ues in

Hollingsworth and Windsor, the m any cases pending around the country that present the core

marriage issues, and the already-extant circuit conflict, conventional wisdom holds that the

Supreme Court will decide the co re sam e-sex marriage issues by th e clos e of this com ing

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October Term. See Erik Eckholm , Wave of A ppeals Expected to Turn the T ide on Same-Sex Marriage B ans, N.Y. Tim es, Mar. 22, 2014, http:// www.nytimes.com/2014/03/23/us/appealsexpected-to-block-more-marriage-bans-on-fast-track-to-justices.html. The only question is which cases the Court will use as vehicles for doing so.
At its September 29, 2014, conference, the Cour t will con sider cert p etitions from not only this case, but also from Utah, see Petition for Writ of Certiorari, Herbert v. Kitchen, No. 14124 (U.S. filed Aug. 5, 2014); Oklahom a, see Petition f or W rit of Certiorar i, Smith v. Bishop , No. 14-136 (U.S. filed Aug. 6, 2014); and Virginia, see Petitions f or W rit of Certio rari in McQuigg v. Bostic, No. 14-251 (U.S. filed Aug. 29, 2014), Schaefer v. Bostic, No. 14-225 (U.S. filed Aug. 22, 2014), and Rainey v. Bostic, No. 14-153 (U.S. filed Aug. 8, 2014).
This case m ay pres ent the cleanes t vehicle ye t f or the Cou rt to resolv e core sam e-sex marriage issues. First, there are no potentially distracting (or even derailing) defendant standing issues, and full redress is possible because Petitioners include not only a county clerk who issues marriage licenses, but also state officials with act ual autho rity to conf er concrete benefits of recognition (rather than m ere gene ral supervisory authority) in the event Respondents prevail. Second, the Attorney General of Indiana provides a robust defense of the law. Third, both licensure of in-state m arriages and recognition of out-of-state m arriages have been thoroughly briefed and argued. F inally, Indiana does not offer sam e-sex couples a marriage substitute such as dom estic partnerships or civil unions that could com plicate ev aluation of the co re m arriage issues.
Furthermore, if the Cour t determines that it would be best to address same-sex m arriage through m ultiple cases, this cas e has an additio nal feature that recomm ends it for inclu sion. Unlike the other circuits to invalidate traditional marriage under the Fourteenth Amendment, this

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Court struck down Indiana’s traditional m arriage laws solely on eq ual protection grounds. Baskin v. Bogan, Nos. 14-2386, 14-2387, 14-2388, 14-2526, 2014 W L 4359059, at *4, *21 (7th Cir. Sept. 4, 2014). The case therefore provide s an equal protection fo il to the fundam entalrights m ethodology used to strike down States’ la ws in the other sam e-sex m arriage cases pending before the Court, which may assist the Court in addressing all relevant issues.
Accordingly, it is ve ry likely that at least f our Justices will vote to grant certiorari in this case, or at the very leas t one of the sam e-sex marriage cases pending before it. And even if the Court does not set this case for plenary review, it is likely to hold the case wh ile considering the same-sex marriage issu es in anothe r case. It w ould be p roper, therefore, to p reserve the status quo pending the Court’s likely resolution of the same-sex marriage issues this Term.
2. On the m erits, there is a reasonable proba bility that the Court will r eject the argument that the Constitution requires all States to license and recognize same-sex marriages.
First, while this Court appears to have a pplied som e for m of heightened scrutiny, the Supreme Court is likely to conclude that ra tional basis review is appropriate. Indiana’s traditional marriage definition on its face does not discriminate against homosexuals, as the prior Indiana marriages of Plaintiffs Ever ly, Judkins, and Carver confirm . See Baskin Doc. Nos. 36-3 at 2, 36-4 at 2, 36-6 at 2. And while the In diana m arriage law undoubtedly has a disparate impact on hom osexuals, disparate im pact al one is not a basis for inferring invidious discrimination. Washington v. Davis , 426 U.S. 229, 242 (1976). Furtherm ore, despite several opportunities to do so, the Court has never treated homosexuals as a specially protected class. See, e.g., United States v. Windsor , 133 S. Ct. 2675, 2696 (2013); Lawrence v. Texa s, 539 U.S. 558, 578-79 (2003); Romer v. Evans, 517 U.S. 620, 632, 634-35 (1996).

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Accordingly, the Supre me Court is like ly to apply only rational basis review. In so doing, it is reasonably lik ely to conclude that the State’s in terest in encour aging biological parents to rem ain together for the sake of their children is sufficient to uphold its traditional marriage laws. Because that ration ale for m arriage does n ot extend to sam e-sex couples, the State is not required to treat them the same as opposite-sex couples. See Johnson v. Robison, 415 U.S. 361, 383 (1974) (“When, as in this case, th e inclusion of one group prom otes a legitim ate governmental pu rpose, and the add ition of ot her group s would not, we cannot say th at the statute’s classification of beneficiaries and nonbeneficiaries is invidiously discriminatory.”).
The proper constitutional question, that is , has nothing to do with justifications for “excluding” access to m arriage and its benefits —an inqu iry that inh erently presupposes th e existence of a right to such “access” and thereb y amounts to a rejection of rational-basis review. Rather, “the relevant questi on is whether an opposite-sex de finition of m arriage furthers legitimate interests that would not be furthered, or furthered to the sam e degree, by allowing same-sex couples to m arry.” Jackson v. Abercrombie , 884 F. Supp. 2d 1065, 1107 (D. Haw. 2012). Otherwise, there would be no basis for “excluding” any other grouping of individuals from making equal claims for marriage.
While this Court dism issed the re sponsible procreation argum ent, Baskin, 2014 WL 4359059 at *19, many courts have found it convincing, including most recently in Robicheaux v. Caldwell, Nos. 13-5090, 14-97, 14-327, 2014 WL 4347099, at *6 (E.D. La. Sept. 3, 2014). See also Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 867-68 (8th Cir. 2006); Lofton v. Sec’y of Dep’t of Children & Fa mily Servs., 358 F.3d 804, 818-19 (11th Cir. 2004); Sevcik v. Sandoval, 911 F. Supp. 2d 996, 1015-16 (D. Nev. 2012); Jackson v. Abercrombie , 884 F. Supp. 2d 1065, 1112-13 (D. Haw. 2012); Smelt v. County of Orange, 374 F. Supp. 2d 861, 880 (C.D. Cal. 2005),

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aff’d in part, vacated in part, 477 F.3d 673 (9th Cir. 2006); Wilson v. Ake, 354 F. Supp. 2d 1298, 1309 (M.D. Fla. 2005); In re Kandu, 315 B.R. 123, 147-48 (Bankr. W.D. Wash. 2004); Adams v. Howerton, 486 F. Supp. 1119, 1124 (C.D. Cal. 1980), aff’d, 673 F.2d 1036 (9th Cir. 1982); In re Marriage of J.B. & H.B. , 326 S.W .3d 654, 677-78 (Tex. App. 2010); Conaway v. Deane , 932 A.2d 571, 619-21, 630-31 (Md. 2007); Hernandez v. Robles, 855 N.E.2d 1, 7 (N.Y. 2006); Andersen v. King County, 138 P.3d 963, 982-83 (Wash. 2006) (en banc); Standhardt v. Superior Court ex rel. County of Maricopa , 77 P.3d 451, 463- 65 (Ariz. Ct. App. 2003); Dean v. District of Columbia, 653 A.2d 307, 337 (D.C. 1995) (opinion of Ferren, J.); Singer v. Hara , 522 P.2d 1187, 1195 (Wash. Ct. App. 1974); Baker v. Nelson, 191 N.W.2d 185, 186 (Minn. 1971).
United States v. Windsor , 133 S. Ct. 2675 (2013), does nothing to underm ine the responsible procreation argument. There, the Court did not addr ess state rationales for m arriage but instead struck down Section 3 of DOMA, which had “the purpose and effect to disparage and to inju re th ose whom the State , by its m arriage laws, sought to protect in personhood and dignity.” Id. at 2696 (emphasis added). This was a violation of the Fifth Amendment principally because it was an “ unusual deviation from the traditi on of recognizing and accepting state definitions of m arriage . . . .” Id. at 2693 (emphasis added). It was critical to the Court’s analysis that New York had previously granted m arital inte rests th at f ederal D OMA then threatened. Id. at 2689. The Court stressed States’ re gulatory primacy over marriage as a matter of core sovereign interests, id. at 2689-92, and closed its opini on by stating, in no uncertain terms, that “[t]his opinion a nd its holding are confined to [N ew York’s] lawful marriages,” id. at 2696. It is therefore im proper to extrapolate from Windsor any rule that affects any State’s own definition of m arriage, much less a repudiation of the long-recognized rationale for m aintaining traditional marriage definitions.

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It is also d oubtful that the Suprem e Court will sep arately find a fundam ental right to

same-sex marriage. W hile it has s aid tha t “[ m]arriage is o ne of the basi c civil rights of m an,

fundamental to our very existence and survival,” Loving v. Virgin ia, 388 U.S. 1, 12 (1967)

(internal quotation marks omitted), neither it (nor this Court) has held that the constitutional right

to m arry encom passes sam e-sex marriages. “M arriage” is a foundationa l and ancient social

institution whose meaning, until recently, was universally understood as limited to the union of a

man and a wom an. Windsor, 133 S. Ct. at 2689. No separate fundam ental right to “sam e-sex

marriage” is “deeply rooted in this Nation’s history and tradition . . . and implicit in the concep t

of ordered liberty.” Washington v. Glucksberg , 521 U.S. 702, 720-21 (1997) (quotation m arks

omitted).

Accordingly, there is a reasonab le probability that the Suprem e Court will reve rse the

judgment of this Court.

II. The State and Indiana Citiz ens Will Suffer Irreparable Harm if a Stay Is Not Granted

1. The State seeks to preserve the status quo that w as set in place by this C ourt on

June 27 and July 1, 2014. Even if they ultim ately prevail, Plaintiffs will not be irreparab ly

harmed by a sligh tly lo nger delay until a final reso lution. For exam ple, even if Plain tiffs are

unable to file joint Indiana tax returns by Apri l 2015, a decision in their favor from the Supreme

Court in the near future would enable them to amend their returns for the 2014 tax year. See Ind.

Dep’t of Revenue, FAQs: When Do I Fi

le an Am ended (Corrected) Return?

http://www.in.gov/dor/4710.htm (last visited S ept. 10, 2014) (directing H oosier taxpayers to

submit an IT-40X to amend previously-filed tax returns).

Next, this Court has already im plicitly dete rmined that claim s for spousal and f amily

benefits are insufficiently weighty to justif y immediate relief pending final resolution. See Doc.

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No. 12 (staying relief that would otherwise ha ve allowed sam e-sex s pouses to access their

spouses’ public and private em ployer-provided insurance); Doc. No. 21 (refu sing to lift stay as

applied to the Lee plain tiffs, who sought access to Ind iana Public Retirem ent System benefits,

including future police and fire de partment death benefits). W hat is more, if the State wer e to

pay such benefits now, only to prevail later, it would be unclear whether it would be entitled to

recover the erroneously paid sum s from Plaintiffs. There is not hing emergent about a claim for

benefits that can justify the confusion and potential exposure imm ediate enforcem ent would

prompt.

Finally, Plaintiffs’ rem aining form s of relie f are too speculative or dependent on the

actions of a private en tity to ward off a stay. For example, for Plaintiffs other than Q uasney and

Sandler, issues relating to evid entiary privileges, inheritan ce laws, hospital visitation, and

wrongful death claims depend on factual predicates that do not exist in the record.

2. In contrast, the State’s concerns that the lack of a stay will result in widespread

chaos and confusion have already been born out. In the wake of the district court’s grant of final

judgment and perm anent injunctions against defenda nt state officials and county clerks on June

25, 2014, same-sex couples rushed to Indiana court houses to obtain marriage licenses, and some

county clerks, even those not dire ctly subject to the district c ourt’s permanent injunctions, began

issuing them. See, e.g. , Same-Sex Marriage in Indiana: Is Your County Allowing It? ,

TheIndyChannel, June 27, 2014, http://www.thei ndychannel.com/news/local-news/how-are-

indiana-clerks-handling-same-sex-marriage; Tim Evans, ACLU Opposes State’s Request for Stay

that Would Halt Same-Sex Marriages

, IndyStar, June 27, 2014,

http://www.indystar.com/story/news/2014/06/27/acluopposed-states-request-stay-halt-sex-

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marriages/11461775/ (noting that the Marion County Clerk’s Office had announced it would

hold special hours from 10:00 A.M. to 2:00 P.M. on Saturday, June 28, 2014).

Yet other clerks decided not to issue licenses. See Same-Sex Marriage, supra (Adams,

Clay, Daviess, Grant, and W arren Counties not issuing licenses); see also Dave Stafford, Some

Indiana Clerks Refuse to Issue Same-Sex Marriage Licenses , The Indiana Lawyer, June 26,

2014, http://www.theindianalaw

yer.com/some-indiana-clerks-refuse-to-issue-same-sex-

marriagelicenses/PARAMS/article/34473 (reporting that at least one clerk had reservations about

issuing lice nses until c onclusive g uidance was given). T hese refusals led to suggestions by

counsel for plain tiffs that non-defendant county clerks m ight be at ris k of litigation. See Two

Counties Refuse to I ssue Marriage License s to Same Sex Couples , WBI W, June 27, 2014,

http://www.wbiw.com/state/archive/2014/06/two-counties-refuse-to-issue-marriage-licenses-to-

same-sex-couples.php (Counsel stated, “Theoretically, we could bring new litigation.”).

By the tim e that this Court stayed the district court’s decision, Order, Baskin v. Bogan ,

Nos. 14-2386, 14-2387, 14-2388, Doc. No. 12 (7th Cir. June 27, 2014), hundreds of sa me-sex

marriages h ad taken p lace. In Marion County alone, m ore than 500 licen ses were issued to

same-sex couples. See Tim Evans, Federal Appeals Panel Stops Same-Sex Marriages , IndyStar,

June 28, 2014, http://www.indystar.com /story/news/2014/06/27/state-turns-appeals-court-stay-

halt-sex-marriages-indiana/11555205/. Some plaintiffs chose to m arry during the window. See,

e.g., Sam Klem et, Hoosier Same-Sex Couples Prepare for Chicago , WYFI Indianapolis, Aug.

25, 2014, http://www.wfyi.org/news/articles/hoos ier-same-sex-couples-prepare-for-chicago

(Gregory Hasty and Christoph er Vallero); LaMar Holliday, Federal Appeals Court Set to Hear

Gay Marriage Arguments, WANE, Aug. 25, 2014, http://wane. com/2014/08/25/federal-appeals-

court-set-to-hear-gay-marriage-arguments/ (Monica Wehrle and Harriet Mill er). But oth ers did

12

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not, “preferring to wait until they know it won’ t be appealed and th ey can celebrate th eir

marriage with family and friends.” Karen Caffarini, Both Sides in Same-Sex Marriage Ready for

Next Round , Post-Tribune, Aug. 24, 2014, http: //posttrib.suntimes.com/29402522-537/both-

sides-in-same-sex-marriage-ready-for-next-round.html#.U_yLg5NMu-o (Dawn Carver, Pam ela

Eanes, Bonnie Everly, and Linda Judkins).

The couples who married are now in legal limbo, lacking surety as to their status and any

related benefits and responsibilities. See, e.g., Tim Evans & Tony Cook, What Now for Those in

Same-Sex Marriage Limbo?

, IndyStar, July 1, 2014,

http://www.indystar.com/story/news/politics/2014/07/01/now-sex-marriage-limbo/11906429/;

Jacob Rund, Married Couples Live in Uncertainty , The Republic, July 20, 2014,

http://www.therepublic.com/view/local_story/Married-couples-live-in-uncert_1405899168.

Indiana does not recogn ize those marriages. B arb Berggoetz, Indiana Won’t Recognize Same-

Sex Marriages Performed Last Month

, IndyStar, July 9, 2014,

http://www.indystar.com/story/news/politics/2014/07/09/state-recognize-june-marriages-sex-

couples/12410207/. But that positi on has already led to at least one follow-on lawsuit seeking

legal recognition of m arriages that o ccurred after the district c ourt’s June 25 ruling but before

this Court’s June 27 stay. See Hoenigman v. Pence , No. 1:14-cv-01426-S EB-TAB (S.D. Ind.

filed Aug. 29, 2014).

The lack of certainty h as also created si gnificant confusion for the public, including

Indiana employers who are unsure whether they must modify their em ployment policies to

include sam e-sex couples. J.K. Wall, Employers Scramble to Deal with Same-Sex Marriage ,

Indianapolis Business Journal, June 26, 2014, h ttp://www.ibj.com/employers-scramble-to-deal-

with-same-sex-marriage/PARAMS/article/48332; see also Tony Cook & Tim Eva ns, Stay on

13

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Same-Sex Marriages Clouds Issue

, IndyStar, June 29, 2014,

http://www.indystar.com/story/news/2014/06/28/stay-sex-marriages-clouds-issue/11681857/.

Without a stay, in the absence of a fina l resolution, any rec ognition of sa me-sex

marriages would come under a cloud of doubt. Plaintiffs have discussed at length their desire for

societal acceptance. Yet, as even this Court’s opinion acknowledges, judgm ent and injunctions

in their favor cannot ensure those aims. See Baskin, 2014 WL 4359059 at *5. And allowing the

district cour t’s injunc tions to beco me ef fective now would leave a bitt er taste if they are

ultimately r eversed. Pa rticularly given the like ly pro spect of Suprem e Court r esolution on th e

near horizon, the best course w ould be to allow that full and final re solution to occur bef ore

building up the expectations and reliance of same-sex couples and the citizenry more generally.

CONCLUSION

For the foregoing reaso ns, the State respectfull y moves this Court to sta y the issuance of

its mandate pending the final disposition of its fully submitted petition for a writ of certiorari.

s/ Robert V. Clutter (with permission) Robert V. Clutter Kirtley, Taylor, Sims, Chadd & Minnette, P.C. 117 W. Main Street Lebanon, IN 46052 (765) 483-8549 bclutter@kirtleytaylorlaw.com
Counsel for the Boone County Clerk

Respectfully submitted,
GREGORY F. ZOELLER Attorney General of Indiana
s/ Thomas M. Fisher Thomas M. Fisher Solicitor General Office of the Attorney General IGC South, Fifth Floor 302 W. Washington Street Indianapolis, IN 46204 Tel: (317) 232-6255 Fax: (317) 232-7979 Tom.Fisher@atg.in.gov
Counsel for State Defendants

14

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FEDERAL RULE OF APPELLATE PROCEDURE 41(d)(2)(A) CERTIFICATION
The undersigned hereby certifies that a petition for writ of certiorari to the Supreme Court has been filed in this matter on Septem ber 9, 2014. This Motion for Stay of Mandate Pending Petition for Writ of Certiorari is not being filed merely for delay.
The Motion includes a statem ent of the specific issues raised in the petition for certiorari and shows that the petition f or c ertiorari ra ises im portant questions m eriting review by the Supreme Court.

By: s/ Thomas M. Fisher Thomas M. Fisher Solicitor General

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CERTIFICATE OF SERVICE I hereby certify that on Septem ber 10, 2014, I el ectronically filed th e foregoing with the Clerk of th e Court using the CM/ECF system, which s ent notif ication of such f iling to the following:

No. 14-2386
Paul D. Castillo Camilla B. Taylor Lambda Legal Defense & Education Fund, Inc. pcastillo@lambdalegal.org ctaylor@lambdalegal.org
Brent Phillip Ray Jordan Heinz Melanie MacKay Scott Lerner Dmitriy Tishyevich Kirkland & Ellis LLP brent.ray@kirkland.com jordan.heinz@kirkland.com melanie.mackay@kirkland.com scott.lerner@kirkland.com dmitriy.tishyevich@kirkland.com

Sean C. Lemieux Lemieux Law sean@lemieuxlawoffices.com
James Esseks Chase Strangio American Civil Liberties Union Foundation jesseks@aclu.org cstrangio@aclu.org
Thomas Alan Hardin Shine & Hardin LLP thardin@shineandhardin.com
No. 14-2388
Karen Celestino-Horseman Austin & Jones, PC karen@kchorseman.com

Barbara J. Baird Law Office of Barbara J. Baird bjbaird@bjbairdlaw.com

William R. Groth Fillenwarth Dennerline Groth & Towe LLP wgroth@fdgtlaborlaw.com

No. 14-2387
Kenneth J. Falk Gavin M. Rose ACLU Of Indiana kfalk@aclu-in.org grose@aclu-in.org

Mark W. Sniderman Sniderman Nguyen, LLP mark@snlawyers.com
Kathleen M. Sweeney Sweeney Hayes LLC ksween@gmail.com

Kelly R. Eskew kellyreskew@gmail.com

16

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I further certify that on Septem ber 10, 2014, I e- mailed courtesy copies of this filing to the following counsel of record in the District Court:

No. 14-2386
Darren J. Murphy Assistant Hamilton County Attorney dmurphy@ori.net
Nancy Moore Tiller Nancy Moore Tiller & Associates nmt@tillerlegal.com
John S. Dull Law Office of John S. Dull, PC jsdull@yahoo.com
Elizabeth A. Knight Porter County Administrative Center eknight@porterco.org

No. 14-2388
Robert A. Katz Indiana University McKinney School of Law robkatz87@gmail.com

Office of the Attorney General Indiana Government Center South 5th Floor 302 W. Washington St. Indianapolis, IN 46204-2770 Phone: (317) 232-6255 Fax: (317) 232-7979 Email: Tom.Fisher@atg.in.gov

s/ Thomas M. Fisher Thomas M. Fisher Solicitor General

17

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UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Everett McKinley Dirksen United States Courthouse Room 2722 ‐ 219 S. Dearborn Street Chicago, Illinois 60604

Office of the Clerk Phone: (312) 435‐5850 www.ca7.uscourts.gov

September 15, 2014

ORDER

Before
RICHARD A. POSNER, Circuit Judge ANN CLAIRE WILLIAMS, Circuit Judge DAVID F. HAMILTON, Circuit Judge

MARILYN RAE BASKIN, et al.,

] Appeals from the United

Plaintiffs-Appellees, ] States District Court

] for the Southern District

Nos. 14-2386, 14-2387,

v. ] of Indiana, Indianapolis

and 14-2388

] Division.

]

PENNY BOGAN, et al.,

] Nos. 1:14-cv-00355-RLY-TAB,

Defendants-Appellants. ]

1:14-cv-00404-RLY-TAB,

]

1:14-cv-00406-RLY-MJD

]

] Richard L. Young,

] Chief Judge.

The following are before the court:

1. MOTION FOR STAY OF MANDATE PENDING FINAL DISPOSITION OF PETITION FOR WRIT OF CERTIORARI, filed on September 10, 2014, by counsel for the appellants.

2. RESPONSE OF FUJII AND LEE APPELLEES IN OPPOSITION TO REQUEST FOR STAY OF MANDATE PENDING DISPOSITION OF UNITED STATES SUPREME COURT PROCEEDINGS, filed on September 11, 2014, by counsel for appellees Midori Fujii, et al.

‐ over ‐

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Case: 14-2386 Document: 00712327361

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Nos. 14‐2386, et al.,

Page 2

IT IS ORDERED that the motion is GRANTED. The mandate in appeals 14‐2386, 14‐2387, and 14‐2388 is STAYED pending final disposition of petition for writ of certiorari. The stay will terminate automatically if the certiorari petition is denied or will terminate upon the judgment of the Supreme Court if the certiorari petition is granted.

form name: c7_Order_3J(form ID: 177)

Case 1:14-cv-00404-RLY-TAB Document 72 Filed 10/07/14 Page 64 of 64 PageID #: 753

Case: 14-2386 Document: 00712327362

Filed: 10/07/2014 Pages: 1

Supreme Court of the United States

Office of the Clerk

Washington, DC 20543-0001

October 6, 2014

Scott S. Harris Clerk of the Court (202) 479-3011

Clerk United States Court of Appeals for the Seventh Circuit 219 S. Dearborn Street, Room 2722 Chicago, IL 60604

Re: Penny Bogan, in Her Official Capacity as Boone County Clerk, et al. v. Marilyn Rae Baskin, et al. No. 14-277 (Your No. 14-2386 to 14-2388)

Dear Clerk: The Court today entered the following order in the above-entitled case: The petition for a writ of certiorari is denied.

Sincerely,

Scott S. Harris, Clerk

 
 Case: 1:14-cv-404 As of: 10/08/2014 12:00 AM EDT 1 of 12
MANDATE,CLOSED
U.S. District Court Southern District of Indiana (Indianapolis) CIVIL DOCKET FOR CASE #: 1:14−cv−00404−RLY−TAB

FUJII et al v. GOVERNOR, STATE OF INDIANA et al Assigned to: Judge Richard L. Young Referred to: Magistrate Judge Tim A. Baker Related Cases: 4:14−cv−00015−RLY−TAB
1:14−cv−00406−RLY−MJD
1:14−cv−00355−RLY−TAB
1:14−cv−00405−RLY−TAB
Case in other court: 7th Circuit, 14−02387 − Mandate Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 03/14/2014 Date Terminated: 06/25/2014 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

MIDORI FUJII

represented by Chase Strangio American Civil Liberties Union Foundation 125 Broad Street 18th Floor New York, NY 1004 212−549−2627 Fax: 212−549−2651 Email: cstrangio@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

James Esseks AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 212−549−2627 Fax: 212−549−2651 Email: jesseks@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Sean C. Lemieux LEMIEUX LAW 23 E. 39th Street Indianapolis, IN 46205 317−985−5809 Fax: 866−686−2901 Email: sean@lemieuxlawoffices.com ATTORNEY TO BE NOTICED

Plaintiff MELODY LAYNE

represented by Chase Strangio (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

James Esseks (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Sean C. Lemieux (See above for address)

Case: 1:14-cv-404 As of: 10/08/2014 12:00 AM EDT 2 of 12

ATTORNEY TO BE NOTICED

Plaintiff TARA BETTERMAN

represented by Chase Strangio (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

James Esseks (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Sean C. Lemieux (See above for address) ATTORNEY TO BE NOTICED

Plaintiff SCOTT MOUBRAY−CARRICO

represented by Chase Strangio (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

James Esseks (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Sean C. Lemieux (See above for address) ATTORNEY TO BE NOTICED

Plaintiff MONICA WEHRLE

represented by Chase Strangio (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Gavin Minor Rose ACLU OF INDIANA 1031 E. Washington Street Indianapolis, IN 46202 317−635−4059 ext.106 Fax: 317−635−4105 Email: grose@aclu−in.org ATTORNEY TO BE NOTICED

James Esseks (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kelly R. Eskew ACLU OF INDIANA 1031 E. Washington St. Indianapolis, IN 46202 (317) 635−4059 Fax: (317) 635−4105 Email: keskew@aclu−in.org ATTORNEY TO BE NOTICED

Kenneth J. Falk ACLU OF INDIANA

Case: 1:14-cv-404 As of: 10/08/2014 12:00 AM EDT 3 of 12

1031 East Washington Street Indianapolis, IN 46202−3952 (317) 635−4059 x104 Fax: (317) 635−4105 Email: kfalk@aclu−in.org ATTORNEY TO BE NOTICED

Plaintiff HARRIET MILLER

represented by Chase Strangio (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Gavin Minor Rose (See above for address) ATTORNEY TO BE NOTICED

James Esseks (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kelly R. Eskew (See above for address) ATTORNEY TO BE NOTICED

Kenneth J. Falk (See above for address) ATTORNEY TO BE NOTICED

Plaintiff GREGORY HASTY

represented by Chase Strangio (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Gavin Minor Rose (See above for address) ATTORNEY TO BE NOTICED

James Esseks (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kelly R. Eskew (See above for address) ATTORNEY TO BE NOTICED

Kenneth J. Falk (See above for address) ATTORNEY TO BE NOTICED

Plaintiff CHRISTOPHER VALLERO

represented by Chase Strangio (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Gavin Minor Rose (See above for address) ATTORNEY TO BE NOTICED

Case: 1:14-cv-404 As of: 10/08/2014 12:00 AM EDT 4 of 12

James Esseks (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kelly R. Eskew (See above for address) ATTORNEY TO BE NOTICED

Kenneth J. Falk (See above for address) ATTORNEY TO BE NOTICED

Plaintiff ROB MACPHERSON

represented by Chase Strangio (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Gavin Minor Rose (See above for address) ATTORNEY TO BE NOTICED

James Esseks (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kelly R. Eskew (See above for address) ATTORNEY TO BE NOTICED

Kenneth J. Falk (See above for address) ATTORNEY TO BE NOTICED

Plaintiff STEVEN STOLEN

represented by Chase Strangio (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Gavin Minor Rose (See above for address) ATTORNEY TO BE NOTICED

James Esseks (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kelly R. Eskew (See above for address) ATTORNEY TO BE NOTICED

Kenneth J. Falk (See above for address) ATTORNEY TO BE NOTICED

Plaintiff RODNEY MOUBRAY−CARRICO

represented by Chase Strangio (See above for address) PRO HAC VICE

Case: 1:14-cv-404 As of: 10/08/2014 12:00 AM EDT 5 of 12

ATTORNEY TO BE NOTICED

James Esseks (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Sean C. Lemieux (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
L. M.−C. by his next friends and parents, Scott and Rodney Moubray−Carrico

represented by Chase Strangio (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

James Esseks (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Sean C. Lemieux (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
A. M.−S. by her next friends and parents, Rob MacPherson and Steven Stolen

represented by Chase Strangio (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Gavin Minor Rose (See above for address) ATTORNEY TO BE NOTICED

James Esseks (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kelly R. Eskew (See above for address) ATTORNEY TO BE NOTICED

Kenneth J. Falk (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
GOVERNOR, STATE OF INDIANA in his official capacity

represented by Thomas M. Fisher OFFICE OF THE ATTORNEY GENERAL 302 West Washington Street IGCS − 5th Floor Indianapolis, IN 46204 (317) 232−6255 Fax: (317) 232−7979 Email: tom.fisher@atg.in.gov ATTORNEY TO BE NOTICED

Case: 1:14-cv-404 As of: 10/08/2014 12:00 AM EDT 6 of 12

Defendant COMMISSIONER, INDIANA STATE DEPARTMENT OF HEALTH in his official capacity Defendant CLERK, ALLEN COUNTY, INDIANA in her official capacity
Defendant CLERK, HAMILTON COUNTY, INDIANA in her official capacity
Defendant COMMISSIONER, INDIANA STATE DEPARTMENT OF REVENUE

represented by Thomas M. Fisher (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas Alan Hardin SHINE &HARDIN LLP 2810 Beaver Ave. Fort Wayne, IN 46807 (219) 745−1970 Fax: (219) 744−5411 Email: thardin@shineandhardin.com ATTORNEY TO BE NOTICED
represented by Darren J. Murphy HOWARD &ASSOCIATES 694 Logan Street Noblesville, IN 46060 (317) 773−4212 Fax: (317) 776−2369 Email: dmurphy@ori.net ATTORNEY TO BE NOTICED
represented by Thomas M. Fisher (See above for address) ATTORNEY TO BE NOTICED

Date Filed 03/14/2014
03/14/2014
03/14/2014
03/14/2014
03/17/2014 03/17/2014 03/18/2014

# Docket Text
1 COMPLAINT against All Defendants, filed by All Plaintiffs. (Filing fee $400, receipt number 0756−2989368) (Attachments: # 1 Attachment−Marriage License Application, # 2 Civil Cover Sheet, # 3 Proposed Summons)(Falk, Kenneth) Modified on 3/17/2014 for party text(DJH). (Entered: 03/14/2014)
2 NOTICE of Appearance by Gavin Minor Rose on behalf of Plaintiffs GREGORY HASTY, A. M.−S., ROB MACPHERSON, HARRIET MILLER, STEVEN STOLEN, CHRISTOPHER VALLERO, MONICA WEHRLE. (Rose, Gavin) (Entered: 03/14/2014)
3 NOTICE of Appearance by Kenneth J. Falk on behalf of Plaintiffs GREGORY HASTY, A. M.−S., ROB MACPHERSON, HARRIET MILLER, STEVEN STOLEN, CHRISTOPHER VALLERO, MONICA WEHRLE. (Falk, Kenneth) (Entered: 03/14/2014)
4 NOTICE of Appearance by Sean C. Lemieux on behalf of Plaintiffs TARA BETTERMAN, MIDORI FUJII, MELODY LAYNE, L. M.−C., RODNEY MOUBRAY−CARRICO, SCOTT MOUBRAY−CARRICO. (Lemieux, Sean) (Entered: 03/14/2014)
5 Summonses Issued as to All Defendants. (DJH) (Entered: 03/17/2014)
6 MAGISTRATE JUDGE's NOTICE of Availability to Exercise Jurisdiction issued. (DJH) (Entered: 03/17/2014)
7 ORDER REASSIGNING CASE. Clerk is directed to reassign case to Judge Richard L. Young and Magistrate Judge Tim A. Baker for all further proceedings. This case is related to 4:14−CV−15−RLY−TAB. Judge Tanya Walton Pratt and Magistrate Judge Denise K. LaRue no longer assigned to case. Signed by Judge Richard L. Young on 3/18/2014. (TMD) (Entered: 03/18/2014)

Case: 1:14-cv-404 As of: 10/08/2014 12:00 AM EDT 7 of 12

03/19/2014
03/19/2014
03/24/2014
03/26/2014 03/27/2014 03/28/2014 03/28/2014 03/28/2014 03/28/2014 03/28/2014 03/28/2014
03/28/2014
04/01/2014 04/02/2014

8 NOTICE of Reassignment of Case to Judge Richard L. Young and Magistrate Judge Tim A. Baker. Judge Tanya Walton Pratt, Magistrate Judge Denise K. LaRue no longer assigned to the case. Please include the new case number, 1:14−cv−0404−RLY−TAB, on all future filings in this matter. (AAM) (Entered: 03/19/2014)
9 NOTICE of Reassignment of Case to Judge Richard L. Young and Magistrate Judge Tim A. Baker. Judge Richard L. Young, Magistrate Judge Tim A. Baker no longer assigned to the case. Please include the new case number, 1:14−cv−0404−RLY−TAB, on all future filings in this matter. (AAM) (Entered: 03/19/2014)
10 MOTION for Attorneys' Conference, filed by Plaintiffs TARA BETTERMAN, MIDORI FUJII, GREGORY HASTY, MELODY LAYNE, L. M.−C., A. M.−S., ROB MACPHERSON, HARRIET MILLER, RODNEY MOUBRAY−CARRICO, SCOTT MOUBRAY−CARRICO, STEVEN STOLEN, CHRISTOPHER VALLERO, MONICA WEHRLE. (Attachments: # 1 Text of Proposed Order)(Falk, Kenneth) (Entered: 03/24/2014)
11 NOTICE of Appearance by Thomas M. Fisher on behalf of Defendant GOVERNOR, STATE OF INDIANA. (Fisher, Thomas) (Entered: 03/26/2014)
12 SCHEDULING ORDER: A Telephonic Conference is set for 4/4/2014 at 2:00 PM (EST) before Judge Richard L. Young.The information needed to participate in this telephonic conference will be provided by a separate notification. Signed by Judge Richard L. Young on 3/27/2014.(TMD) (Entered: 03/27/2014)
14 NOTICE of Appearance by Thomas M. Fisher on behalf of Defendant COMMISSIONER, INDIANA STATE DEPARTMENT OF HEALTH. (Fisher, Thomas) (Entered: 03/28/2014)
15 RETURN of Service by CMRRR, filed by All Plaintiffs. GOVERNOR, STATE OF INDIANA served on 3/21/2014. (Falk, Kenneth) (Entered: 03/28/2014)
16 RETURN of Service by CMRRR, filed by All Plaintiffs. COMMISSIONER, INDIANA STATE DEPARTMENT OF HEALTH served on 3/19/2014. (Falk, Kenneth) (Entered: 03/28/2014)
17 RETURN of Service by CMRRR, filed by All Plaintiffs. CLERK, HAMILTON COUNTY, INDIANA served on 3/21/2014. (Falk, Kenneth) (Entered: 03/28/2014)
18 RETURN of Service by CMRRR, filed by All Plaintiffs. CLERK, ALLEN COUNTY, INDIANA served on 3/19/2014. (Falk, Kenneth) (Entered: 03/28/2014)
19 MOTION for Attorney(s) James Esseks to Appear pro hac vice (Filing fee $30.00, receipt number IP040125), filed by Plaintiffs TARA BETTERMAN, MIDORI FUJII, GREGORY HASTY, MELODY LAYNE, L. M.−C., A. M.−S., ROB MACPHERSON, HARRIET MILLER, RODNEY MOUBRAY−CARRICO, SCOTT MOUBRAY−CARRICO, STEVEN STOLEN, CHRISTOPHER VALLERO, MONICA WEHRLE. (Attachments: # 1 Text of Proposed Order, # 2 Envelope)(NMT) (Entered: 03/31/2014)
20 MOTION for Attorney(s) Chase Strangio to Appear pro hac vice (Filing fee $30.00, receipt number IP040126), filed by Plaintiffs TARA BETTERMAN, MIDORI FUJII, GREGORY HASTY, MELODY LAYNE, L. M.−C., A. M.−S., ROB MACPHERSON, HARRIET MILLER, RODNEY MOUBRAY−CARRICO, SCOTT MOUBRAY−CARRICO, STEVEN STOLEN, CHRISTOPHER VALLERO, MONICA WEHRLE. (Attachments: # 1 Text of Proposed Order, # 2 Envelope)(NMT) (Entered: 03/31/2014)
21 REPORT by Counsel by All Plaintiffs. (Falk, Kenneth) (Entered: 04/01/2014)
26 ORDER granting 19 Motion to Appear pro hac vice. Attorney James Esseks for ALL PLAINTIFFS added. Copy to James Esseks and Chase Strangio via US Mail. Signed by Magistrate Judge Tim A. Baker on 4/2/2014. (SWM) (Entered: 04/03/2014)

Case: 1:14-cv-404 As of: 10/08/2014 12:00 AM EDT 8 of 12

04/03/2014 04/03/2014 04/03/2014
04/03/2014 04/04/2014 04/04/2014 04/07/2014
04/08/2014 04/09/2014 04/11/2014
04/11/2014
04/11/2014

22 AMENDED COMPLAINT for Declaratory and Injunctive Relief against All Defendants, filed by All Plaintiffs. (Attachments: # 1 Exhibit 1 (Application for Marriage License), # 2 Exhibit 2 (Dep't of Revenue Tax Filing Guidance), # 3 Proposed Summons)(Rose, Gavin) (Entered: 04/03/2014)
23 MOTION for Preliminary Injunction , filed by Plaintiffs TARA BETTERMAN, MIDORI FUJII, GREGORY HASTY, MELODY LAYNE, L. M.−C., A. M.−S., ROB MACPHERSON, HARRIET MILLER, RODNEY MOUBRAY−CARRICO, SCOTT MOUBRAY−CARRICO, STEVEN STOLEN, CHRISTOPHER VALLERO, MONICA WEHRLE. (Rose, Gavin) (Entered: 04/03/2014)
24 MOTION to Consolidate Preliminary Injunction Proceedings with Final Trial on the Merits, filed by Plaintiffs TARA BETTERMAN, MIDORI FUJII, GREGORY HASTY, MELODY LAYNE, L. M.−C., A. M.−S., ROB MACPHERSON, HARRIET MILLER, RODNEY MOUBRAY−CARRICO, SCOTT MOUBRAY−CARRICO, STEVEN STOLEN, CHRISTOPHER VALLERO, MONICA WEHRLE. (Rose, Gavin) (Entered: 04/03/2014)
25 NOTICE of Appearance by Thomas Alan Hardin on behalf of Defendant CLERK, ALLEN COUNTY, INDIANA. (Hardin, Thomas) (Entered: 04/03/2014)
27 Summons Issued as to COMMISSIONER, INDIANA STATE DEPARTMENT OF REVENUE. (NMT) (Entered: 04/04/2014)
28 MINUTE ORDER for Scheduling Conference held 4/04/2014 before Judge Richard L. Young. Dispositive Motions due by 4/21/2014. Signed by Judge Richard L. Young. (Court Reporter Judy Mason.)(TMD) (Entered: 04/04/2014)
29 Amended MOTION for Attorney Chase Strangio to Appear pro hac vice (Filing fee $30.00, receipt number IP040126), filed by Plaintiffs TARA BETTERMAN, MIDORI FUJII, GREGORY HASTY, MELODY LAYNE, L. M.−C., A. M.−S., ROB MACPHERSON, HARRIET MILLER, RODNEY MOUBRAY−CARRICO, SCOTT MOUBRAY−CARRICO, STEVEN STOLEN, CHRISTOPHER VALLERO, MONICA WEHRLE. (Attachments: # 1 Text of Proposed Order, # 2 Envelope)(NMT) (Entered: 04/07/2014)
30 ORDER granting 20 Motion to Appear pro hac vice. Attorney Chase Strangio for Plaintiffs added. Signed by Magistrate Judge Tim A. Baker on 4/8/2014. (copies via US Mail to Chase Strangio and James Esseks) (JKS) (Entered: 04/08/2014)
31 NOTICE of Appearance by Thomas M. Fisher on behalf of Defendant COMMISSIONER, INDIANA STATE DEPARTMENT OF REVENUE. (Fisher, Thomas) (Entered: 04/09/2014)
32 ORDER SETTING INITIAL PRETRIAL CONFERENCE: This case is assigned for an initial pretrial conference before United States Magistrate Judge Tim A. Baker on May 27, 2014, at 3 p.m. in Room 234, Birch Bayh Federal Building and United States Courthouse, 46 East Ohio Street, Indianapolis, Indiana. All persons entering the United States Courthouse must have photo identification ***SEE ORDER FOR ADDITIONAL INFORMATION***. Signed by Magistrate Judge Tim A. Baker on 4/11/2014.(DW) (Entered: 04/11/2014)
33 MOTION for Summary Judgment , filed by Plaintiffs TARA BETTERMAN, MIDORI FUJII, GREGORY HASTY, MELODY LAYNE, L. M.−C., A. M.−S., ROB MACPHERSON, HARRIET MILLER, RODNEY MOUBRAY−CARRICO, SCOTT MOUBRAY−CARRICO, STEVEN STOLEN, CHRISTOPHER VALLERO, MONICA WEHRLE. (Attachments: # 1 Exhibit 1 (Aff. of Fujii), # 2 Exhibit 2 (Aff. of Layne &Betterman), # 3 Exhibit 3 (Aff. of Moubray−Carricos), # 4 Exhibit 4 (Aff. of MacPherson &Stolen), # 5 Exhibit 5 (Aff. of A.M.−S.), # 6 Exhibit 6 (Aff. of Wehrle &Miller), # 7 Exhibit 7 (Aff. of Hasty &Vallero))(Rose, Gavin) (Entered: 04/11/2014)
34 BRIEF/MEMORANDUM in Support re 33 MOTION for Summary Judgment , filed by Plaintiffs TARA BETTERMAN, MIDORI FUJII, GREGORY HASTY, MELODY LAYNE, L. M.−C., A. M.−S., ROB MACPHERSON, HARRIET MILLER, RODNEY MOUBRAY−CARRICO, SCOTT MOUBRAY−CARRICO, STEVEN STOLEN, CHRISTOPHER VALLERO, MONICA WEHRLE. (Rose, Gavin) (Entered: 04/11/2014)

Case: 1:14-cv-404 As of: 10/08/2014 12:00 AM EDT 9 of 12

04/11/2014 04/17/2014 04/18/2014 04/21/2014 04/25/2014
04/25/2014 05/02/2014
05/02/2014 05/07/2014 05/07/2014
05/08/2014
05/20/2014

35 ORDER VACATING INITIAL PRETRIAL CONFERENCE: The Court, on its own motion, hereby VACATES the initial pretrial conference set for May 27, 2014. Copy to James Esseks via US Mail. Signed by Magistrate Judge Tim A. Baker on 4/11/2014.(SWM) (Entered: 04/11/2014)
36 NOTICE of Appearance by Darren J. Murphy on behalf of Defendant CLERK, HAMILTON COUNTY, INDIANA. (Murphy, Darren) (Entered: 04/17/2014)
37 SCHEDULING ORDER: TELEPHONIC Status Conference is set for 4/21/2014 at 12:45 PM before Judge Richard L. Young. Signed by Judge Richard L. Young on 4/18/2014.(TMD) (Entered: 04/18/2014)
41 Minute Entry for telephonic conference held 4/21/2014 before Judge Richard L. Young. (Court Reporter Judy Mason.) (TMD) (Entered: 04/28/2014)
39 STIPULATION Concerning Case Status and Briefing Schedule, filed by Plaintiffs TARA BETTERMAN, MIDORI FUJII, GREGORY HASTY, MELODY LAYNE, L. M.−C., A. M.−S., ROB MACPHERSON, HARRIET MILLER, RODNEY MOUBRAY−CARRICO, SCOTT MOUBRAY−CARRICO, STEVEN STOLEN, CHRISTOPHER VALLERO, MONICA WEHRLE. (Attachments: # 1 Text of Proposed Order)(Falk, Kenneth) (Entered: 04/25/2014)
40 NOTICE of Parties' First Extension of Time, filed by Defendants COMMISSIONER, INDIANA STATE DEPARTMENT OF HEALTH, COMMISSIONER, INDIANA STATE DEPARTMENT OF REVENUE, GOVERNOR, STATE OF INDIANA. (Fisher, Thomas) (Entered: 04/25/2014)
42 ORDER approving 39 Stipulation filed by RODNEY MOUBRAY−CARRICO, L. M.−C., CHRISTOPHER VALLERO, HARRIET MILLER, MELODY LAYNE, TARA BETTERMAN, GREGORY HASTY, MONICA WEHRLE, STEVEN STOLEN, SCOTT MOUBRAY−CARRICO, MIDORI FUJII, A. M.−S., ROB MACPHERSON. Signed by Judge Richard L. Young on 5/2/2014.(TMD) (Entered: 05/02/2014)
43 RETURN of Service by CMRRR, filed by All Plaintiffs. COMMISSIONER, INDIANA STATE DEPARTMENT OF REVENUE served on 4/7/2014. (Falk, Kenneth) (Entered: 05/02/2014)
44 MOTION for Summary Judgment , filed by Defendants COMMISSIONER, INDIANA STATE DEPARTMENT OF HEALTH, COMMISSIONER, INDIANA STATE DEPARTMENT OF REVENUE, GOVERNOR, STATE OF INDIANA. (Fisher, Thomas) (Entered: 05/07/2014)
45 BRIEF/MEMORANDUM in Support re 44 MOTION for Summary Judgment AND IN OPPOSITION TO PLAINTIFFS MOTION FOR SUMMARY JUDGMENT, filed by Defendants COMMISSIONER, INDIANA STATE DEPARTMENT OF HEALTH, COMMISSIONER, INDIANA STATE DEPARTMENT OF REVENUE, GOVERNOR, STATE OF INDIANA. (Fisher, Thomas) (Entered: 05/07/2014)
46 RESPONSE in Opposition re 44 MOTION for Summary Judgment , 33 MOTION for Summary Judgment (Reply in Supp. of Pltfs.' SJ Mot. &Response in Opp. to Dfts.' SJ Mot.), filed by Plaintiffs TARA BETTERMAN, MIDORI FUJII, GREGORY HASTY, MELODY LAYNE, L. M.−C., A. M.−S., ROB MACPHERSON, HARRIET MILLER, RODNEY MOUBRAY−CARRICO, SCOTT MOUBRAY−CARRICO, STEVEN STOLEN, CHRISTOPHER VALLERO, MONICA WEHRLE. (Attachments: # 1 Exhibit 1 (Decl. of Shawn Antell), # 2 Exhibit 2 (614 Reasons Why Marriage Equality Matters in Indiana))(Rose, Gavin) (Entered: 05/08/2014)
47 Unopposed MOTION for Extension of Time to 06/03/2014 IN WHICH TO RESPOND TO PLAINTIFFS AMENDED COMPLAINT, filed by Defendants COMMISSIONER, INDIANA STATE DEPARTMENT OF HEALTH, COMMISSIONER, INDIANA STATE DEPARTMENT OF REVENUE, GOVERNOR, STATE OF INDIANA. (Attachments: # 1 Text of Proposed Order Proposed Order)(Fisher, Thomas) (Entered: 05/20/2014)

Case: 1:14-cv-404 As of: 10/08/2014 12:00 AM EDT 10 of 12

05/23/2014 06/03/2014 06/25/2014
06/25/2014 06/25/2014 06/25/2014
06/25/2014
06/25/2014
06/26/2014 06/26/2014 06/26/2014 06/26/2014

48 ORDER granting 47 Defendant's Motion for Extension of Time to File to 06/03/2014 to file their response to Plaintiffs' Amended Complaint for Declaratory and Injunctive Relief. Signed by Magistrate Judge Tim A. Baker on 5/23/2014. (MRI) (Entered: 05/23/2014)
49 ANSWER to 22 Amended Complaint , filed by COMMISSIONER, INDIANA STATE DEPARTMENT OF HEALTH, COMMISSIONER, INDIANA STATE DEPARTMENT OF REVENUE, GOVERNOR, STATE OF INDIANA.(Fisher, Thomas) (Entered: 06/03/2014)
50 **STAYED PENDING APPEAL PER 62 USCA ORDER** ORDER granting in part and denying in part Plaintiffs' 33 Motion for Summary Judgment and granting in part and denying in part Defendants' 44 Motion for Summary Judgment. Order also denies as moot Plaintiffs' 23 Motion for Preliminary Injunction and denies as moot Plaintiffs' 24 Motion to Consolidate Preliminary Injunction Proceedings with Final Trial on the Merits. (SEE ENTRY FOR DETAILS). Signed by Judge Richard L. Young on 6/25/2014. (TMD) Modified on 6/30/2014 (LBT). (Entered: 06/25/2014)
51 CLOSED JUDGMENT in favor of Plaintiffs and Governor Pence and against Defendants Commissioner of the Indiana State Department of Health; Clerk of Allen County, Indiana; Clerk of Hamilton County, Indiana; and the Commissioner of the Indiana State Department of Revenue. Signed by Judge Richard L. Young on 6/25/2014.(TMD) (Entered: 06/25/2014)
52 NOTICE of Appearance by Kelly R. Eskew on behalf of Plaintiffs GREGORY HASTY, A. M.−S., ROB MACPHERSON, HARRIET MILLER, STEVEN STOLEN, CHRISTOPHER VALLERO, MONICA WEHRLE. (Eskew, Kelly) (Entered: 06/25/2014)
53 NOTICE OF APPEAL as to 50 Order on Motion for Preliminary Injunction and Order on Motion for Summary Judgment and 51 Final Judgment, filed by Defendants COMMISSIONER, INDIANA STATE DEPARTMENT OF REVENUE, CLERK, ALLEN COUNTY, INDIANA, and CLERK, HAMILTON COUNTY, INDIANA. (No fee paid with this filing) (Fisher, Thomas) Modified on 6/26/2014 to link to judgment and to correctly identify parties included in NOA (LBT). (Entered: 06/25/2014)
54 DOCKETING STATEMENT by COMMISSIONER, INDIANA STATE DEPARTMENT OF HEALTH, COMMISSIONER, INDIANA STATE DEPARTMENT OF REVENUE, CLERK, ALLEN COUNTY, INDIANA, and CLERK, HAMILTON COUNTY, INDIANA re 53 Notice of Appeal (Fisher, Thomas) Modified on 6/26/2014 to correctly identify parties filing document (LBT). (Entered: 06/25/2014)
55 Emergency MOTION to Stay Pending Appeal, filed by Defendants COMMISSIONER, INDIANA STATE DEPARTMENT OF HEALTH, COMMISSIONER, INDIANA STATE DEPARTMENT OF REVENUE, CLERK, HAMILTON COUNTY, INDIANA, and CLERK, ALLEN COUNTY, INDIANA. (Fisher, Thomas) Modified on 6/26/2014 to correctly identify parties filing document (LBT). (Entered: 06/25/2014)
56 SEVENTH CIRCUIT APPEAL INFORMATION SHEET re 53 Notice of Appeal − Instructions for Attorneys − Parties' Short Record, Instructions, and Designation of Record information attached. (LBT) (Entered: 06/26/2014)
57 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 53 Notice of Appeal. − for Court of Appeals Use Only. (LBT) (Entered: 06/26/2014)
58 USCA Case Number 14−2387 for 53 Notice of Appeal filed by CLERK, ALLEN COUNTY, INDIANA, COMMISSIONER, INDIANA STATE DEPARTMENT OF REVENUE, CLERK, HAMILTON COUNTY, INDIANA. (Attachments: # 1 Circuit Rule 3(b) Notice)(LBT) (Entered: 06/26/2014)
59 USCA Appeal Fees received $505.00 receipt number IP041374 re 53 Notice of Appeal filed by CLERK, ALLEN COUNTY, INDIANA, COMMISSIONER, INDIANA STATE DEPARTMENT OF REVENUE, CLERK, HAMILTON COUNTY, INDIANA (USCA #14−2387) (DJH) (Entered: 06/26/2014)

Case: 1:14-cv-404 As of: 10/08/2014 12:00 AM EDT 11 of 12

06/27/2014
06/27/2014
06/27/2014 07/02/2014 07/03/2014 07/08/2014 07/23/2014 07/24/2014 07/25/2014

60 RESPONSE in Opposition re 55 Emergency MOTION to Stay Pending Appeal , filed by Plaintiffs TARA BETTERMAN, MIDORI FUJII, GREGORY HASTY, MELODY LAYNE, L. M.−C., A. M.−S., ROB MACPHERSON, HARRIET MILLER, RODNEY MOUBRAY−CARRICO, SCOTT MOUBRAY−CARRICO, STEVEN STOLEN, CHRISTOPHER VALLERO, MONICA WEHRLE. (Attachments: # 1 Exhibit Slip opinion DeBoer v. Snyder, # 2 Exhibit Supreme Court Order − Natl Org. for Marriage v. Geiger, # 3 Exhibit Emergency Motion−Geiger v. Kitzhaber)(Falk, Kenneth) (Entered: 06/27/2014)
61 NOTICE of Correction and Filing of Corrected Memorandum in Opposition to Emergency Motion for Stay Pending Appeal, filed by Plaintiffs TARA BETTERMAN, MIDORI FUJII, GREGORY HASTY, MELODY LAYNE, L. M.−C., A. M.−S., ROB MACPHERSON, HARRIET MILLER, RODNEY MOUBRAY−CARRICO, SCOTT MOUBRAY−CARRICO, STEVEN STOLEN, CHRISTOPHER VALLERO, MONICA WEHRLE (Attachments: # 1 Corrected Memorandum, # 2 Exhibit to Memorandum− Slip opinion DeBoer v. Snyder, # 3 Exhibit to Memorandum− U.S. Sup. Court Order − Nat'l Org for Marriage v. Geiger, # 4 Exhibit to Memorandum − Emergency Motion Geiger v. Kitzhaber) (Falk, Kenneth) (Entered: 06/27/2014)
62 ORDER of USCA as to 53 Notice of Appeal filed by CLERK, ALLEN COUNTY, INDIANA, COMMISSIONER, INDIANA STATE DEPARTMENT OF REVENUE, CLERK, HAMILTON COUNTY, INDIANA (USCA #14−2387) − Upon consideration of the Emergency Motion for Stay Pending Appeal, filed on 6/27/2014, by counsel for the appellants, it is ORDERED that the motion is GRANTED. The district court's order dated 6/25/2014 is STAYED pending resolution of this appeal. (LBT) (Entered: 06/30/2014)
63 Unopposed MOTION for Extension of Time to File for Attorneys' Fees and Costs, filed by Plaintiffs TARA BETTERMAN, MIDORI FUJII, GREGORY HASTY, MELODY LAYNE, L. M.−C., A. M.−S., ROB MACPHERSON, HARRIET MILLER, RODNEY MOUBRAY−CARRICO, SCOTT MOUBRAY−CARRICO, STEVEN STOLEN, CHRISTOPHER VALLERO, MONICA WEHRLE. (Attachments: # 1 Text of Proposed Order)(Falk, Kenneth) (Entered: 07/02/2014)
64 ORDER: IT IS THEREFORE ORDERED that plaintiffs are granted an extension of time to file for their reasonable attorneys' fees and costs until 95 days after the Seventh Circuit issues its mandate in this case or the case is otherwise resolved in the Seventh Circuit, or 35 days after any proceedings in this case in the United States Supreme Court are resolved, whichever is later. Signed by Magistrate Judge Tim A. Baker on 7/3/2014. (DW) (Entered: 07/03/2014)
65 DESIGNATION of Record on Appeal by COMMISSIONER, INDIANA STATE DEPARTMENT OF HEALTH, COMMISSIONER, INDIANA STATE DEPARTMENT OF REVENUE, GOVERNOR, STATE OF INDIANA re 53 Notice of Appeal (Fisher, Thomas) (Entered: 07/08/2014)
66 Appeal Remark re 53 Notice of Appeal (USCA #14−2387): Long Record and Supplemental Long Record transmitted to USCA under Cause No. 1:14−cv−355−RLY−TAB. See that docket for transmittal information. (Attachments: # 1 Notice to Transmit Record)(LBT) (Entered: 07/23/2014)
67 Appeal Remark re (53 in 1:14−cv−00404−RLY−TAB) Notice of Appeal, (91 in 1:14−cv−00355−RLY−TAB) Notice of Appeal, (60 in 1:14−cv−00406−RLY−MJD) Notice of Appeal (USCA #14−2386, 14−2387, 14−2388): Original record on appeal filed electronically by USCA. Contents of record : 4 vol. of pleadings and 1 unrestricted transcript. (LBT) (Entered: 07/24/2014)
68 Appeal Remark re (53 in 1:14−cv−00404−RLY−TAB) Notice of Appeal, (91 in 1:14−cv−00355−RLY−TAB) Notice of Appeal, (60 in 1:14−cv−00406−RLY−MJD) Notice of Appeal (USCA #14−2386, 14−2387, 14−2388): Supplemental record on appeal filed electronically by USCA. Contents of record : 3 sealed documents and 1 restricted transcripts. (LBT) (Entered: 07/25/2014)

Case: 1:14-cv-404 As of: 10/08/2014 12:00 AM EDT 12 of 12

07/30/2014 08/07/2014 09/15/2014
10/07/2014

69 ORDER of USCA as to (53 in 1:14−cv−00404−RLY−TAB) Notice of Appeal filed by CLERK, ALLEN COUNTY, INDIANA, COMMISSIONER, INDIANA STATE DEPARTMENT OF REVENUE, CLERK, HAMILTON COUNTY, INDIANA (USCA #14−2386) and (91 in 1:14−cv−00355−RLY−TAB) Notice of Appeal filed by PENNY BOGAN, WILLIAM C. VANNESS, GREG ZOELLER, PEGGY BEAVER (USCA #14−2387) − Upon consideration of the Appellant Hamilton County Clerk Peggy Beaver's Motion for a Voluntary Dismissal of her Appeal, filed on 7/30/2014, by counsel for appellant Hamilton County Clerk Peggy Beaver, it is ORDERED that appellant Peggy Beaver is voluntarily DISMISSED from appeal nos. 14−2386 and 14−2387 pursuant to Fed. R. App. R. 42(b). These appeals remain active with respect to the other appellants. (LBT) (Entered: 07/30/2014)
70 MANDATE of USCA as to 53 Notice of Appeal filed by CLERK, ALLEN COUNTY, INDIANA, COMMISSIONER, INDIANA STATE DEPARTMENT OF REVENUE, CLERK, HAMILTON COUNTY, INDIANA (USCA #14−2387) − It is ORDERED that appellant Peggy Beaver, Clerk of Hamilton County, is voluntarily DISMISSED from appeal nos. 14−2386 and 14−2387 pursuant to Fed. R. App. P. 42(b). These appeals remain active with respect to the other appellants. (LBT) (Entered: 08/07/2014)
71 ORDER of USCA as to (53 in 1:14−cv−00404−RLY−TAB) Notice of Appeal filed by CLERK, ALLEN COUNTY, INDIANA, COMMISSIONER, INDIANA STATE DEPARTMENT OF REVENUE, CLERK, HAMILTON COUNTY, INDIANA [USCA No. 2387], (91 in 1:14−cv−00355−RLY−TAB) Notice of Appeal filed by PENNY BOGAN, WILLIAM C. VANNESS, GREG ZOELLER, PEGGY BEAVER [USCA No. 14−2386], (60 in 1:14−cv−00406−RLY−MJD) Notice of Appeal filed by MICHAEL PINKHAM, CHRIS ATKINS, BRET SWANSON, BRIAN ABBOTT, KEN COCHRAN, JODI GOLDEN, KYLE ROSEBROUGH, STEVE DANIELS, STEVE RUSSO [USCA No. 14−2388]: IT IS ORDERED that the Motion for Stay of Mandate Pending Final Disposition of Petition for Writ of Certiorari is GRANTED. The mandate in appeals 142386, 142387, and 142388 is STAYED pending final disposition of petition for writ of certiorari. The stay will terminate automatically if the certiorari petition is denied or will terminate upon the judgment of the Supreme Court if the certiorari petition is granted. (LBT) (Entered: 09/16/2014)
72 MANDATE of USCA as to 53 Notice of Appeal filed by CLERK, ALLEN COUNTY, INDIANA, COMMISSIONER, INDIANA STATE DEPARTMENT OF REVENUE, CLERK, HAMILTON COUNTY, INDIANA (USCA #14−2387) − The judgment of the District Court is AFFIRMED, with costs, in accordance with the decision of this court entered on this date. The petition for writ of certiorari is DENIED by the U.S. Supreme Court. (LBT) (Entered: 10/07/2014)

Case #: 1:14−cv−00404−RLY−TAB