Case 1:14-cv-00406-JMS-DKL Document 1 Filed 03/14/14 Page 1 of 18 PageID #: 1

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

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. and T. R. V. BY THEIR PARENTS AND NEXT FRIENDS, SERGEANT KAREN VAUGHN-KAJMOWICZ and TAMMY VAUGHN-KAJMOWICZ
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.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Cause No: 1:14-cv-406) ) ) ) ) ) )

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Plaintiffs Officer Pamela Lee, Candace Batten-Lee, Officer Teresa Welborn, Elizabeth Piette, Batallion Chief Ruth Morrison, Martha Leverett, Sergeant Karen Vaughn-Kajmowicz, Tammy Vaughn-Kajmowicz, J.S.V., T.S.V. and T.R.V. by their Parents and Next Friends, Sergeant Karen Vaughn-

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Kajmowicz and Tammy Vaughn-Kajmowicz, by counsel, hereby allege as follows:
INTRODUCTION 1. Plaintiffs bring this action pursuant to 42 U.S.C. § 1983 to challenge the constitutionality under the United States Constitution of Indiana Code § 31-11-1-1 and its voiding of their marriages to persons of the same sex, despite plaintiffs' marriages having been lawfully entered into under the laws of a state other than Indiana. Said challenge to Indiana Code § 31-11-1-1 is both facial and as applied to plaintiffs. Indiana Code § 31-11-1-1 provides as follows: (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. 2. Indiana law provides that "[t]he validity of the marriage, being governed by the law of the place of its celebration, must be recognized in Indiana as a matter of comity." Gunter v. Dealer's Transport Company, 120 Ind. App. 409; 91 N.E.2d 377, 379 (Ind. Ct. App. 1950). 3. But under comity principles, Indiana is not required to recognize a marriage solemnized in another state if the marriage violates Indiana's public policy. Mason v. Mason, 775 N.E.2d 706, 709 (Ind. Ct. App. 2002) (while
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marriage between first cousins under the age of 65 is void in Indiana, marriage will be recognized by Indiana if the first cousins marry in a state where such marriages are recognized, as there is no Indiana statute that articulates a public policy against the marriage of first cousins).
4. Under Indiana law, the only out-of-state marriages for which there is a public policy voiding the marriage upon returning to Indiana are those marriages between persons of the same sex and marriages entered into out of state so as to evade the prohibition of marrying while mentally incompetent, drunk or on drugs. See, I.C. § 31-11-8-6.
5. Indiana's law restricting marriage to opposite-sex couples publicly stigmatizes persons in a same-sex marriage and sends a hideous message to their children by implying that persons entering into samesex marriages are equivalent to marriages entered into by the mentally incompetent, the drunk or the drugged.
6. Indiana’s refusal to recognize same-sex marriage solemnized in another state denies plaintiffs “a dignity and status of immense import.” United States v. Windsor, 133 S.Ct. 2675, 2692 (2013). Moreover, they are stigmatized and relegated to a second-class status by having their respective marriages declared void by Indiana, which suggests that their relationships are “unworthy” of recognition. Id. at 2694.
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JURISDICTION AND VENUE 7. This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and 1343 because this suit raises federal questions pursuant to 42 U.S.C. § 1983. Plaintiffs seek both injunctive relief and a declaratory judgment pursuant to 42 U.S.C. § 2201. 8. Venue is proper in the Indianapolis Division of the Southern District of Indiana under 28 U.S.C. § 1391(b) because defendants reside or have their principal offices in this district.
PARTIES 9. Defendant Mike Pence is the Governor of the State of Indiana. In his official capacity, he is the chief executive officer of Indiana and is, pursuant to Article V, Section 16 of the Indiana Constitution, responsible for the faithful execution of the laws of Indiana, including I. C. § 31-11-1-1, the law that excludes same-sex couples from having their out-of-state marriage recognized in Indiana. Governor Pence is a person within the meaning of 42 U.S.C. § 1983 and was acting under color of state law at all times relevant to this complaint. 10. Defendants Brian Abbott, Chris Atkins, Ken Cochran, Steve Daniels, Jodi Golden, Michael Pinkham, Kyle Rosebrough and Bret Swanson are members of the Board of Trustees of the Indiana Public Retirement System (“INPRS”) who administer the 1977 Police Officers’ and Firefighters’ Pension and Disability Fund (“Pension Fund”) in which Officers Lee and Welborn and Chief Morrison are participants. Defendant Steve Russo is the executive
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director of the INPRS. All of these defendants are persons within the meaning of 42 U.S.C. § 1983 and were acting under color of state law at all times relevant to this complaint.
11. All defendants named herein are sued in their official capacities. 12. Each of the defendants, and those subject to their supervision, direction, and control, intentionally performed, participated in, aided and/or abetted in some manner the acts alleged herein, proximately caused the harm alleged herein, and will continue to injure plaintiffs irreparably if not enjoined from enforcing I. C. § 31-11-1-1. 13. On October 25, 2013, plaintiffs Pamela Lee and Candace BattenLee were lawfully married in California, a state that issues marriage licenses to same-sex couples. Officer Lee, a military veteran, has served as a police officer for 22 years, serving the last 19 years with the Indianapolis Metropolitan Police Department. 14. On or about January 27, 2014, Officer Lee made application for the designation of plaintiff Candace Batten-Lee as her spouse and primary beneficiary. The Pension Fund has declined to recognize Ms. Batten-Lee as the spouse of Officer Lee because it claims it is prohibited from doing so under I.C. § 31-11-1-1. 15. On December 13, 2013, plaintiffs Teresa Welborn and Elizabeth J. Piette were lawfully married in Hawaii, a state that issues marriage licenses to
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same-sex couples. For more than 25 years, Officer Welborn has served as an officer with the Indianapolis Metropolitan Police Department.
16. On or about February 20, 2014, Officer Welborn made application for the designation of plaintiff Elizabeth Piette as her spouse and primary beneficiary. The Pension Fund has declined to recognize Ms. Piette as the spouse of Officer Welborn because it claims it was prohibited from doing so under I.C. § 31-11-1-1.
17. On September 11, 2013, Chief Morrison and Martha Leverett were issued a marriage license in Maryland, a state that issues marriage licenses to same-sex couples, and married in Washington, D.C., jurisdiction that permits same-sex marriages. Chief Morrison served in the Indianapolis Fire Department for over 27 years before retiring as battalion chief on December 23, 2013.
18. On or about September 18, 2013, Chief Morrison submitted her application for retirement benefits and affirmed under oath that her marital status is that of “married” and that plaintiff Leverett is her lawful spouse. Chief Morrison was informed by the INPRS that Leverett would not be recognized as Chief Morrison’s spouse because of I. C. § 31-11-1-1.
19. On October 25, 2013, Plaintiffs Karen Vaughn-Kajmowicz and Tammy Vaughn-Kajmowicz were lawfully married in Iowa, a state that issues marriage licenses to same-sex couples. Sergeant Vaughn-Kajmowicz, has served as a police officer for 18 years with the Evansville Police Department,
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most recently working in the Narcotics Division. Plaintiffs Sergeant VaughnKajmowicz and Tammy Vaughn-Kajmowicz are the parents of J. S. V., T. S. V. and T. R. V., each of whom is under the age of seven years.
20. In or around October 2013, Sergeant Vaughn-Kajmowicz made application for the designation of plaintiff Tammy Vaughn-Kajmowicz as her spouse and primary beneficiary. The Pension Fund has declined to recognize Ms. Vaughn-Kajmowicz as the spouse of Sergeant Vaughn-Kajmowicz because it claims it is prohibited from doing so under I.C. § 31-11-1-1.
COUNT I Indiana’s Refusal to Recognize Plaintiffs’ Marriages
Violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution 21. Plaintiffs incorporate by reference the allegations of paragraphs 120. 22. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides that “no State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” 23. By refusing to recognize plaintiffs’ same-sex marriages that were lawful in the jurisdictions where those marriages were solemnized, defendants are depriving them of the numerous legal protections that are available to opposite sex couples under Indiana law by virtue of marriage. 24. Indiana’s refusal to recognize same-sex marriages validly performed in other states infringes on protections offered by the Equal
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Protection Clause of the Fourteenth Amendment and treats plaintiffs differently because they married persons of the same sex instead of the opposite sex.
25. Officer Wellborn and Battalion Chief Morrison are vested members and beneficiaries of the Pension Fund.
26. Sergeant Vaughn-Kajmowicz, Officer Welborn and Officer Lee are active duty police officers who would be covered by the provisions of the Pension Fund if they are killed in the line of duty.
27. Sergeant Vaughn-Kajmowicz, Officer Welborn and Officer Lee are active duty police officers who would be covered by the provisions of the Pension Fund if they were to die while on active duty.
28. Under the Pension Fund, if a police officer dies in the line of duty, then the "surviving spouse is entitled to a monthly benefit during the spouse's lifetime." I.C. § 36-8-8-14.1. It is not necessary that the police officer be vested in the Pension Fund to be covered by this provision.
29. Defendants recognize the spouses of police officers married to persons of the opposite sex and enter those spouses as spouses in the officers’ records maintained by the Pension Fund. If such officers die in the line of duty, their opposite-sex spouse is entitled to be paid a monthly benefit during the spouse's lifetime.
30. Because of I. C. § 31-11-1-1, defendants have refused to enter the same-sex spouses of Sergeant Vaughn-Kajmowicz, Officer Welborn and Officer Lee as designated surviving spouse beneficiaries in the officers' records,
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making their spouses ineligible to claim this benefit if Sergeant VaughnKajmowicz, Officer Lee or Officer Welborn should die in the line of duty.
31. Under the Pension Fund, if a police officer is married to a person of the opposite sex and dies in the line of duty, the Pension Fund will pay that officer's spouse a lump sum, tax free, of $150,000.00. See I.C. § 36-8-8-20(c).
32. Because of I. C. § 31-11-1-1, defendants have refused to designate the spouses of Sergeant Vaughn-Kajmowicz, Officer Lee and Officer Welborn as designated spouse beneficiaries in the officers' records as maintained by the Pension Fund, making their spouses ineligible to claim the lump sum payment should Sergeant Vaughn-Kajmowicz, Officer Lee or Officer Welborn die in the line of duty.
33. Under the Pension Fund, if a police officer is married to a person of the opposite sex and dies while on active duty, the Pension fund will pay that officer's surviving spouse a monthly benefit. See I.C. § 36-8-8-13.8(c).
34. Because of I. C. § 31-11-1-1, defendants have refused to designate the spouses of Sergeant Vaughn-Kajmowicz, Officer Lee and Officer Welborn as designated spouse beneficiaries, making them ineligible to claim the monthly benefit should Sergeant Vaughn-Kajmowicz, Officer Lee or Officer Welborn die while on active duty.
35. Should Sergeant Vaughn-Kajmowicz die while on active duty, her dependent children will receive the monthly benefit but as the surviving mother of the children will not receive a benefit, the total of the family's monthly
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benefit will be significantly less than a similarly situated family where the officer's spouse was of the opposite sex.
36. Under the Pension Fund, if a retired firefighter dies while receiving retirement, the "surviving spouse is entitled to a monthly benefit." I.C. § 36-88-13.8. If a retired firefighter is married to a person of the opposite sex, the Pension Fund will pay the spouse of that retired firefighter a monthly benefit.
37. Because of I. C. § 31-11-1-1, defendants have refused to designate the spouse of retired Chief Morrison as a spouse beneficiary thereby making her ineligible to claim the monthly benefit should she be predeceased by Chief Morrison.
37. Without certain knowledge of what benefits will be made available to their surviving spouse, plaintiffs cannot do necessary financial and estate planning. If plaintiffs wish to provide for the same level of benefits provided by the pension fund to surviving spouses who are the opposite sex of the deceased officer or firefighter, they must pay an additional amount to private investment plans, a financial burden not imposed upon same opposite-sex couples.
38. In the case of the children, J. S. V., T. S. V. and T. R. V., while the children will qualify for a monthly benefit, their stay-at-home mother, Tammy Vaughn-Kajmowicz, will not receive a benefit. Thus, her burden to care for her children as the surviving spouse of Sergeant Vaughn-Kajmowicz will be more costly and difficult than the financial burden of an opposite-sex spouse of a deceased police officer with children.
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38. Additionally, by refusing to recognize the plaintiffs' lawful marriages from other states, Indiana law as administered and enforced by defendants deprives same-sex married couples of numerous legal protections that are available to opposite-sex married couples by virtue of marriage. By way of example:
a. A widow or widower of an opposite-sex spouse is entitled to 50% to 100% of his or her deceased spouse’s estate if the spouse died intestate. I. C. § 29-1-2-1(b). Because of I. C. § 31-11-1-1, samesex surviving spouses in this situation receive nothing.
b. If an opposite-sex spouse becomes incapacitated, her spouse may be ordered by a court to support that spouse during the period of incapacity. I. C. § 31-15-7-2. Because of I. C. § 31-11-1-1, plaintiffs are not afforded this protection by Indiana law.
c. Because of I. C. § 31-11-1-1, Indiana’s divorce laws do not apply to same-sex spouses.
d. Because of I. C. § 31-11-1-1, Indiana requires same-sex couples who file federal returns with a married filing status to file their Indiana income tax returns with a filing status of single, thus requiring plaintiffs to complete a “sample” federal return entering information as if they are each single, as a basis for their Indiana return, at additional cost and inconvenience.
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39. Same-sex married couples are excluded from these and many other legal protections and obligations provided for opposite-sex married couples under Indiana law. For example, the publication "More than Just a Couple - A Compendium of the Rights and Responsibilities of Civil Marriage in the Indiana Code" was compiled by the LGBT project at the Indiana University Maurer School of Law and identifies 614 different provisions in the Indiana Code that "are legally and linguistically tied to civil marriage, family and spousal relationships." http://www.indianaequalityaction.org/wordpress/wpcontent/uploads/2012/11/More-Than-Just-a-Couple.pdf (Last viewed on Mar. 4, 2014). Because plaintiffs are married to persons of the same sex, they cannot avail themselves of any of the protections, rights or responsibilities that Indiana imposes upon persons who are married to someone of the opposite sex.
40. By refusing to recognize the plaintiffs' lawful, out-of-state marriages, Indiana, acting through the defendants and pursuant to I. C. § 3111-1-1, disadvantages, harms and stigmatizes plaintiffs solely because their spouses are of the same sex instead of the opposite sex.
41. Because defendants refuse to recognize the plaintiffs' lawful out-ofstate marriages by virtue of I. C. § 31-11-1-1, their children are harmed and stigmatized by the treatment of their family because it is headed by two persons of the same sex versus a family headed by a man and a woman.
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42. I. C. § 31-11-1-1 tells the plaintiffs and their children that their marriages -- and their families -- are not valued in the same manner as opposite-sex marriages or single-parent families.
43. By refusing to recognize the plaintiffs' lawful out-of-state marriages, defendants, acting pursuant to I. C. § 31-11-1-1, deny plaintiffs significant legal protections, benefits and a “dignity and status of enormous import.” Windsor, 133 S. Ct. at 2692.
44. By refusing to recognize plaintiffs’ marriages validly entered into elsewhere, defendants, acting under color of I. C. § 31-11-1-1, deprive plaintiffs of the rights secured by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
COUNT II Indiana’s Refusal to Recognize Plaintiffs’ Marriages Violates the Due Process Clause of the Fourteenth Amendment
to the United States Constitution 45. Plaintiffs incorporate by reference the allegations of paragraphs 144. 46. The Fourteenth Amendment to the United States Constitution guarantees to all citizens due process of law. 47. Marriage is a fundamental right. Choices regarding marriage, like choices about other aspects of family life, are a central part of the liberty protected by the Due Process Clause.
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48. Plaintiffs, once they have been validly married in a state which authorizes same-sex marriage, have a fundamental right to remain married and a fundamental right to have their marriage recognized.
49. Plaintiffs, as persons in valid, lawful marriages have a liberty interest in their marital status that is protected by the Due Process Clause of the Fourteenth Amendment, regardless of where they choose to live in the United States as a married couple.
50. Plaintiffs, as persons in valid, lawful marriages have a protected property interest in maintaining their lawful marital status and the comprehensive protections and mutual obligations that marriage provides.
51. Plaintiffs also have a fundamental right to preserve their lawful marital status as they choose to travel in and out of Indiana.
52. Ind. Code § 31-11-1-1 denies the plaintiffs their fundamental right to have their lawful marriages recognized and their fundamental right to remain married by voiding, without any semblance of due process, the marriages they validly entered into in jurisdictions other than Indiana and thus denies them the myriad benefits, privileges and rights of marriage available under Indiana law.
53. The voiding by defendants acting pursuant to I. C. § 31-11-1-1 of plaintiffs' marriages lawfully entered into in jurisdictions other than Indiana denies the plaintiffs substantive due process by infringing upon their fundamental rights to have their lawful marriages recognized and to remain
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married and thus denies them the myriad benefits, privileges and rights of marriage available under Indiana law.
54. Defendants’ refusal to recognize plaintiffs’ respective marriages entered into in other jurisdictions where those marriages are valid and lawful, and its voiding of those marriages by operation of law, violates the Due Process Clause.
COUNT III Indiana’s Refusal to Recognize Plaintiffs’ Lawful Marriages Violates the Full Faith and Credit Clause of the United State Constitution 55. Plaintiffs incorporate by reference the allegations of paragraphs 154. 56. The Full Faith and Credit Clause of the United States Constitution provides in part: Section 1. Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof. 57. Defendants’ refusal to recognize plaintiffs' marriages is a refusal to give full faith and credit to the public acts and records of the states in which they were married in violation of the Full Faith and Credit Clause of the United States Constitution.
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DECLARATORY AND INJUNCTIVE RELIEF 28 U.S.C. §§ 2201 and 2202;
Federal Rules of Civil Procedure, Rules 57 and 65 58. Plaintiffs incorporate by reference the allegations of paragraphs 157. 58. This case presents an actual controversy because defendants’ present and ongoing denial of equal treatment to plaintiffs; the infringement of plaintiffs' fundamental rights; and the denial of due process to plaintiffs; and, an infringement of plaintiffs’ rights promised by the Full Faith and Credit Clause, subjects them to serious and immediate harms, including ongoing emotional distress and stigma, warranting the issuance of a judgment declaring that I. C. § 33-11-1-1 violates the Due Process Clause and/or the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. 59. A favorable decision enjoining defendants from further constitutional violations, and mandating them to recognize plaintiffs' marriages, would redress and prevent the irreparable injuries to plaintiffs which they have identified, and for which they have no adequate remedy at law or in equity.
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PRAYER FOR RELIEF WHEREFORE, plaintiffs respectfully request that this Court: a. Enter a declaratory judgment that Ind. Code § 31-11-1-1 on its face and as applied to plaintiffs violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution; b. Enter a declaratory judgment that Ind. Code § 31-11-1-1 on its face and as applied to plaintiffs violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution; c. Enter a declaratory judgment that Ind. Code § 31-11-1-1 on its face and as applied to plaintiffs violates the Full Faith and Credit Clause of the United States Constitution; d. Enter a permanent injunction directing defendants to recognize plaintiffs’ marriages as valid and lawful within the State of Indiana and to administer the Pension Fund 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; e. Award plaintiffs the costs of suit, including reasonable attorneys’ fees under 42 U.S.C. § 1988; and f. Enter all further relief to which plaintiffs may be justly entitled.
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Respectfully submitted,

/s/Karen Celestino-Horseman Karen Celestino-Horseman Of Counsel, Austin & Jones, P.C. One N. Pennsylvania St., Ste. 220 Indianapolis, IN 46204 Tel: (317) 632-5633 Fax: (317) 630-1040 E-mail: Karen@kchorseman.com

/s/ William R. Groth William R. Groth Fillenwarth Dennerline Groth &
& Towe, LLP 429 E. Vermont St., Ste. 200 Indianapolis, IN 46202 Tel: (317) 353-9363 Fax: (317) 351-7232 E-mail: wgroth@fdgtlaborlaw.com

/s/Mark W. Sniderman Mark W. Sniderman Sniderman Nguyen, LLP 47 S. Meridian St., Ste. 400 Indianapolis, IN 46204 Tel: (317) 361-4700 Fax: (317) 464-5111 E-mail: mark@snlawyers.com

/s/Kathleen M. Sweeney Kathleen M. Sweeney Sweeney Law Group, LLC 141 E. Washington St., Ste. 225 Indianapolis, IN 46204 Tel: (317) 491-1050 Fax: (317) 491-1043 E-mail: ksween@gmail.com

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 Case: 14-2386 Document: 212

Filed: 09/04/2014 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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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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Nos. 14-2386 to 14-2388, 14-2526

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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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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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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.

 
 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
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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.
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(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.
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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.
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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.
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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).
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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,
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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.
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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.
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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.
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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.
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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
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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.
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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.
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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.
36

 
 CCaassee11:1:144-c-cvv-0-000440066-R-RLLYY-T-MAJBD DDoocucummeennt t4582-1 FFilieledd0066/1/025/1/144 PPaaggee11oof f1177PPaaggeeIDID##: :558518

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

OFFICER PAMELA LEE, et al., Plaintiffs, -vs-
MIKE PENCE, in his official capacity as Governor of the State of Indiana, et al.
Defendants.

) ) ) ) ) ) ) Cause No: 1:14-cv-406-RLY-TAB ) ) )

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Plaintiffs Officer Pamela Lee, Candace Batten-Lee, Officer Teresa Welborn, Elizabeth Piette, Batallion Chief Ruth Morrison, Martha Leverett, Sergeant Karen Vaughn-Kajmowicz, Tammy Vaughn-Kajmowicz, J.S.V., T.S.V. and T.R.V. by their Parents and Next Friends, Sergeant Karen Vaughn-Kajmowicz and Tammy Vaughn-Kajmowicz, by counsel, hereby allege as follows:
INTRODUCTION 1Plaintiffs bring this action pursuant to 42 U.S.C. § 1983 to challenge the constitutionality under the United States Constitution of Indiana Code § 31-11-1-1 and its voiding of their marriages to persons of the same sex, despite plaintiffs' marriages having been lawfully entered
1

CCaassee11:1:144-c-cvv-0-000440066-R-RLLYY-T-MAJBD DDoocucummeennt t4582-1 FFilieledd0066/1/025/1/144 PPaaggee22oof f1177PPaaggeeIDID##: :558529
into under the laws of a state other than Indiana. Said challenge to Indiana Code § 31-11-1-1 is both facial and as applied to plaintiffs. Indiana Code § 31-1 1-1-1 provides as follows:
(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.
2. Indiana law provides that "[t]he validity of the marriage, being governed by the law of the place of its celebration, must be recognized in Indiana as a matter of comity." Gunter v. Dealer's Transport Company, 120 Ind. App. 409; 91 N.E.2d 377, 379 (Ind. Ct. App. 1950).
3. But under comity principles, Indiana is not required to recognize a marriage solemnized in another state if the marriage violates Indiana's public policy. Mason v. Mason, 775 N.E.2d 706, 709 (Ind. Ct. App. 2002) (while marriage between first cousins under the age of 65 is void in Indiana, marriage will be recognized by Indiana if the first cousins marry in a state where such marriages are recognized, as there is no Indiana statute that articulates a public policy against the marriage of first cousins).
4. Under Indiana law, the only out-of-state marriages for which there is a public policy voiding the marriage upon returning to Indiana
2

CCaassee11:1:144-c-cvv-0-000440066-R-RLLYY-T-MAJBD DDoocucummeennt t4582-1 FFilieledd0066/1/025/1/144 PPaaggee33oof f1177PPaaggeeIDID##: :558630

are those marriages between persons of the same sex and marriages

entered into out of state so as to evade the prohibition of marrying while

mentally incompetent, drunk or on drugs. See, I.C. § 31-1 1-8-6.

5. Indiana's law restricting marriage to opposite-sex couples

publicly stigmatizes persons in a same-sex marriage and sends a hideous

message to their children by implying that persons entering into same-

sex marriages are equivalent to marriages entered into by the mentally

incompetent, the drunk or the drugged.

6. Indiana’s refusal to recognize same-sex marriage

solemnized in another state denies plaintiffs “a dignity and status of

immense import.” United States v. Windsor, 133 S.Ct. 2675, 2692

(2013). Moreover, they are stigmatized and relegated to a second-class

status by having their respective marriages declared void by Indiana,

which suggests that their relationships are “unworthy” of recognition. Id.

at 2694.

JURISDICTION AND VENUE

7.

This Court has jurisdiction over this matter pursuant to 28

U.S.C. §§ 1331 and 1343 because this suit raises federal questions

pursuant to 42 U.S.C. § 1983. Plaintiffs seek both injunctive relief and a

declaratory judgment pursuant to 42 U.S.C. § 2201.

8.

Venue is proper in the Indianapolis Division of the

Southern District of Indiana under 28 U.S.C. § 139 1(b) because

3

CCaassee11:1:144-c-cvv-0-000440066-R-RLLYY-T-MAJBD DDoocucummeennt t4582-1 FFilieledd0066/1/025/1/144 PPaaggee44oof f1177PPaaggeeIDID##: :558641

defendants reside or have their principal offices in this district.

PARTIES

9.

Defendant Mike Pence is the Governor of the State of

Indiana. In his official capacity, he is the chief executive officer of

Indiana and is, pursuant to Article V, Section 16 of the Indiana

Constitution, responsible for the faithful execution of the laws of Indiana,

including I. C. § 31-11-1-1, the law that excludes same-sex couples

from having their out-of-state marriage recognized in Indiana. Governor

Pence is a person within the meaning of 42 U.S.C. § 1983 and was acting

under color of state law at all times relevant to this complaint.

10. Defendants Brian Abbott, Chris Atkins, Ken Cochran,

Steve Daniels, Jodi Golden, Michael Pinkham, Kyle Rosebrough and

Bret Swanson are members of the Board of Trustees of the Indiana Public

Retirement System (“INPRS”) who administer the 1977 Police Officers’

and Firefighters’ Pension and Disability Fund (“Pension Fund”) in which

Officers Lee and Welborn, Sergeant Vaughn-Kajmowicz and Chief

Morrison are participants. Defendant Steve Russo is the executive

director of the INPRS. All of these defendants are persons within the

meaning of 42 U.S.C. § 1983 and were acting under color of state law

at all times relevant to this complaint.

11. All defendants named herein are sued in their official

capacities. Each of the defendants, and those subject to their

4

CCaassee11:1:144-c-cvv-0-000440066-R-RLLYY-T-MAJBD DDoocucummeennt t4582-1 FFilieledd0066/1/025/1/144 PPaaggee55oof f1177PPaaggeeIDID##: :558652
supervision, direction, and control, intentionally performed, participated in, aided and/or abetted in some manner the acts alleged herein, proximately caused the harm alleged herein, and will continue to injure plaintiffs irreparably if not enjoined from enforcing I. C. § 31-11-1-1.
12. On October 25, 2013, plaintiffs Pamela Lee and Candace Batten- Lee were lawfully married in California, a state that issues marriage licenses to same-sex couples. Officer Lee, a military veteran, has served as a police officer for 22 years, serving the last 19 years with the Indianapolis Metropolitan Police Department.
13. On or about January 27, 2014, Officer Lee made application for the designation of plaintiff Candace Batten-Lee as her spouse and primary beneficiary. The Pension Fund has declined to recognize Ms. Batten-Lee as the spouse of Officer Lee because it claims it is prohibited from doing so under I.C. § 31-11-1-1.
14. On December 13, 2013, plaintiffs Teresa Welborn and Elizabeth J. Piette were lawfully married in Hawaii, a state that issues marriage licenses to same-sex couples. For more than 25 years, Officer Welborn has served as an officer with the Indianapolis Metropolitan Police Department.
16. On or about February 20, 2014, Officer Welborn made application for the designation of plaintiff Elizabeth Piette as her spouse and primary beneficiary. The Pension Fund has declined to recognize
5

CCaassee11:1:144-c-cvv-0-000440066-R-RLLYY-T-MAJBD DDoocucummeennt t4582-1 FFilieledd0066/1/025/1/144 PPaaggee66oof f1177PPaaggeeIDID##: :558663
Ms. Piette as the spouse of Officer Welborn because it claims it was prohibited from doing so under I.C. § 31-11-1-1.
17. On September 11, 2013, Chief Morrison and Martha Leverett were married in Montgomery County, Maryland, a state that issues marriage licenses to same-sex couples. Chief Morrison served in the Indianapolis Fire Department for over 27 years before retiring as battalion chief on December 23, 2013.
18. On or about September 18, 2013, Chief Morrison submitted her application for retirement benefits and affirmed under oath that her marital status is that of “married” and that plaintiff Leverett is her lawful spouse. Chief Morrison was informed by the INPRS that Leverett would not be recognized as Chief Morrison’s spouse because of I. C. § 31-11-1-1.
19. On October 25, 2013, Plaintiffs Karen Vaughn-Kajmowicz and Tammy Vaughn-Kajmowicz were lawfully married in Iowa, a state that issues marriage licenses to same-sex couples. Sergeant VaughnKajmowicz, has served as a police officer for 18 years with the Evansville Police Department, most recently working in the Narcotics Division. Plaintiffs Sergeant VaughnKajmowicz and Tammy Vaughn-Kajmowicz are the parents of J. S. V., T. S. V. and T. R. V., each of whom is under the age of seven years. In or around October 2013, Sergeant VaughnKajmowicz made application for the designation of plaintiff Tammy
6

CCaassee11:1:144-c-cvv-0-000440066-R-RLLYY-T-MAJBD DDoocucummeennt t4582-1 FFilieledd0066/1/025/1/144 PPaaggee77oof f1177PPaaggeeIDID##: :558674
Vaughn-Kajmowicz as her spouse and primary beneficiary. The Pension Fund has declined to recognize Ms. Vaughn-Kajmowicz as the spouse of Sergeant Vaughn-Kajmowicz because it claims it is prohibited from doing so under I.C. § 31-11-1-1.
COUNT I Indiana’s Refusal to Recognize Plaintiffs’ Marriages
Violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution
20. Plaintiffs incorporate by reference the allegations of paragraphs 1- 20.
21. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides that “no State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”
22. By refusing to recognize plaintiffs’ same-sex marriages that were lawful in the jurisdictions where those marriages were solemnized, defendants are depriving them of the numerous legal protections that are available to opposite sex couples under Indiana law by virtue of marriage.
23. Indiana’s refusal to recognize same-sex marriages validly performed in other states infringes on protections offered by the Equal Protection Clause of the Fourteenth Amendment and treats plaintiffs differently because they married persons of the same sex instead of the opposite sex.
25. Officer Wellborn and Battalion Chief Morrison are vested 7

CCaassee11:1:144-c-cvv-0-000440066-R-RLLYY-T-MAJBD DDoocucummeennt t4582-1 FFilieledd0066/1/025/1/144 PPaaggee88oof f1177PPaaggeeIDID##: :558685
members and beneficiaries of the Pension Fund. 26. Sergeant Vaughn-Kajmowicz, Officer Welborn and Officer Lee
are active duty police officers who would be covered by the provisions of the Pension Fund if they are killed in the line of duty.
27. Sergeant Vaughn-Kajmowicz, Officer Welborn and Officer Lee are active duty police officers who would be covered by the provisions of the Pension Fund if they were to die while on active duty.
28. Under the Pension Fund, if a police officer dies in the line of duty, then the "surviving spouse is entitled to a monthly benefit during the spouse's lifetime." I.C. § 36-8-8-14.1. It is not necessary that the police officer be vested in the Pension Fund to be covered by this provision.
29. Defendants recognize the spouses of police officers married to persons of the opposite sex and enter those spouses as spouses in the officers’ records maintained by the Pension Fund. If such officers die in the line of duty, their opposite-sex spouse is entitled to be paid a monthly benefit during the spouse's lifetime.
30. Because of I. C. § 31-11-1-1, defendants have refused to enter the same-sex spouses of Sergeant Vaughn-Kajmowicz, Officer Welborn and Officer Lee as designated surviving spouse beneficiaries in the officers' records, making their spouses ineligible to claim this benefit if Sergeant VaughnKajmowicz, Officer Lee or Officer Welborn should die in
8

CCaassee11:1:144-c-cvv-0-000440066-R-RLLYY-T-MAJBD DDoocucummeennt t4582-1 FFilieledd0066/1/025/1/144 PPaaggee99oof f1177PPaaggeeIDID##: :558696
the line of duty. 31. Under the Pension Fund, if a police officer is married to a
person of the opposite sex and dies in the line of duty, the Pension Fund will pay that officer's spouse a lump sum, tax free, of $150,000.00. See I.C. § 36-8-8-20(c).
32. Because of I. C. § 31-11-1-1, defendants have refused to designate the spouses of Sergeant Vaughn-Kajmowicz, Officer Lee and Officer Welborn as designated spouse beneficiaries in the officers' records as maintained by the Pension Fund, making their spouses ineligible to claim the lump sum payment should Sergeant VaughnKajmowicz, Officer Lee or Officer Welborn die in the line of duty.
33. Under the Pension Fund, if a police officer is married to a person of the opposite sex and dies while on active duty, the Pension fund will pay that officer's surviving spouse a monthly benefit. See I.C. § 36-8-8-13.8(c).
34. Because of I. C. § 31-11-1-1, defendants have refused to designate the spouses of Sergeant Vaughn-Kajmowicz, Officer Lee and Officer Welborn as designated spouse beneficiaries, making them ineligible to claim the monthly benefit should Sergeant VaughnKajmowicz, Officer Lee or Officer Welborn die while on active duty.
35. Should Sergeant Vaughn-Kajmowicz die while on active duty, her dependent children will receive the monthly benefit but as the
9

CCaassee11:1:144-c-cvv-0-000440066-R-RLLYY-T-MAJBD DDoocucummeennt t4582-1 FFilieledd0066/1/025/1/144 PPaaggee1100oof f1177PPaaggeeIDID##: :559607
surviving mother of the children will not receive a benefit, the total of the family's monthly benefit will be significantly less than a similarly situated family where the officer's spouse was of the opposite sex.
36. Under the Pension Fund, if a retired firefighter dies while receiving retirement, the "surviving spouse is entitled to a monthly benefit." I.C. § 36-8- 8-13.8. If a retired firefighter is married to a person of the opposite sex, the Pension Fund will pay the spouse of that retired firefighter a monthly benefit.
37[a]. Because of I. C. § 31-11-1-1, defendants have refused to designate the spouse of retired Chief Morrison as a spouse beneficiary thereby making her ineligible to claim the monthly benefit should she be predeceased by Chief Morrison.
37[b].Without certain knowledge of what benefits will be made available to their surviving spouse, plaintiffs cannot do necessary financial and estate planning. If plaintiffs wish to provide for the same level of benefits provided by the pension fund to surviving spouses who are the opposite sex of the deceased officer or firefighter, they must pay an additional amount to private investment plans, a financial burden not imposed upon same opposite-sex couples.
38[a]. In the case of the children, J. S. V., T. S. V. and T. R. V., while the children will qualify for a monthly benefit, their stay-at-home mother, Tammy Vaughn-Kajmowicz, will not receive a benefit. Thus, her burden to
10

CCaassee11:1:144-c-cvv-0-000440066-R-RLLYY-T-MAJBD DDoocucummeennt t4582-1 FFilieledd0066/1/025/1/144 PPaaggee1111oof f1177PPaaggeeIDID##: :559618
care for her children as the surviving spouse of Sergeant VaughnKajmowicz will be more costly and difficult than the financial burden of an opposite-sex spouse of a deceased police officer with children.
38[b].Additionally, by refusing to recognize the plaintiffs' lawful marriages from other states, Indiana law as administered and enforced by defendants deprives same-sex married couples of numerous legal protections that are available to opposite-sex married couples by virtue of marriage. By way of example:
a. A widow or widower of an opposite-sex spouse is entitled to 50% to 100% of his or her deceased spouse’s estate if the spouse died intestate. I. C. § 29-1-2-1(b). Because of I. C. § 31-11-11, same- sex surviving spouses in this situation receive nothing.
b. If an opposite-sex spouse becomes incapacitated, her spouse may be ordered by a court to support that spouse during the period of incapacity. I. C. § 31-15-7-2. Because of I. C. § 3111-1-1, plaintiffs are not afforded this protection by Indiana law.
c. Because of I. C. § 31-11-1-1, Indiana’s divorce laws do not apply to same-sex spouses.
d. Because of I. C. § 31-11-1-1, Indiana requires same-sex couples who file federal returns with a married filing status 11

CCaassee11:1:144-c-cvv-0-000440066-R-RLLYY-T-MAJBD DDoocucummeennt t4582-1 FFilieledd0066/1/025/1/144 PPaaggee1122oof f1177PPaaggeeIDID##: :559629
to file their Indiana income tax returns with a filing status of single, thus requiring plaintiffs to complete a “sample” federal return entering information as if they are each single, as a basis for their Indiana return, at additional cost and inconvenience. 39. Same-sex married couples are excluded from these and many other legal protections and obligations provided for opposite-sex married couples under Indiana law. For example, the publication "More than Just a Couple - A Compendium of the Rights and Responsibilities of Civil Marriage in the Indiana Code" was compiled by the LGBT project at the Indiana University Maurer School of Law and identifies 614 different provisions in the Indiana Code that "are legally and linguistically tied to civil marriage, family and spousal relationships." http://www.indianaequalityaction.org/wordpress/wp/content/uploads/ 2012/11/More-Than-Just-a-Couple.pdf (Last viewed on Mar. 4, 2014). Because plaintiffs are married to persons of the same sex, they cannot avail themselves of any of the protections, rights or responsibilities that Indiana imposes upon persons who are married to someone of the opposite sex. 40. By refusing to recognize the plaintiffs' lawful, out-ofstate marriages, Indiana, acting through the defendants and pursuant to I. C. § 31- 11-1-1, disadvantages, harms and stigmatizes plaintiffs solely
12

CCaassee11:1:144-c-cvv-0-000440066-R-RLLYY-T-MAJBD DDoocucummeennt t4582-1 FFilieledd0066/1/025/1/144 PPaaggee1133oof f1177PPaaggeeIDID##: :559730
because their spouses are of the same sex instead of the opposite sex. 41. Because defendants refuse to recognize the plaintiffs' lawful
out-of- state marriages by virtue of I. C. § 31-11-1-1, their children are harmed and stigmatized by the treatment of their family because it is headed by two persons of the same sex versus a family headed by a man and a woman.
42. I. C. § 31-1 1-1-1 tells the plaintiffs and their children that their marriages -- and their families -- are not valued in the same manner as opposite-sex marriages or single-parent families.
43. By refusing to recognize the plaintiffs' lawful out-of-state marriages, defendants, acting pursuant to I. C. § 31-11-1-1, deny plaintiffs significant legal protections, benefits and a “dignity and status of enormous import.” Windsor, 133 S. Ct. at 2692.
44. By refusing to recognize plaintiffs’ marriages validly entered into elsewhere, defendants, acting under color of I. C. § 31-11-11, deprive plaintiffs of the rights secured by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
COUNT II Indiana’s Refusal to Recognize Plaintiffs’ Marriages Violates the Due Process Clause of the Fourteenth Amendment
to the United States Constitution 45. Plaintiffs incorporate by reference the allegations of paragraphs 1- 44. 46. The Fourteenth Amendment to the United States Constitution
13

CCaassee11:1:144-c-cvv-0-000440066-R-RLLYY-T-MAJBD DDoocucummeennt t4582-1 FFilieledd0066/1/025/1/144 PPaaggee1144oof f1177PPaaggeeIDID##: :559741
guarantees to all citizens due process of law. 47. Marriage is a fundamental right. Choices regarding marriage,
like choices about other aspects of family life, are a central part of the liberty protected by the Due Process Clause.
48. Plaintiffs, once they have been validly married in a state which authorizes same-sex marriage, have a fundamental right to remain married and a fundamental right to have their marriage recognized.
49. Plaintiffs, as persons in valid, lawful marriages have a liberty interest in their marital status that is protected by the Due Process Clause of the Fourteenth Amendment, regardless of where they choose to live in the United States as a married couple.
50. Plaintiffs, as persons in valid, lawful marriages have a protected property interest in maintaining their lawful marital status and the comprehensive protections and mutual obligations that marriage provides.
51. Plaintiffs also have a fundamental right to preserve their lawful marital status as they choose to travel in and out of Indiana.
52. Ind. Code § 31-1 1-1-1 denies the plaintiffs their fundamental right to have their lawful marriages recognized and their fundamental right to remain married by voiding, without any semblance of due process, the marriages they validly entered into in jurisdictions other than Indiana and thus denies them the myriad
14

CCaassee11:1:144-c-cvv-0-000440066-R-RLLYY-T-MAJBD DDoocucummeennt t4582-1 FFilieledd0066/1/025/1/144 PPaaggee1155oof f1177PPaaggeeIDID##: :559752
benefits, privileges and rights of marriage available under Indiana law. 53. The voiding by defendants acting pursuant to I. C. § 31-1 1-1-
1 of plaintiffs' marriages lawfully entered into in jurisdictions other than Indiana denies the plaintiffs substantive due process by infringing upon their fundamental rights to have their lawful marriages recognized and to remain married and thus denies them the myriad benefits, privileges and rights of marriage available under Indiana law.
54. Defendants’ refusal to recognize plaintiffs’ respective marriages entered into in other jurisdictions where those marriages are valid and lawful, and its voiding of those marriages by operation of law, violates the Due Process Clause.
DECLARATORY AND INJUNCTIVE RELIEF 28 U.S.C. §§ 2201 and 2202;
Federal Rules of Civil Procedure, Rules 57 and 65 55. Plaintiffs incorporate by reference the allegations of paragraphs 1- 54. 56. This case presents an actual controversy because defendants’ present and ongoing denial of equal treatment to plaintiffs; the infringement of plaintiffs' fundamental rights; and the denial of due process to plaintiffs; and, an infringement of plaintiffs’ rights promised by the Full Faith and Credit Clause, subjects them to serious and immediate harms, including ongoing emotional distress and stigma, warranting the issuance of a judgment declaring that I. C. § 33-11-1-1
15

CCaassee11:1:144-c-cvv-0-000440066-R-RLLYY-T-MAJBD DDoocucummeennt t4582-1 FFilieledd0066/1/025/1/144 PPaaggee1166oof f1177PPaaggeeIDID##: :559763

violates the Due Process Clause and/or the Equal Protection Clause of

the Fourteenth Amendment to the United States Constitution.

57. A favorable decision enjoining defendants from further

constitutional violations, and mandating them to recognize plaintiffs'

marriages, would redress and prevent the irreparable injuries to plaintiffs

which they have identified, and for which they have no adequate remedy

at law or in equity.

PRAYER FOR RELIEF

WHEREFORE, plaintiffs respectfully request that this Court:

a.

Enter a declaratory judgment that Ind. Code § 31-1 1-1-1 on

its face and as applied to plaintiffs violates the Equal Protection Clause of

the Fourteenth Amendment to the United States Constitution;

b.

Enter a declaratory judgment that Ind. Code § 31-1 1-1-1 on

its face and as applied to plaintiffs violates the Due Process Clause of

the Fourteenth Amendment to the United States Constitution;

c.

Enter a declaratory judgment that Ind. Code § 31-1 1-1-1

on its face and as applied to plaintiffs violates the Full Faith and Credit

Clause of the United States Constitution;

d.

Enter a permanent injunction directing defendants to

recognize plaintiffs’ marriages as valid and lawful within the State of

Indiana and to administer the Pension Fund so as to provide the same

benefits for all married couples, regardless of whether the couples are of

16

CCaassee11:1:144-c-cvv-0-000440066-R-RLLYY-T-MAJBD DDoocucummeennt t4582-1 FFilieledd0066/1/025/1/144 PPaaggee1177oof f1177PPaaggeeIDID##: :559774

the opposite sex or the same sex;

e.

Award plaintiffs the costs of suit, including reasonable

attorneys’ fees under 42 U.S.C. § 1988; and

f.

Enter all further relief to which plaintiffs may be justly

entitled.

Respectfully submitted,

/s/Karen Celestino-Horseman Karen Celestino-Horseman Of Counsel, Austin & Jones, P.C. One N. Pennsylvania St., Ste. 220 Indianapolis, IN 46204 Tel: (317) 632-5633 Fax: (317) 630-1040 E-mail: Karen@kchorseman.com
/s/ Mark W. Sniderman Mark W. Sniderman Sniderman Nguyen, LLP 47 S. Meridian St., Ste. 400 Indianapolis, IN 46204 Tel: (317) 361-4700 Fax: (317) 464-5111 E-mail: mark@snlawyers.com
/s/ Robert A. Katz* Robert A. Katz Indiana University McKinney School of Law 530 W. New York St., Room 349 Indianapolis, IN 46202 E-mail: robkatz87@gmail.com *Pro Hac Vice Admission Requested

/s/ William R. Groth William R. Groth Fillenwarth Dennerline Groth
& Towe, LLP 429 E. Vermont St., Ste. 200 Indianapolis, IN 46202 Tel: (317) 353-9363 Fax: (317) 351-7232 E-mail: wgroth@fdgtlaborlaw.com
/s/ Kathleen M. Sweeney Kathleen M. Sweeney Sweeney Law Group, LLC 141 E. Washington St., Ste. 225 Indianapolis, IN 46204 Tel: (317) 491-1050 Fax: (317) 491-1043 E-mail: ksween@gmail.com
/s/ Kelly R. Eskew Kelly R. Eskew 6459 Central Avenue Indianapolis, IN 46220 Email: kellyreskew@gmail.com

17

 
 Case: 1:14-cv-406 As of: 11/06/2017 01:47 AM EST 1 of 13
MANDATE,CLOSED
U.S. District Court Southern District of Indiana (Indianapolis) CIVIL DOCKET FOR CASE #: 1:14−cv−00406−RLY−MJD

LEE et al v. PENCE et al Assigned to: Judge Richard L. Young Referred to: Magistrate Judge Mark J. Dinsmore Related Cases: 1:14−cv−00355−RLY−TAB
1:14−cv−00404−RLY−TAB
4:14−cv−00015−RLY−TAB
1:14−cv−00405−RLY−TAB
Case in other court: 7th Circuit, 14−02388 − 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

PAMELA LEE Officer

represented by Karen Celestino−Horseman OF COUNSEL, AUSTIN & JONES, PC One North Pennsylvania Suite 220 Indianapolis, IN 46204 (317) 632−5633 Fax: (317) 630−1040 Email: karen@kchorseman.com ATTORNEY TO BE NOTICED

Kathleen M. Sweeney SWEENEY HAYES LLC 141 East Washington Street Suite 225 Indianapolis, IN 46204 (317) 491−1050 Fax: (317) 491−1043 Email: ksween@gmail.com ATTORNEY TO BE NOTICED

Mark W. Sniderman SNIDERMAN NGUYEN LLP 47 S. Meridian Street Suite 400 Indianapolis, IN 46204 (317) 361−4700 Fax: (317) 464−5111 Email: mark@snlawyers.com ATTORNEY TO BE NOTICED

Robert A. Katz INDIANA UNIVERSITY MCKINNEY SCHOOL OF LAW 530 West New York Street Room 349 Indianapolis, IN 46202 317−278−4791 Fax: 317−278−3326 ATTORNEY TO BE NOTICED

William R. Groth FILLENWARTH DENNERLINE GROTH & TOWE LLP 429 E. Vermont Street, Suite 200 Indianapolis, IN 46202 (317)353−9363

Case: 1:14-cv-406 As of: 11/06/2017 01:47 AM EST 2 of 13

Fax: (317)351−7232 Email: wgroth@fdgtlaborlaw.com ATTORNEY TO BE NOTICED

Plaintiff CANDACE BATTEN−LEE

represented by Karen Celestino−Horseman (See above for address) ATTORNEY TO BE NOTICED

Kathleen M. Sweeney (See above for address) ATTORNEY TO BE NOTICED

Mark W. Sniderman (See above for address) ATTORNEY TO BE NOTICED

Robert A. Katz (See above for address) ATTORNEY TO BE NOTICED

William R. Groth (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
TERESA WELBORN OFFICER

represented by Karen Celestino−Horseman (See above for address) ATTORNEY TO BE NOTICED

Kathleen M. Sweeney (See above for address) ATTORNEY TO BE NOTICED

Mark W. Sniderman (See above for address) ATTORNEY TO BE NOTICED

Robert A. Katz (See above for address) ATTORNEY TO BE NOTICED

William R. Groth (See above for address) ATTORNEY TO BE NOTICED

Plaintiff ELIZABETH J. PIETTE

represented by Karen Celestino−Horseman (See above for address) ATTORNEY TO BE NOTICED

Kathleen M. Sweeney (See above for address) ATTORNEY TO BE NOTICED

Mark W. Sniderman (See above for address) ATTORNEY TO BE NOTICED

Robert A. Katz (See above for address) ATTORNEY TO BE NOTICED

Case: 1:14-cv-406 As of: 11/06/2017 01:47 AM EST 3 of 13

William R. Groth (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
RUTH MORRISON BATALLION CHIEF

represented by Karen Celestino−Horseman (See above for address) ATTORNEY TO BE NOTICED

Kathleen M. Sweeney (See above for address) ATTORNEY TO BE NOTICED

Mark W. Sniderman (See above for address) ATTORNEY TO BE NOTICED

Robert A. Katz (See above for address) ATTORNEY TO BE NOTICED

William R. Groth (See above for address) ATTORNEY TO BE NOTICED

Plaintiff MARTHA LEVERETT

represented by Karen Celestino−Horseman (See above for address) ATTORNEY TO BE NOTICED

Kathleen M. Sweeney (See above for address) ATTORNEY TO BE NOTICED

Mark W. Sniderman (See above for address) ATTORNEY TO BE NOTICED

Robert A. Katz (See above for address) ATTORNEY TO BE NOTICED

William R. Groth (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
KAREN VAUGHN−KAJMOWICZ SERGEANT

represented by Karen Celestino−Horseman (See above for address) ATTORNEY TO BE NOTICED

Kathleen M. Sweeney (See above for address) ATTORNEY TO BE NOTICED

Mark W. Sniderman (See above for address) ATTORNEY TO BE NOTICED

Robert A. Katz (See above for address) ATTORNEY TO BE NOTICED

Case: 1:14-cv-406 As of: 11/06/2017 01:47 AM EST 4 of 13

William R. Groth (See above for address) ATTORNEY TO BE NOTICED

Plaintiff TAMMY VAUGHN−KAJMOWICZ

represented by Karen Celestino−Horseman (See above for address) ATTORNEY TO BE NOTICED

Kathleen M. Sweeney (See above for address) ATTORNEY TO BE NOTICED

Mark W. Sniderman (See above for address) ATTORNEY TO BE NOTICED

Robert A. Katz (See above for address) ATTORNEY TO BE NOTICED

William R. Groth (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
J. S. V. by their parents and next friends, Sergeant Karen Vaughn−Kajmowicz and Tammy Vaughn−Kajmowicz

represented by Karen Celestino−Horseman (See above for address) ATTORNEY TO BE NOTICED
Kathleen M. Sweeney (See above for address) ATTORNEY TO BE NOTICED

Mark W. Sniderman (See above for address) ATTORNEY TO BE NOTICED

Robert A. Katz (See above for address) ATTORNEY TO BE NOTICED

William R. Groth (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
T. S. V. by their parents and next friends, Sergeant Karen Vaughn−Kajmowicz and Tammy Vaughn−Kajmowicz

represented by Karen Celestino−Horseman (See above for address) ATTORNEY TO BE NOTICED
Kathleen M. Sweeney (See above for address) ATTORNEY TO BE NOTICED

Mark W. Sniderman (See above for address) ATTORNEY TO BE NOTICED

Robert A. Katz (See above for address) ATTORNEY TO BE NOTICED

Case: 1:14-cv-406 As of: 11/06/2017 01:47 AM EST 5 of 13

William R. Groth (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
T. R. V. by their parents and next friends, Sergeant Karen Vaughn−Kajmowicz and Tammy Vaughn−Kajmowicz

represented by Karen Celestino−Horseman (See above for address) ATTORNEY TO BE NOTICED
Kathleen M. Sweeney (See above for address) ATTORNEY TO BE NOTICED

Mark W. Sniderman (See above for address) ATTORNEY TO BE NOTICED

Robert A. Katz (See above for address) ATTORNEY TO BE NOTICED

William R. Groth (See above for address) ATTORNEY TO BE NOTICED

V. Defendant MIKE PENCE IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE STATE OF INDIANA
Defendant BRIAN ABBOTT IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF TRUSTEES OF THE INDIANA PUBLIC RETIREMENT SYSTEM
Defendant CHRIS ATKINS IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF TRUSTEES OF THE INDIANA PUBLIC RETIREMENT SYSTEM
Defendant KEN COCHRAN IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF TRUSTEES OF THE INDIANA PUBLIC RETIREMENT SYSTEM
Defendant

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
represented by Thomas M. Fisher (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas M. Fisher (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas M. Fisher (See above for address) ATTORNEY TO BE NOTICED

Case: 1:14-cv-406 As of: 11/06/2017 01:47 AM EST 6 of 13

STEVE DANIELS IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF TRUSTEES OF THE INDIANA PUBLIC RETIREMENT SYSTEM

represented by Thomas M. Fisher (See above for address) ATTORNEY TO BE NOTICED

Defendant
JODI GOLDEN IN HER OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF TRUSTEES OF THE INDIANA PUBLIC RETIREMENT SYSTEM

represented by Thomas M. Fisher (See above for address) ATTORNEY TO BE NOTICED

Defendant
MICHAEL PINKHAM IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF TRUSTEES OF THE INDIANA PUBLIC RETIREMENT SYSTEM

represented by Thomas M. Fisher (See above for address) ATTORNEY TO BE NOTICED

Defendant
KYLE ROSEBROUGH IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF TRUSTEES OF THE INDIANA PUBLIC RETIREMENT SYSTEM

represented by Thomas M. Fisher (See above for address) ATTORNEY TO BE NOTICED

Defendant
BRET SWANSON IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE BOARD OF TRUSTEES OF THE INDIANA PUBLIC RETIREMENT SYSTEM

represented by Thomas M. Fisher (See above for address) ATTORNEY TO BE NOTICED

Defendant
STEVE RUSSO IN HIS OFFICIAL CAPACITY AS EXECUTIVE DIRECTOR OF THE INDIANA PUBLIC RETIREMENT SYSTEM

represented by Thomas M. Fisher (See above for address) ATTORNEY TO BE NOTICED

Date Filed 03/14/2014
03/14/2014

# Docket Text
1 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF against All Defendants, filed by All Plaintiffs. (Filing fee $400, receipt number 0756−2989558) (Attachments: # 1 Civil Cover Sheet, # 2 Attachment to Civil Cover Sheet, # 3 Proposed Summons)(Groth, William) Modified on 3/17/2014 for party text (DJH). (Entered: 03/14/2014)
2 NOTICE of Appearance by William R. Groth on behalf of Plaintiffs CANDACE BATTEN−LEE, PAMELA LEE, MARTHA LEVERETT, RUTH MORRISON, ELIZABETH J. PIETTE, T. R. V., BY THEIR PARENTS AND NEXT FRIENDS, SERGEANT KAREN VAUGHN−KAJMOWICZ AND TAMMY VAUGHN−KAJMOWICZ, T. S. V., BY THEIR PARENTS AND NEXT FRIENDS, SERGEANT KAREN VAUGHN−KAJMOWICZ AND TAMMY VAUGHN−KAJMOWICZ, J. S. V., BY THEIR PARENTS AND NEXT FRIENDS, SERGEANT KAREN VAUGHN−KAJMOWICZ AND TAMMY VAUGHN−KAMOWICZ, KAREN VAUGHN−KAJMOWICZ, TAMMY VAUGHN−KAJMOWICZ, TERESA WELBORN. (Groth, William) (Entered: 03/14/2014)

Case: 1:14-cv-406 As of: 11/06/2017 01:47 AM EST 7 of 13

03/14/2014
03/14/2014
03/14/2014
03/17/2014 03/17/2014 03/18/2014 03/19/2014 03/20/2014 03/20/2014 03/20/2014 03/20/2014 03/20/2014

3 NOTICE of Appearance by Karen Celestino Horseman on behalf of Plaintiffs CANDACE BATTEN−LEE, PAMELA LEE, MARTHA LEVERETT, RUTH MORRISON, ELIZABETH J. PIETTE, T. R. V., BY THEIR PARENTS AND NEXT FRIENDS, SERGEANT KAREN VAUGHN−KAJMOWICZ AND TAMMY VAUGHN−KAJMOWICZ, T. S. V., BY THEIR PARENTS AND NEXT FRIENDS, SERGEANT KAREN VAUGHN−KAJMOWICZ AND TAMMY VAUGHN−KAJMOWICZ, J. S. V., BY THEIR PARENTS AND NEXT FRIENDS, SERGEANT KAREN VAUGHN−KAJMOWICZ AND TAMMY VAUGHN−KAMOWICZ, KAREN VAUGHN−KAJMOWICZ, TAMMY VAUGHN−KAJMOWICZ, TERESA WELBORN. (Horseman, Karen) (Entered: 03/14/2014)
4 NOTICE of Appearance by Mark W. Sniderman on behalf of Plaintiffs CANDACE BATTEN−LEE, PAMELA LEE, MARTHA LEVERETT, RUTH MORRISON, ELIZABETH J. PIETTE, T. R. V., BY THEIR PARENTS AND NEXT FRIENDS, SERGEANT KAREN VAUGHN−KAJMOWICZ AND TAMMY VAUGHN−KAJMOWICZ, T. S. V., BY THEIR PARENTS AND NEXT FRIENDS, SERGEANT KAREN VAUGHN−KAJMOWICZ AND TAMMY VAUGHN−KAJMOWICZ, J. S. V., BY THEIR PARENTS AND NEXT FRIENDS, SERGEANT KAREN VAUGHN−KAJMOWICZ AND TAMMY VAUGHN−KAMOWICZ, KAREN VAUGHN−KAJMOWICZ, TAMMY VAUGHN−KAJMOWICZ, TERESA WELBORN. (Sniderman, Mark) (Entered: 03/14/2014)
5 NOTICE of Appearance by Kathleen M. Sweeney on behalf of Plaintiffs CANDACE BATTEN−LEE, PAMELA LEE, MARTHA LEVERETT, RUTH MORRISON, ELIZABETH J. PIETTE, T. R. V., BY THEIR PARENTS AND NEXT FRIENDS, SERGEANT KAREN VAUGHN−KAJMOWICZ AND TAMMY VAUGHN−KAJMOWICZ, T. S. V., BY THEIR PARENTS AND NEXT FRIENDS, SERGEANT KAREN VAUGHN−KAJMOWICZ AND TAMMY VAUGHN−KAJMOWICZ, J. S. V., BY THEIR PARENTS AND NEXT FRIENDS, SERGEANT KAREN VAUGHN−KAJMOWICZ AND TAMMY VAUGHN−KAMOWICZ, KAREN VAUGHN−KAJMOWICZ, TAMMY VAUGHN−KAJMOWICZ, TERESA WELBORN. (Sweeney, Kathleen) Modified on 3/17/2014 for firm name (DJH). (Entered: 03/14/2014)
6 Summons Issued as to All Defendants. (DJH) (Entered: 03/17/2014)
7 MAGISTRATE JUDGE's NOTICE of Availability to Exercise Jurisdiction issued. (DJH) (Entered: 03/17/2014)
8 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 Jane Magnus−Stinson 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)
9 NOTICE of Reassignment of Case to Judge Richard L. Young and Magistrate Judge Tim A. Baker. Judge Jane Magnus−Stinson, Magistrate Judge Denise K. LaRue no longer assigned to the case. Please include the new case number, 1:14−cv−0406−RLY−TAB, on all future filings in this matter. (AAM) (Entered: 03/19/2014)
10 RETURN of Personal Service, filed by All Plaintiffs. MIKE PENCE served on 3/20/2014. (Attachments: # 1 Affidavit)(Horseman, Karen) (Entered: 03/20/2014)
11 RETURN of Personal Service, filed by All Plaintiffs. BRIAN ABBOTT served on 3/20/2014. (Attachments: # 1 Affidavit)(Horseman, Karen) (Entered: 03/20/2014)
12 RETURN of Personal Service, filed by All Plaintiffs. CHRIS ATKINS served on 3/20/2014. (Attachments: # 1 Affidavit)(Horseman, Karen) (Entered: 03/20/2014)
13 RETURN of Personal Service, filed by All Plaintiffs. KEN COCHRAN served on 3/20/2014. (Attachments: # 1 Affidavit)(Horseman, Karen) (Entered: 03/20/2014)
14 RETURN of Personal Service, filed by All Plaintiffs. STEVE DANIELS served on 3/20/2014. (Attachments: # 1 Affidavit)(Horseman, Karen) (Entered: 03/20/2014)

Case: 1:14-cv-406 As of: 11/06/2017 01:47 AM EST 8 of 13

03/20/2014 03/20/2014 03/20/2014 03/20/2014 03/20/2014 03/26/2014 03/27/2014 04/04/2014 04/08/2014 04/18/2014 04/21/2014
04/21/2014 04/21/2014

15 RETURN of Personal Service, filed by All Plaintiffs. JODI GOLDEN served on 3/20/2014. (Attachments: # 1 Affidavit)(Horseman, Karen) (Entered: 03/20/2014)
16 RETURN of Personal Service, filed by All Plaintiffs. (Attachments: # 1 Affidavit)(Horseman, Karen) (Entered: 03/20/2014)
17 RETURN of Personal Service, filed by All Plaintiffs. BRET SWANSON served on 3/20/2014. (Attachments: # 1 Affidavit)(Horseman, Karen) (Entered: 03/20/2014)
18 RETURN of Personal Service, filed by All Plaintiffs. KYLE ROSEBROUGH served on 3/20/2014. (Attachments: # 1 Affidavit)(Horseman, Karen) (Entered: 03/20/2014)
19 RETURN of Personal Service, filed by All Plaintiffs. STEVE RUSSO served on 3/20/2014. (Attachments: # 1 Affidavit)(Horseman, Karen) (Entered: 03/20/2014)
20 NOTICE of Appearance by Thomas M. Fisher on behalf of Defendants BRIAN ABBOTT, CHRIS ATKINS, KEN COCHRAN, STEVE DANIELS, JODI GOLDEN, MIKE PENCE, MICHAEL PINKHAM, KYLE ROSEBROUGH, STEVE RUSSO, BRET SWANSON. (Fisher, Thomas) (Entered: 03/26/2014)
21 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)
23 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)
24 NOTICE of Parties' First Extension of Time, filed by Defendants BRIAN ABBOTT, CHRIS ATKINS, KEN COCHRAN, STEVE DANIELS, JODI GOLDEN, MIKE PENCE, MICHAEL PINKHAM, KYLE ROSEBROUGH, STEVE RUSSO, BRET SWANSON. (Fisher, Thomas) (Entered: 04/08/2014)
25 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)
27 MOTION for Summary Judgment , filed by Plaintiffs CANDACE BATTEN−LEE, PAMELA LEE, MARTHA LEVERETT, RUTH MORRISON, ELIZABETH J. PIETTE, J. S. V., T. R. V., T. S. V., KAREN VAUGHN−KAJMOWICZ, TAMMY VAUGHN−KAJMOWICZ, TERESA WELBORN. *** CERTAIN EXHIBITS SEALED PER ORDER DATED 4/30/2014 *** (Attachments: # (1) Exhibit A − Affidavit of Officer Pamela Lee and Candace Batten−Lee, # (2) Exhibit A−1 − Application for Beneficiary Designation for Active Member, # (3) Exhibit B − Affidavit of Officer Teresa Welborn and Elizabeth Peitte, # (4) Exhibit B−1 − Application for Beneficiary Designation for Active Member, # (5) Exhibit C − Affidavit of Sergeant Karen Vaughn−Kajmowicz and Tammy Vaughn−Kajmowicz, # (6) Exhibit C−1 − Memorandum to Pension Board, # (7) Exhibit C−2 − Memorandum to Sergeant Vaughn−Kajmowicz, # (8) Exhibit C−3 − Transcribed Voice Message from John Warren, # (9) Exhibit D − Affidavit of Battalion Chief Ruth Morrison and Martha Leverett, # (10) Exhibit D−1 − Application for Retirement Benefits, # (11) Exhibit D−2 − E−mail Exchange)(Groth, William) Modified on 4/30/2014 (SWM). (Entered: 04/21/2014)
28 BRIEF/MEMORANDUM in Support re 27 MOTION for Summary Judgment , filed by Plaintiffs CANDACE BATTEN−LEE, PAMELA LEE, MARTHA LEVERETT, RUTH MORRISON, ELIZABETH J. PIETTE, J. S. V., T. R. V., T. S. V., KAREN VAUGHN−KAJMOWICZ, TAMMY VAUGHN−KAJMOWICZ, TERESA WELBORN. (Groth, William) (Entered: 04/21/2014)
29 MOTION for Preliminary Injunction , filed by Plaintiffs CANDACE BATTEN−LEE, PAMELA LEE, MARTHA LEVERETT, RUTH MORRISON, ELIZABETH J. PIETTE, J. S. V., T. R. V., T. S. V., KAREN VAUGHN−KAJMOWICZ, TAMMY VAUGHN−KAJMOWICZ, TERESA WELBORN. (Groth, William) (Entered: 04/21/2014)

Case: 1:14-cv-406 As of: 11/06/2017 01:47 AM EST 9 of 13

04/21/2014 04/21/2014 04/21/2014 04/22/2014 04/30/2014 04/30/2014 04/30/2014 05/01/2014
05/12/2014 05/12/2014 05/15/2014 05/15/2014

30 BRIEF/MEMORANDUM in Support re 29 MOTION for Preliminary Injunction , filed by Plaintiffs CANDACE BATTEN−LEE, PAMELA LEE, MARTHA LEVERETT, RUTH MORRISON, ELIZABETH J. PIETTE, J. S. V., T. R. V., T. S. V., KAREN VAUGHN−KAJMOWICZ, TAMMY VAUGHN−KAJMOWICZ, TERESA WELBORN. (Groth, William) (Entered: 04/21/2014)
31 MOTION To Consolidate Preliminary Injunction Proceedings With Final Trial On The Merits, filed by Plaintiffs CANDACE BATTEN−LEE, PAMELA LEE, MARTHA LEVERETT, RUTH MORRISON, ELIZABETH J. PIETTE, J. S. V., T. R. V., T. S. V., KAREN VAUGHN−KAJMOWICZ, TAMMY VAUGHN−KAJMOWICZ, TERESA WELBORN. (Groth, William) (Entered: 04/21/2014)
33 Minute Entry for telephonic conference held 4/21/2014 before Judge Richard L. Young. (Court Reporter Judy Mason.) (TMD) (Entered: 04/28/2014)
32 MOTION to Seal Document 27 MOTION for Summary Judgment /Exhibits A−1, B−1 and D−1, filed by Plaintiffs CANDACE BATTEN−LEE, PAMELA LEE, MARTHA LEVERETT, RUTH MORRISON, ELIZABETH J. PIETTE, J. S. V., T. R. V., T. S. V., KAREN VAUGHN−KAJMOWICZ, TAMMY VAUGHN−KAJMOWICZ, TERESA WELBORN. (Attachments: # 1 Text of Proposed Order)(Groth, William) (Entered: 04/22/2014)
34 ORDER granting Plaintiffs' 32 Motion to Seal. IT IS HEREBY ORDERED that Exhibits A−1 [Filing No. 27−2], B−1 [Filing No. 27−4], and D−1 [Filing No. 27−10], shall be sealed by the clerk, and counsel for Plaintiffs are hereby ordered to file redacted copies of same for the public record within 7 days. Signed by Magistrate Judge Tim A. Baker on 4/30/2014. (SWM) (Entered: 04/30/2014)
35 STIPULATION CONCERNING BRIEFING SCHEDULE, filed by Defendants BRIAN ABBOTT, CHRIS ATKINS, KEN COCHRAN, STEVE DANIELS, JODI GOLDEN, MIKE PENCE, MICHAEL PINKHAM, KYLE ROSEBROUGH, STEVE RUSSO, BRET SWANSON. (Attachments: # (1) Text of Proposed Order )(Fisher, Thomas) Modified on 5/1/2014 (NMT). (Entered: 04/30/2014)
36 Second MOTION for Extension of Time to May 16, 2014 IN WHICH TO RESPOND TO PLAINTIFFS COMPLAINT, filed by Defendants BRIAN ABBOTT, CHRIS ATKINS, KEN COCHRAN, STEVE DANIELS, JODI GOLDEN, MIKE PENCE, MICHAEL PINKHAM, KYLE ROSEBROUGH, STEVE RUSSO, BRET SWANSON. (Attachments: # (1) Text of Proposed Order )(Fisher, Thomas) Modified on 5/1/2014 (NMT). (Entered: 04/30/2014)
37 Submission of Redacted Exhibits, filed by Plaintiffs CANDACE BATTEN−LEE, PAMELA LEE, MARTHA LEVERETT, RUTH MORRISON, ELIZABETH J. PIETTE, J. S. V., T. R. V., T. S. V., KAREN VAUGHN−KAJMOWICZ, TAMMY VAUGHN−KAJMOWICZ, TERESA WELBORN. (Attachments: # 1 Exhibit A−1 − Application for Beneficiary Designation, # 2 Exhibit B−1 − Application for Beneficiary Designation, # 3 Exhibit D−1 − Application for Retirement Benefits)(Groth, William) (Entered: 05/01/2014)
38 ORDER re Parties' 35 Stipulation Concerning BriefingSchedule (see Order for briefing schedule). Signed by Magistrate Judge Tim A. Baker on 5/12/2014.(SWM) (Entered: 05/12/2014)
39 ORDER granting Defendants' 36 Motion for Extension of Time to File response to Plaintiffs' Complaint to 5/16/2014. Signed by Magistrate Judge Tim A. Baker on 5/12/2014. (SWM) (Entered: 05/12/2014)
40 MOTION for Attorney(s) Robert A. Katz to Appear pro hac vice (No fee paid with this filing), filed by Plaintiffs CANDACE BATTEN−LEE, PAMELA LEE, MARTHA LEVERETT, RUTH MORRISON, ELIZABETH J. PIETTE, J. S. V., T. R. V., T. S. V., KAREN VAUGHN−KAJMOWICZ, TAMMY VAUGHN−KAJMOWICZ, TERESA WELBORN. (Attachments: # 1 Exhibit Certification of Robert A. Katz, # 2 Text of Proposed Order)(Sniderman, Mark) (Entered: 05/15/2014)
41 MOTION for Summary Judgment , filed by Defendants BRIAN ABBOTT, CHRIS ATKINS, KEN COCHRAN, STEVE DANIELS, JODI GOLDEN, MIKE PENCE, MICHAEL PINKHAM, KYLE ROSEBROUGH, STEVE RUSSO, BRET

Case: 1:14-cv-406 As of: 11/06/2017 01:47 AM EST 10 of 13

05/15/2014
05/16/2014 05/30/2014 05/30/2014 06/05/2014
06/05/2014
06/05/2014
06/05/2014 06/11/2014 06/12/2014 06/12/2014 06/12/2014

SWANSON. (Fisher, Thomas) (Entered: 05/15/2014)
42 BRIEF/MEMORANDUM in Support re 41 MOTION for Summary Judgment AND IN OPPOSITION TO PLAINTIFFS MOTIONS FOR PRELIMINARY INJUNCTION AND SUMMARY JUDGMENT, filed by Defendants BRIAN ABBOTT, CHRIS ATKINS, KEN COCHRAN, STEVE DANIELS, JODI GOLDEN, MIKE PENCE, MICHAEL PINKHAM, KYLE ROSEBROUGH, STEVE RUSSO, BRET SWANSON. (Fisher, Thomas) (Entered: 05/15/2014)
43 ANSWER to 1 Complaint FOR DECLARATORY AND INJUNCTIVE RELIEF, filed by BRIAN ABBOTT, CHRIS ATKINS, KEN COCHRAN, STEVE DANIELS, JODI GOLDEN, MIKE PENCE, MICHAEL PINKHAM, KYLE ROSEBROUGH, STEVE RUSSO, BRET SWANSON.(Fisher, Thomas) (Entered: 05/16/2014)
44 NOTICE of Appearance by Kelly R. Eskew on behalf of Plaintiffs CANDACE BATTEN−LEE, PAMELA LEE, MARTHA LEVERETT, RUTH MORRISON, ELIZABETH J. PIETTE, J. S. V., T. R. V., T. S. V., KAREN VAUGHN−KAJMOWICZ, TAMMY VAUGHN−KAJMOWICZ, TERESA WELBORN. (Eskew, Kelly) (Entered: 05/30/2014)
45 RECEIPT #IP041010 for pro hac vice fee in the amount of $30.00, paid by Catherine A. Martin on behalf of Robert A. Katz (Docket No. 40). (DJH) (Entered: 05/30/2014)
46 REPLY in Support of Motion re 27 MOTION for Summary Judgment , 29 MOTION for Preliminary Injunction , 41 MOTION for Summary Judgment and Response to Defendants' Motion for Summary Judgment, filed by Plaintiffs CANDACE BATTEN−LEE, PAMELA LEE, MARTHA LEVERETT, RUTH MORRISON, ELIZABETH J. PIETTE, J. S. V., T. R. V., T. S. V., KAREN VAUGHN−KAJMOWICZ, TAMMY VAUGHN−KAJMOWICZ, TERESA WELBORN. (Attachments: # 1 Exhibit Ex E − Aff of Dr. Fulcher, # 2 Exhibit Ex F − Aff of Dr. Buffie, # 3 Exhibit Ex. G − Aff of Prof. Grossman, # 4 Exhibit Ex H − Publication of "More then Just a Couple", # 5 Exhibit Ex I − 1977 Pension Fund Summary of Benefits)(Horseman, Karen) (Entered: 06/05/2014)
47 MOTION for Leave to File Excess Pages , filed by Plaintiffs CANDACE BATTEN−LEE, PAMELA LEE, MARTHA LEVERETT, RUTH MORRISON, ELIZABETH J. PIETTE, J. S. V., T. R. V., T. S. V., KAREN VAUGHN−KAJMOWICZ, TAMMY VAUGHN−KAJMOWICZ, TERESA WELBORN. (Attachments: # 1 Text of Proposed Order)(Horseman, Karen) (Entered: 06/05/2014)
48 MOTION for Leave to File First Amended Complaint, filed by Plaintiffs CANDACE BATTEN−LEE, PAMELA LEE, MARTHA LEVERETT, RUTH MORRISON, ELIZABETH J. PIETTE, J. S. V., T. R. V., T. S. V., KAREN VAUGHN−KAJMOWICZ, TAMMY VAUGHN−KAJMOWICZ, TERESA WELBORN. (Attachments: # 1 Proposed Amended Complaint, # 2 Text of Proposed Order for Leave to Amend Complaint)(Horseman, Karen) (Entered: 06/05/2014)
49 ORDER granting Motion to Appear pro hac vice 40 for Robert A. Katz on behalf of all Plaintiffs. Copy mailed. Signed by Magistrate Judge Tim A. Baker on 6/5/2014. (ADH) (Entered: 06/06/2014)
50 ORDER granting 47 Motion for Leave to File Excess Pages. Signed by Judge Richard L. Young on 6/11/2014. (TMD) (Entered: 06/11/2014)
51 ORDER granting Plaintiffs' 48 Motion for Leave to File Amended Complaint. Signed by Magistrate Judge Tim A. Baker on 6/12/2014. (SWM) (Entered: 06/12/2014)
52 AMENDED COMPLAINT against All Defendants, filed by All Plaintiffs.(SWM) (Entered: 06/12/2014)
53 Unopposed MOTION for Extension of Time to 06/26/2014 to file reply to 41 MOTION for Summary Judgment , filed by Defendants BRIAN ABBOTT, CHRIS ATKINS, KEN COCHRAN, STEVE DANIELS, JODI GOLDEN, MIKE PENCE, MICHAEL PINKHAM, KYLE ROSEBROUGH, STEVE RUSSO, BRET SWANSON. (Attachments: # 1 Text of Proposed Order Proposed Order)(Fisher, Thomas) (Entered: 06/12/2014)

Case: 1:14-cv-406 As of: 11/06/2017 01:47 AM EST 11 of 13

06/16/2014 06/17/2014 06/17/2014 06/19/2014 06/25/2014
06/25/2014
06/25/2014
06/25/2014 06/26/2014 06/26/2014 06/26/2014 06/26/2014 06/27/2014

54 MOTION for Withdrawal of Appearance by Kelly R. Eskew on behalf of All Plaintiffs (Attachments: # 1 Text of Proposed Order) (Eskew, Kelly) Modified on 6/18/2014 (ADH). (Entered: 06/16/2014)
55 ORDER OF RECUSAL. Clerk is directed to randomly reassign case and notify parties of newly assigned Magistrate Judge. Signed by Magistrate Judge Tim A. Baker on 6/17/2014. (ADH) (Entered: 06/17/2014)
56 NOTICE of Reassignment of Case to Magistrate Judge Mark J. Dinsmore. Magistrate Judge Tim A. Baker no longer assigned to the case. Please include the new case number, 1:14−cv−406−RLY−MJD, on all future filings in this matter. (DJH) (Entered: 06/17/2014)
57 ORDER granting 54 Motion to Withdraw Attorney Appearance. Attorney Kelly R. Eskew withdrawn. Signed by Magistrate Judge Mark J. Dinsmore on 6/19/2014. (ADH) (Entered: 06/19/2014)
58 **STAYED PENDING APPEAL PER 67 USCA ORDER** ORDER granting in part and denying in part Plaintiffs' 27 Motion for Summary Judgment and granting in part and denying in part Defendants' 41 Motion for Summary Judgment. Order also denies as moot Plaintiffs' 29 Motion for Preliminary Injunction, denies as moot Plaintiffs' 31 Motion to Consolidate Preliminary Injunction Proceedings with Final Trial on the Merits and denies as moot Defendants' 53 Motion for Extension of Time. (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)
59 CLOSED JUDGMENT in favor of Plaintiffs and Governor Pence and against Defendants 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. Signed by Judge Richard L. Young on 6/25/2014.(TMD) (Entered: 06/25/2014)
60 NOTICE OF APPEAL as to 58 Entry on Cross−Motions for Summary Judgment and 59 Final Judgment, filed by Defendants BRIAN ABBOTT, CHRIS ATKINS, KEN COCHRAN, STEVE DANIELS, JODI GOLDEN, MICHAEL PINKHAM, KYLE ROSEBROUGH, STEVE RUSSO, BRET SWANSON. (No fee paid with this filing) (Fisher, Thomas) Modified on 6/26/2014 to correctly identify parties included in NOA and to create link to judgment (LBT). (Entered: 06/25/2014)
61 DOCKETING STATEMENT by BRIAN ABBOTT, CHRIS ATKINS, KEN COCHRAN, STEVE DANIELS, JODI GOLDEN, MICHAEL PINKHAM, KYLE ROSEBROUGH, STEVE RUSSO, BRET SWANSON re 60 Notice of Appeal (Fisher, Thomas) Modified on 6/26/2014 to correctly identify filers of document (LBT). (Entered: 06/25/2014)
62 SEVENTH CIRCUIT APPEAL INFORMATION SHEET re 60 Notice of Appeal − Instructions for Attorneys − Parties' Short Record, Instructions, and Designation of Record information attached. Copy mailed to Atty Robert Katz. (JLM) (Entered: 06/26/2014)
63 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 60 Notice of Appeal. − for Court of Appeals Use Only. (JLM) (Entered: 06/26/2014)
64 USCA Case Number 14−2388 for 60 Notice of Appeal filed by MICHAEL PINKHAM, CHRIS ATKINS, BRET SWANSON, BRIAN ABBOTT, KEN COCHRAN, JODI GOLDEN, KYLE ROSEBROUGH, STEVE DANIELS, STEVE RUSSO. (Attachments: # 1 Circuit Rule 3(b) Notice)(JLM) (Entered: 06/26/2014)
65 USCA Appeal Fees received $505.00 receipt number IP041372 re 60 Notice of Appeal filed by MICHAEL PINKHAM, CHRIS ATKINS, BRET SWANSON, BRIAN ABBOTT, KEN COCHRAN, JODI GOLDEN, KYLE ROSEBROUGH, STEVE DANIELS, STEVE RUSSO (USCA #14−2388) (DJH) (Entered: 06/26/2014)
66 Emergency MOTION to Stay Pending Appeal, filed by Defendants BRIAN ABBOTT, CHRIS ATKINS, KEN COCHRAN, STEVE DANIELS, JODI GOLDEN, MIKE PENCE, MICHAEL PINKHAM, KYLE ROSEBROUGH, STEVE RUSSO, BRET

Case: 1:14-cv-406 As of: 11/06/2017 01:47 AM EST 12 of 13

06/27/2014
07/02/2014 07/09/2014 07/09/2014 07/23/2014 07/24/2014 07/25/2014 08/19/2014 09/15/2014

SWANSON. (Fisher, Thomas) (Entered: 06/27/2014)
67 ORDER of USCA as to 60 Notice of Appeal filed by MICHAEL PINKHAM, CHRIS ATKINS, BRET SWANSON, BRIAN ABBOTT, KEN COCHRAN, JODI GOLDEN, KYLE ROSEBROUGH, STEVE DANIELS, STEVE RUSSO (USCA #14−2388) − Upon consideration of the Emergency Motion for Staying 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)
68 ORDER of USCA as to 60 Notice of Appeal filed by MICHAEL PINKHAM, CHRIS ATKINS, BRET SWANSON, BRIAN ABBOTT, KEN COCHRAN, JODI GOLDEN, KYLE ROSEBROUGH, STEVE DANIELS, STEVE RUSSO (USCA #14−2388) − Upon consideration of the Plaintiffs−Appellees Officer Pamela Lee, et al, Emergency Motion to Lift the Court's Stay in Part, filed on 7/1/2014, by counsel for the appellees, it is ORDERED that the motion is DENIED. (LBT) (Entered: 07/02/2014)
69 DESIGNATION of Record on Appeal by BRIAN ABBOTT, CHRIS ATKINS, KEN COCHRAN, STEVE DANIELS, JODI GOLDEN, MIKE PENCE, MICHAEL PINKHAM, KYLE ROSEBROUGH, STEVE RUSSO, BRET SWANSON re 60 Notice of Appeal (Fisher, Thomas) (Entered: 07/09/2014)
70 Unopposed MOTION for Extension of Time to File for Attorneys Fees and Costs, filed by Plaintiffs CANDACE BATTEN−LEE, PAMELA LEE, MARTHA LEVERETT, RUTH MORRISON, ELIZABETH J. PIETTE, J. S. V., T. R. V., T. S. V., KAREN VAUGHN−KAJMOWICZ, TAMMY VAUGHN−KAJMOWICZ, TERESA WELBORN. (Attachments: # 1 Text of Proposed Order)(Sniderman, Mark) (Entered: 07/09/2014)
71 Appeal Remark re 60 Notice of Appeal (USCA #14−2388): 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)
72 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)
73 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)
74 ORDER granting 70 Motion for Extension of Time to File for reasonable attorneys' fees and costs until 95 days after the 7th Circuit issues its mandate in this case or the case is otherwise resolved in the 7th Circuit, or 35 days after any proceedings in this case in the US Supreme Court are resolved, whichever is later. Signed by Magistrate Judge Mark J. Dinsmore on 8/19/2014. **Copy sent to USCA re #14−2388.** (CBU) Modified on 8/20/2014 (JLM). (Entered: 08/19/2014)
75 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)

Case: 1:14-cv-406 As of: 11/06/2017 01:47 AM EST 13 of 13

10/07/2014
10/20/2014 01/05/2015
01/07/2015 01/26/2015
01/28/2015 02/19/2015

76 MANDATE of USCA as to 60 Notice of Appeal filed by MICHAEL PINKHAM, CHRIS ATKINS, BRET SWANSON, BRIAN ABBOTT, KEN COCHRAN, JODI GOLDEN, KYLE ROSEBROUGH, STEVE DANIELS, STEVE RUSSO (USCA #14−2388) − 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)
77 ORDER denying as moot 66 Motion to Stay Pending Appeal. Signed by Judge Richard L. Young on 10/20/2014. (TMD) (Entered: 10/20/2014)
78 MOTION for Extension of Time to 01/26/2015 TO FILE PETITION FOR ATTORNEYS' FEES AND COSTS, filed by Plaintiffs CANDACE BATTEN−LEE, PAMELA LEE, MARTHA LEVERETT, RUTH MORRISON, ELIZABETH J. PIETTE, J. S. V., T. R. V., T. S. V., KAREN VAUGHN−KAJMOWICZ, TAMMY VAUGHN−KAJMOWICZ, TERESA WELBORN. (Attachments: # 1 Text of Proposed Order)(Groth, William) (Entered: 01/05/2015)
79 ORDER granting 78 Plaintiffs' Unopposed Motion to Extend Time. The Plaintiffs shall have up to and including 1/26/2015, to file their petition for attorney's fees and costs in this case. Signed by Magistrate Judge Mark J. Dinsmore on 1/7/2015. (JLM) (Entered: 01/07/2015)
80 Third MOTION for Extension of Time to 02/25/2015 To File for Attorneys' Fees and Costs, filed by Plaintiffs CANDACE BATTEN−LEE, PAMELA LEE, MARTHA LEVERETT, RUTH MORRISON, ELIZABETH J. PIETTE, J. S. V., T. R. V., T. S. V., KAREN VAUGHN−KAJMOWICZ, TAMMY VAUGHN−KAJMOWICZ, TERESA WELBORN. (Attachments: # 1 Text of Proposed Order)(Groth, William) (Entered: 01/26/2015)
81 ORDER granting 80 Motion for Extension of Time. Plaintiffs shall file their petition for reasonable attorneys' fees and costs on, or before, February 25, 2015. Signed by Magistrate Judge Mark J. Dinsmore on 1/28/2015. (MGG) (Entered: 01/28/2015)
82 NOTICE to Court regarding resolution of attorney's fees and costs, filed by Plaintiffs CANDACE BATTEN−LEE, PAMELA LEE, MARTHA LEVERETT, RUTH MORRISON, ELIZABETH J. PIETTE, J. S. V., T. R. V., T. S. V., KAREN VAUGHN−KAJMOWICZ, TAMMY VAUGHN−KAJMOWICZ, TERESA WELBORN (Groth, William) Modified on 2/20/2015 (NRN). (Entered: 02/19/2015)

Case #: 1:14−cv−00406−RLY−MJD

 
 Bogan v. Baskin, 135 S.Ct. 316

135 S.Ct. 316 Supreme Court of the United States
Penny BOGAN, in Her Official Capacity as Boone County Clerk, et al., petitioners, v. Marilyn Rae BASKIN, et al.
No. 14–277. | Oct. 6, 2014.
	   	  

Case below, 766 F.3d 648.
Opinion Petition for writ of certiorari to the United States Court of Appeals for the Seventh Circuit denied.
	  
	  

1

 
 Baskin v. Bogan, 12 F.Supp.3d 1137 (2014)

12 F.Supp.3d 1137 United States District Court,
S.D. 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.; and Amy Sandler and
Nikole Quasney, Plaintiffs, v.
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, in his official capacity as the Commissioner, Indiana State Department of Health; and Greg Zoeller, in his official capacity as Indiana Attorney General,
Defendants.
No. 1:14–cv–00355–RLY–TAB. | Signed April 18, 2014.
Synopsis Background: Lesbian couple filed action challenging constitutionality of Indiana statute banning same-sex marriage. Couple filed motion for temporary restraining order (TRO) requiring the state of Indiana to recognize their out-of-state marriage.
Holdings: The District Court, Richard L. Young, Chief Judge, held that:
[1] couple had constitutional standing, and
[2] couple was entitled to TRO.
Motion granted.
West Codenotes
Validity Called into Doubt West’s A.I.C. 31–11–1–1(b).
Attorneys and Law Firms

*1139 Barbara J. Baird, The Law Office of Barbara J. Baird, Indianapolis, IN, Brent Phillip Ray, Jordan Heinz, Kirkland & Ellis LLP, Camilla B. Taylor, Christopher R. Clark, Lambda Legal Defense and Education Fund, Inc., Chicago, IL, Paul D. Castillo, Lambda Legal Defense and Education Fund, Inc., Dallas, TX, for Plaintiffs.
Robert V. Clutter, Kirtley, Taylor, Sims, Chadd & Minnette, P.C., Lebanon, IN, Elizabeth A. Knight, Valparaiso, IN, Nancy Moore Tiller, Nancy Moore Tiller & Associates, Crown Point, IN, Thomas M. Fisher, Office of the Attorney General, Indianapolis, IN, Darren J. Murphy, Howard & Associates, Noblesville, IN, for Defendants.

ENTRY ON PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER
RICHARD L. YOUNG, Chief Judge.
Plaintiffs, Amy Sandler and Nikole (“Niki”) Quasney, ask this court to grant a temporary restraining order requiring the state of Indiana to recognize their out-of-state marriage. The court held a hearing on April 10, 2014, and issued a bench ruling GRANTING the temporary restraining order, which expires 28 days from that date, on May 8, 2014. Consistent with that ruling, the court issues the following written order.

I. Background Plaintiffs, Niki Quasney and Amy Sandler, have been in a loving and committed relationship for more than thirteen years. (Declaration of Nikole Quasney (“Quasney Dec.”) ¶ 2, Filing No. 32–2). They have two very young children, A.Q.-S. and M.Q.-S. (Id. at ¶ 2). On June 7, 2011, Amy and Niki entered into a civil union in Illinois. (Id. at ¶ 3). Then, on August 29, 2013, they were married in Massachusetts.1 (Id.).

1

Massachusetts allows for same-sex couples to marry.

In late May of 2009, Niki was diagnosed with Stage IV Ovarian cancer. (Id. at ¶ 9). She and Amy immediately flew to Chicago for treatment, and just a couple of days later in June 2009, surgeons removed over *1140 100 tumors throughout Niki’s abdomen, including her liver,
1

Baskin v. Bogan, 12 F.Supp.3d 1137 (2014)

kidneys, diaphragm, and bladder. (Id. at ¶ 11). At that time, the median survival rate for her cancer was five years. (Id. at ¶ 5). Ever since, Niki has been battling her cancer with the most aggressive treatments she can endure while maintaining some quality of life.2 (Id. at ¶ 7). Every three weeks, Niki’s doctor performs a CA–125 test, which is a blood test to check the tumor marker for ovarian cancer. (Supplemental Declaration of Nikole Quasney (“Quasney Supp. Dec.”) ¶ 1; Hearing Exhibit C). Three weeks ago, the test showed Niki’s level was near normal at 37. (Id.). Unfortunately, on April 9, 2014, that level soared to 106. (Id. at ¶ 2). On Wednesday, April 16, 2014, Niki will begin a new chemotherapy treatment. (Id. at ¶ 4).

2

Niki went into remission in July 2010. (Quasney Dec. ¶

13). She had more tumors removed in September of

2011. (Id. at ¶ 18). In May of 2012, Niki again was in

remission. (Id. at ¶ 20). She completed her most recent

treatment of chemotherapy approximately four weeks

ago. (Quasney Supp. Dec. ¶ 4).

Because Niki is fighting a fatal disease and is nearing the five year survival rate, she and Amy requested that the court issue a temporary restraining order and/or preliminary injunction preventing Indiana from enforcing Indiana Code § 31–11–1–1(b) as applied against them and requiring the state, through the Defendants, to recognize Niki as married to Amy on her death certificate.

II. Standard [1] [2] [3] The court has the power to issue a temporary restraining order (“TRO”) under Federal Rule of Civil Procedure 65. The court may grant a TRO if the movant: (1) has some likelihood of succeeding on the merits, (2) has no adequate remedy at law, and (3) will suffer irreparable harm if the order is denied. See Abbott Labs. v. Mead Johnson & Co., 971 F.2d 6, 11 (7th Cir.1992). If these three elements are met, the court will consider any irreparable harm to the non-movant and balance it against the harm to the movant. See id. at 12. The Seventh Circuit evaluates the balance on a sliding scale so that “the more likely it is the plaintiff will succeed on the merits, the less balance of irreparable harm need weigh towards its side.” Kraft Foods Grp. Brands LLC v. Cracker Barrel Old Country Store, Inc., 735 F.3d 735, 740 (7th Cir.2013).

III. Discussion A. Standing for Temporary Restraining Order

[4] [5] Defendants first argued that the Plaintiffs are in actuality seeking a declaratory judgment rather than a TRO. According to Defendants, the court cannot grant a TRO here because the Plaintiffs suffer no cognizable Article III harm that a restraining order can remedy. The court disagrees with Defendants. To satisfy Article III, the injuries alleged may be slight. As the United States Supreme Court said, “[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.” Harris, 927 F.2d at 1406 (finding a cognizable injury when plaintiff “mightily strives to avoid any visible contact” with the Rolling Meadows seal by utilizing alternative travel routes) (quoting United States v. SCRAP, 412 U.S. 669, 689 n. 14, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973)). The Plaintiffs here have shown cognizable injuries that a TRO can remedy because Niki drives across state lines to *1141 receive treatment from a hospital that will recognize her marriage, Niki and Amy have been denied a family fitness membership, and they suffer anxiety, sadness, and stress about the nonrecognition of their marriage and what that means if and when Niki succumbs to her disease. (Quasney Dec. ¶ 24, 25, 26, 30; Quasney Supp. Dec. ¶ 7).
[6] Additionally, Defendants argue that the dignitary harm suffered by Plaintiffs is not cognizable under Article III of the United States Constitution, and therefore an adequate remedy at law need not exist for that harm and it cannot qualify as irreparable. See Harris v. City of Zion, Lake County, Ill., 927 F.2d 1401, 1405 (7th Cir.1991) (“the requirement that the plaintiff allege an ‘injury-in-fact,’ whether economic or noneconomic, excludes simple indignation as a basis for Article III standing.”). The court again disagrees and finds that the deprivation of the dignity of a state sanctioned marriage is a cognizable injury under Article III. See Windsor, 133 S.Ct. at 2694. In Windsor, Justice Kennedy emphasized the dignitary harms suffered as a result of the Defense of Marriage Act (“DOMA”). For example, he noted that “[t]he differentiation demeans the couple, whose moral and sexual choices the Constitution protects.... And it humiliates tens of thousands of children now being raised by same-sex couples.” Id. (citing Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003)). He stressed the fact that the states wished to confer dignity on certain marriages that the federal government, through DOMA, was taking away by not recognizing the marriages. See id. Thus, the court finds that Windsor recognized and remedied a dignitary injury. Finding that a TRO is an appropriate remedy, the court now turns to the criteria for a TRO.
2

Baskin v. Bogan, 12 F.Supp.3d 1137 (2014)
B. Temporary Restraining Order
i. Some Likelihood of Success on the Merits
[7] To satisfy the first requirement, the Plaintiffs’ chance of success must be more than negligible. See Brunswick Corp. v. Jones, 784 F.2d 271, 275 (7th Cir.1986). In support of their position that Indiana Code 31–11–1–1(b) is unconstitutional, Plaintiffs rely on the wave of recent cases finding that similar state statutes and state constitutional amendments violate the Equal Protection Clause and the Due Process Clause. See Tanco v. Haslam, 7 F.Supp.3d 759, No. 3:13–cv–01159, 2014 WL 997525 (M.D.Tenn. Mar. 14, 2014); De Leon v. Perry, 975 F.Supp.2d 632 (W.D.Tex.2014); Lee v. Orr, No. 1:13–cv– 08719, 2014 WL 683680 (N.D.Ill. Feb. 21, 2014); Bostic v. Rainey, 970 F.Supp.2d 456 (E.D.Va.2014); Bourke v. Beshear, 996 F.Supp.2d 542, No. 3:13–cv750–H, 2014 WL 556729 (W.D.Ky. Feb. 12, 2014); Kitchen v. Herbert, 961 F.Supp.2d 1181 (D.Utah 2013); Bishop v. United States ex rel. Holder, 962 F.Supp.2d 1252 (N.D.Okla.2014). In particular, Plaintiffs rely on two cases where temporary relief was granted when one of the spouses was suffering from a fatal disease. See Obergefell v. Kasich, No. 1:13–cv–501, 2013 WL 3814262 (S.D.Ohio Jul. 22, 2103) (granting TRO ordering Ohio to recognize the marriage of a same-sex couple where one spouse was terminally ill); see also Gray v. Orr, 4 F.Supp.3d 984, No. 13C8449, 2013 WL 6355918 (N.D.Ill. Dec. 5, 2013) (granting a TRO to allow samesex couple to marry before the effective date of newly enacted statute authorizing same-sex marriages because one partner was terminally ill). The *1142 court finds these decisions to be particularly persuasive.
Defendants counter that the authority of the states to define marriage can be traced back to this nation’s founding, and that the district court opinions favoring Plaintiffs’ position have misunderstood United States v. Windsor, ––– U.S. ––––, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013). According to Defendants, there is no right to have one’s marriage recognized; rather, recognition is merely a matter of comity that is left to the states. In support, Defendants rely on a case where Indiana did not recognize the marriage between an uncle and niece from Russia; however, the court notes that the parties did not contest that their marriage was void on appeal. See Sclamberg v. Sclamberg, 220 Ind. 209, 41 N.E.2d 801 (1942). Defendants concede that Indiana will recognize marriages between first cousins, even though such a marriage is generally prohibited within the state. Therefore, the court finds that as a general rule, Indiana recognizes valid marriages performed in other states.

[8] [9] The court agrees with Defendants that marriage and domestic relations are generally left to the states. Nevertheless, 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 at 2691 (citing Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (invalidating Virginia’s statute banning marriages based on race)). The Equal Protection Clause requires states to treat people equally under the law; if the state wishes to differentiate between people and make them unequal, then it must have at least a legitimate purpose.
According to Defendants the state of Indiana does not recognize same-sex marriages performed elsewhere because:
it calls into question the State’s own philosophical understanding of the nature of governmentrecognized marriage, the State’s traditional marriage definition being predicated on the idea that we want to attract and then regulate couples that may unintentionally procreate for the sake of the children.
Additionally, “[i]t creates a social norm and relieves burdens on the State that may occur in the event that unwanted children are uncared for.... It’s the idea of ameliorating the consequences of unintended children.” This philosophy on marriage, however, does not distinguish Indiana from the wave of recent cases finding similar statutes to be unconstitutional. See Bishop v. U.S. ex rel. Holder, 962 F.Supp.2d 1252 (N.D.Okla.2014) (finding there is no rational link between excluding samesex 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 v. Snyder, 973 F.Supp.2d 757, 760–61 (E.D.Mich.2014) (noting that prohibiting same-sex marriages “does not stop [gay men and lesbian women] from forming families and raising children”).
The court finds that this cannot be the entire rationale underlying the traditional marriage. Additionally, this philosophy is problematic in that the state of Indiana generally recognizes marriages of individuals who cannot procreate. For example, Indiana recognizes the marriages of opposite-sex couples that occurred in Florida that are well past their procreative years.3 *1143 This philosophy does not apply to them, so under the state’s philosophy,
3

Baskin v. Bogan, 12 F.Supp.3d 1137 (2014)

their marriage should not be recognized here. Further, before recognizing an out-of-state marriage on a death certificate, the state of Indiana does not inquire whether the couple had the ability to procreate unintentionally.

3

On the other hand, the state of Indiana did not

recognize the marriage of an uncle and niece who had

two children together. This marriage had the potential

for unintentional procreation, yet it was a void

marriage. See Sclamberg, 41 N.E.2d at 802.

[10] Therefore, on this record, the court finds there will likely be insufficient evidence of a legitimate state interest to justify the singling out of same-sex married couples for non-recognition. The court thus finds that Plaintiffs have at least some likelihood of success on the merits because “the principal effect” of Indiana’s statute “is to identify a subset of state-sanctioned marriages and make them unequal.” Windsor, 133 S.Ct. at 2694.

irreparable harm stemming from the violation of their constitutional rights of due process and equal protection. As the Seventh Circuit noted, “[t]he existence of a continuing constitutional violation constitutes proof of an irreparable harm.” Preston v. Thompson, 589 F.2d 300, 303 n. 3 (7th Cir.1978); see also Does v. City of Indianapolis, No. 1:06–cv–865–RLY–WTL, 2006 WL 2927598, *11 (S.D.Ind. Oct. 5, 2006) (quoting Cohen v. Coahoma Cnty., Miss., 805 F.Supp. 398, 406 (N.D.Miss.1992) for the proposition that “[i]t has been repeatedly recognized by federal courts at all levels that violation of constitutional rights constitutes irreparable harm as a matter of law.”). A further showing of irreparable harm often is not required when monetary damages are not at stake. See Back v. Carter, 933 F.Supp. 738, 754 (N.D.Ind.1996) (internal quotation and citation omitted). The rule that courts do not require a further showing of irreparable harm “is based on the belief that equal protection rights are so fundamental to our society that any violation of these rules causes irreparable harm.” Id.

ii. Availability of an Adequate Remedy at Law
Defendants argue that adequate remedies at law exist for Plaintiffs. For example, assuming arguendo the state eventually does recognize same-sex marriages, if Niki should pass away prior to the state recognizing their marriage, Amy could receive an amended death certificate. Additionally, Amy and Niki can create a health care directive, which the hospitals must honor, and a last will and testament, which the courts will enforce. The court finds that these are not adequate remedies because they do not address survivor benefits and the dignitary harm Plaintiffs suffer. Additionally, state recognition of their marriage brings financial benefits, health care decision benefits, and death benefits.4

4

These death benefits include an elective share of Niki’s

estate regardless of her will and possibly the ability to

receive Social Security benefits. See Ind.Code 29–1–3–

1 and 20 C.F.R. § 404.345. These are benefits that Niki

and/or Amy cannot receive via contractual agreements,

but only through Indiana’s recognition of their

marriage.

iii. Irreparable Harm if the Order is Denied [11] The court finds Plaintiffs suffer a cognizable and

iv. Balancing of Harms
Finding that the Plaintiffs have met the criteria for a temporary restraining order, the court must balance the irreparable harm that Defendants may suffer against Plaintiffs’ irreparable harm. Defendants *1144 did not allege that they or the state would suffer irreparable harm if the court granted the TRO. Additionally, as this court and others have previously held, the state experiences no harm when it is prevented from enforcing an unconstitutional statute. Therefore, the court finds that the balance weighs in favor of Niki and Amy.
C. Length of the TRO According to Federal Rule of Civil Procedure 65(b)(2), a TRO may last up to 14 days or be extended for another 14 days to a total of 28 days for good cause. The court finds that good cause exists here to extend the expiration of this ruling to twenty-eight days from today. These reasons include judicial economy (the court is adjudicating four other cases challenging Indiana Code § 31–11–1–1) and fairness to those four other cases whose dispositive motions are due on April 21, 2014.
IV. Conclusion For the reasons set forth above, the court GRANTS
4

Baskin v. Bogan, 12 F.Supp.3d 1137 (2014)
Plaintiff’s Motion for a Temporary Restraining Order. (Filing No. 31). Defendants and all those acting in concert are ENJOINED from enforcing Indiana statute § 31–11– 1–1(b) against recognition of Plaintiffs Niki Quasney’s and Amy Sandler’s valid out-of-state marriage, and therefore, the state of Indiana must recognize only their marriage. In addition, should Ms. Quasney pass away in Indiana, the court orders William C. VanNess II, M.D., in his official capacity as the Commissioner of the Indiana State Department of Health and all those acting in concert, to issue a death certificate that records her marital status as “married” and lists Plaintiff Amy Sandler as the
	  

“surviving spouse.” This order shall require that Defendant VanNess issue directives to local health departments, funeral homes, physicians, coroners, medical examiners, and others who may assist with the completion of said death certificate explaining their duties under the order of this court.
This order is set to EXPIRE on May 8, 2014.
	  
	  

5

 
 Baskin v. Bogan, 983 F.Supp.2d 1021 (2014)

983 F.Supp.2d 1021 United States District Court,
S.D. 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, v.
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.
No. 1:14–cv–00355–RLY-TAB. | Signed May 8, 2014.
Synopsis Background: Lesbian couple married out of state filed action challenging constitutionality of Indiana statute banning same-sex marriage. After the District Court, Richard L. Young, Chief Judge, ––– F.Supp.2d ––––, 2014 WL 1568884, granted couple’s motion for temporary restraining order (TRO), couple moved for preliminary injunction.
Holdings: The District Court, Richard L. Young, Chief Judge, held that:
[1] couple had standing to seek preliminary injunction;
[2] couple was likely to succeed on merits;
[3] couple suffered irreparable injury; and
[4] balance of harms and public interests weighed in favor of preliminary injunction.
Motion granted.

West Codenotes
Validity Called into Doubt West’s A.I.C § 31–11–1–1(b).
Attorneys and Law Firms
*1023 Barbara J. Baird, The Law Office of Barbara J. Baird, Indianapolis, IN, Brent Phillip Ray, Jordan Heinz, Kirkland & Ellis LLP, Camilla B. Taylor, Christopher R. Clark, Lambda Legal Defense and Education Fund, Inc., Chicago, IL, Paul D. Castillo, Lambda Legal Defense and Education Fund, Inc., Dallas, TX, for Plaintiffs.
Robert V. Clutter, Kirtley, Taylor, Sims, Chadd & Minnette, P.C., Lebanon, IN, John S. Dull, Law Office of John S. Dull, PC, Merrillville, IN, Nancy Moore Tiller, Nancy Moore Tiller & Associates, Crown Point, IN, Thomas M. Fisher, Office of the Attorney General, Indianapolis, IN, Darren J. Murphy, Howard & Associates, Noblesville, IN, Elizabeth A. Knight, Valparaiso, IN, for Defendants.
ENTRY ON PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION
RICHARD L. YOUNG, Chief Judge.
Plaintiffs, Amy Sandler (“Amy”), Nikole (“Niki”) Quasney, A.Q.-S. and M.Q.-S asked this court to grant them a temporary restraining order (“TRO”) and a preliminary injunction requiring the State of Indiana to recognize the out-of-state marriage of Amy and Niki. (Filing No. 31). The court granted the TRO, which expires on May 8, 2014. (Filing No. 44; Filing *1024 No. 51). On May 2, 2014, the court held a hearing on the pending motions for summary judgment and preliminary injunction. For the reasons set forth below, the court GRANTS Plaintiffs’ motion for a preliminary injunction.
I. Background Niki and Amy have been in a loving and committed relationship for more than thirteen years. (Declaration of Nikole Quasney (“Quasney Dec.”) ¶ 2, Filing No. 32–2). They are the parents to two very young children, Plaintiffs, A.Q.-S. and M.Q.-S. (Id. at ¶ 2). On June 7, 2011, Amy and Niki entered into a civil union in Illinois,
1

Baskin v. Bogan, 983 F.Supp.2d 1021 (2014)
and on August 29, 2013, they were legally married in Massachusetts. (Id. at ¶ 3).
In late May of 2009, Niki was diagnosed with Stage IV Ovarian cancer, which has a probable survival rate of five years. (Id. at ¶ 9). Since June 2009, Niki has endured several rounds of chemotherapy; yet, her cancer has progressed to the point where chemotherapy is no longer a viable option. Niki is receiving no further treatment; her death is imminent.
Niki and Amy joined the other Plaintiffs to this lawsuit to present a facial challenge to Indiana Code 31–11–1–1, titled “Same sex marriages prohibited” and states:
(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.
Because Niki is fighting a fatal disease and is nearing the five year survival rate, she and Amy requested that the court issue a preliminary injunction preventing Indiana from enforcing Indiana Code § 31–11–1–1(b) as applied to them, and requiring the State of Indiana, through the Defendants, to recognize Niki as married to Amy on her death certificate.
II. Preliminary Injunction Standard [1] [2] [3] [4] A preliminary injunction “is an exercise of a very far-reaching power, never to be indulged in except in a case clearly demanding it.” Girl Scouts of Manitou Council, Inc. v. Girl Scouts of U.S.A., Inc., 549 F.3d 1079, 1085–86 (7th Cir.2008) (citations omitted). The court analyzes a motion for a preliminary injunction “in two distinct phases: a threshold phase and a balancing phase.” Id. Under the threshold phase for preliminary injunctive relief, a plaintiff must establish—and has the ultimate burden of proving by a preponderance of the evidence— each of the following elements: (1) some likelihood of success on the merits, (2) absent a preliminary injunction, she will suffer irreparable harm, and (3) traditional legal remedies would be inadequate. Id. at 1086. To satisfy the first requirement, a plaintiff’s chance of success must be more than negligible. See Brunswick Corp. v. Jones, 784 F.2d 271, 275 (7th Cir.1986).
[5] [6] [7] “If the court determines that the moving party has failed to demonstrate any one of these [ ] threshold requirements, it must deny the injunction.” Girl Scouts of Manitou Council, Inc., 549 F.3d at 1086 (citation

omitted). If, on the other hand, the court determines the moving party has satisfied the threshold phase, the court then proceeds to the balancing phase of the analysis. Id. The balancing phase requires the court to balance the harm to the moving party if the injunction is denied against the harm to the nonmoving party if the injunction is granted. Id. In so doing, the court utilizes what is known as the sliding scale approach; “the more likely the [movant] will succeed on the merits, the less the balance of irreparable harms need favor the [movant’s] position.” Id. Additionally, this stage requires the court to consider “any effects that granting or *1025 denying the preliminary injunction would have on nonparties (something courts have termed the ‘public interest’).” Id.
III. Discussion Before reaching the merits, Defendants pose two challenges that the court must initially address. First, they argue the Plaintiffs, Niki and Amy, lack standing to assert preliminary injunctive relief. Second, in light of the Supreme Court’s recent decision in Herbert v. Kitchen, –– – U.S. ––––, 134 S.Ct. 893, 187 L.Ed.2d 699 (2014), they argue preliminary injunctive relief is inappropriate.
A. Standing [8] To have standing a plaintiff “must present an injury that is concrete, particularized, and actual or imminent, fairly traceable to the defendant’s challenged behavior, and likely to be redressed by a favorable ruling.” Davis v. Fed. Election Comm’n, 554 U.S. 724, 733, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008). Defendants argue that the harms alleged by Plaintiffs as arising from Indiana’s nonrecognition statute are not concrete and particularized, nor fairly traceable to them. Thus, according to Defendants, a preliminary injunction cannot favorably address Plaintiffs’ harms.
[9] The Defendants in this case, the Attorney General; the County Clerks from Boone, Porter, Lake, and Hamilton Counties; and the Commissioner of the Indiana Department of Health, are statutorily required to enforce Indiana Code § 31–11–1–1 by not recognizing the marriage. See Ind.Code § 4–6–1–6; see also Ind.Code § 31–11–4–2; see also Ind.Code § 16–37–1–3 and Ind.Code § 16–37–1–3.1. The injury to Plaintiffs resulting from Indiana’s non-recognition statute harms the Plaintiffs in numerous tangible and intangible ways, including causing Niki to drive to Illinois where her marriage will be recognized in order to receive medical care and the dignity of marital status. Thus, a preliminary injunction enjoining Defendants from enforcing the non-recognition
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statute against Plaintiffs will, therefore, redress their claimed injury. Therefore, the court finds that the Plaintiffs have standing to seek a preliminary injunction.
B. Is preliminary injunctive relief appropriate? Citing Herbert v. Kitchen, Defendants contend that Plaintiffs’ demands for preliminary relief are inappropriate under Federal Rule of Civil Procedure 65. Herbert v. Kitchen, ––– U.S. ––––, 134 S.Ct. 893, 187 L.Ed.2d 699 (2014). In that case, the Supreme Court issued a stay of the District of Utah’s permanent injunction requiring officials to issue marriage licenses to same-sex couples and to recognize all same-sex marriages performed in other states. Since that ruling, all decisions by federal district courts have been stayed while the requisite preliminary and permanent injunctions are appealed to the respective circuit courts.
Nevertheless, the court does not interpret the fact that the other federal courts are staying injunctions to mean that preliminary injunctive relief is inappropriate in this case. Nor does the court agree that a stay by the Supreme Court of such a broad injunction conclusively determines that the Plaintiffs here are not entitled to the narrow form of injunctive relief they seek. Additionally, despite these stays, no court has found that preliminary injunctive relief is inappropriate simply because a stay may be issued. Therefore, the court finds that preliminary injunctive relief is still appropriate in this matter and proceeds to that analysis.
*1026 C. Is there a likelihood of success on the merits? Plaintiffs argue that Indiana’s statute prohibiting the recognition of same-sex marriages and in fact, voiding such marriages, violates the Fourteenth Amendments Due Process Clause and Equal Protection Clause.
1. Equal Protection Clause
[10] Plaintiffs argue that Indiana’s non-recognition statute, codified at Indiana Code § 31–11–1–1(b), which provides that their state-sanctioned out-of-state marriage will not be recognized in Indiana and is indeed, void in Indiana, deprives them of equal protection. The Equal Protection Clause commands that no state shall deny to any person within its jurisdiction the equal protection of the laws. U.S. CONST. amend. XIV, § 1.

The theory underlying Plaintiffs’ claim is the notion that Indiana denies same-sex couples the same equal rights, responsibilities and benefits that heterosexual couples receive through “traditional marriage” to Defendants, the State’s interest in traditional marriage is to encourage heterosexual couples to stay together for the sake of any unintended children that their sexual relationship may produce, and to raise those children in a household with both male and female role models. The State views heterosexual couples who, for whatever reason, are not capable of producing children, to further the state’s interest in being good male-female role models.
In the wake of the Supreme Court’s decision in United States v. Windsor, ––– U.S. ––––, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013), district courts from around the country have rejected the idea that a state’s nonrecognition statute bears a rational relation to the state’s interest in traditional marriage as a means to foster responsible procreation and rear those children in a stable male-female household. See Tanco v. Haslam, ––– F.Supp.2d at ––––, 2014 WL 997525 at *6 (M.D.Tenn. March 14, 2014); see also Bishop v. U.S. ex rel. Holder, 962 F.Supp.2d 1252 (N.D.Okla.2014) (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 v. Snyder, 973 F.Supp.2d 757, 771 (E.D.Mich.2014) (noting that prohibiting same-sex marriages “does not stop [gay men and lesbian women] from forming families and raising children”). Indeed, as the court found in its prior Entry, with the wave of persuasive cases supporting Plaintiffs’ position, there is a reasonable likelihood that the Plaintiffs will prevail on the merits, even under the highly-deferential rational basis standard of review. See Henry, ––– F.Supp.2d at –––– – – –––, 2014 WL 1418395 at **1–2 (noting that since the Supreme Court’s ruling in Windsor, all federal district courts have declared unconstitutional and enjoined similar bans); see also Tanco, ––– F.Supp.2d at ––––, 2014 WL 997525 at *6 (“in light of the rising tide of persuasive post-Windsor federal case law, it is no leap to conclude that the plaintiffs here are likely to succeed in their challenge.”) The reasons advanced by the State in support of Indiana’s non-recognition statute do not distinguish this case from the district court cases cited above.
The court is not persuaded that, at this stage, Indiana’s anti-recognition law will suffer a different fate than those around the country. Thus, the Plaintiffs have shown that they have a reasonable likelihood of success on the merits of their equal protection challenge, even under a rational basis standard of review. Therefore, the court at this stage
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does not need *1027 to determine whether sexual orientation discrimination merits a higher standard of constitutional review.

embodied in these statutes, ... is surely to deprive all of the State’s citizens of liberty without due process of law.”) Therefore, the court finds that Plaintiffs have shown some likelihood of success on this claim.

2. Due Process Clause
[11] Plaintiffs assert that they have a due process right to not be deprived of one’s already-existing legal marriage and its attendant benefits and protections. See Obergefell v. Wymyslo, 962 F.Supp.2d 968, 978 (S.D.Ohio 2013) (finding that non-recognition invokes “the right not to be deprived of one’s already-existing legal marriage and its attendant benefits and protections.”); see also Henry v. Himes, No. 1:14–cv–129, –––F.Supp.2d ––––, ––––, 2014 WL 1418395, *9 (S.D.Ohio Apr. 14, 2014) (applying intermediate scrutiny where Ohio is “intruding into fact erasing” the marriage relationship); see also De Leon v. Perry, 975 F.Supp.2d 632, 662 (W.D.Tex.2014) (applying rational basis review and finding “that by declaring lawful same-sex marriages void and denying married couples the rights, responsibilities, and benefits of marriage, Texas denies same-sex couples who have been married in other states their due process”).
Defendants counter that there is no due process right to have one’s marriage recognized. According to Defendants, recognition of marriages from other states is only a matter of comity, not a matter of right. See e.g., Sclamberg v. Sclamberg, 220 Ind. 209, 41 N.E.2d 801 (1942) (recognizing parties’ concession that their marriage, performed in Russia, was void under Indiana law because they were uncle and niece). Defendants again stress that Windsor is a case merely about federalism and did not create a right under the Due Process Clause to have one’s marriage recognized.
The court found in its prior ruling that as a general rule, Indiana recognizes those marriages performed out of state. Bolkovac v. State, 229 Ind. 294, 98 N.E.2d 250, 254 (1951) (“[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. See Mason v. Mason, 775 N.E.2d 706, 709 (Ind.Ct.App.2002). Indiana’s non-recognition of Plaintiffs’ marriage is a departure from the traditional rule in Indiana. Furthermore, the court notes that by declaring these marriages void, the State of Indiana may be depriving Plaintiffs of their liberty without due process of law. See e.g. Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (“to deny this fundamental freedom on so unsupportable a basis as the racial classification

D. Are any injuries to Plaintiffs irreparable? [12] “Irreparable harm is harm which cannot be repaired, retrieved, put down again, atoned for.... [T]he injury must be of a particular nature, so that compensation in money cannot atone for it.” Graham v. Med. Mut. of Ohio, 130 F.3d 293, 296 (7th Cir.1997) (internal quotation and citation omitted). Defendants first argue that there is not irreparable harm here, because Plaintiffs have endured these injuries for a substantial period of time. See Celebration Int’l, Inc. v. Chosun Int’l, Inc., 234 F.Supp.2d 905, 920 (S.D.Ind.2002) (Though not dispositive, “tardiness weighs against a plaintiff’s claim of irreparable harm....”). The court does not find that the requested relief is tardy for two reasons: (1) there has been a recent, substantial change in the law, and (2) in June *1028 2014, Niki will have reached the average survival rate for her disease.
[13] Defendants challenge the Plaintiffs’ claim and this court’s prior finding that the constitutional injury alleged herein is sufficient evidence of irreparable harm. In support, Defendants rely on cases decided in other circuits. These cases are not binding on this court, but merely persuasive. After a more thorough review of the cases in the Seventh Circuit, the court reaffirms its conclusion that a constitutional violation, like the one alleged here, is indeed irreparable harm for purposes of preliminary injunctive relief. See Preston v. Thompson, 589 F.2d 300, 303 n. 3 (7th Cir.1978) ( “[t]he existence of a continuing constitutional violation constitutes proof of an irreparable harm.”); see Does v. City of Indianapolis, No. 1:06–cv–865–RLY–WTL, 2006 WL 2927598, *11 (S.D.Ind. Oct. 5, 2006) (quoting Cohen v. Coahoma Cnty., Miss., 805 F.Supp. 398, 406 (N.D.Miss.1992) for the proposition that “[i]t has been repeatedly recognized by federal courts at all levels that violation of constitutional rights constitutes irreparable harm as a matter of law.”); see also Back v. Carter, 933 F.Supp. 738, 754 (N.D.Ind.1996) (“When violations of constitutional rights are alleged, further showing of irreparable injury may not be required if what is at stake is not monetary damages. This rule is based on the belief that equal protection rights are so fundamental to our society that any violation of those rights causes irreparable harm.”); see also Ezell v. City of Chicago, 651 F.3d 684 (7th Cir.2011) (finding irreparable harm when Plaintiffs’ Second Amendment rights were likely violated); see also Hodgkins v. Peterson, No. 1:04–cv–
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569–JDT–TAB, 2004 WL 1854194, *5 (S.D.Ind. Jul. 23, 2004) (granting a preliminary injunction enjoining enforcement of Indianapolis’ curfew law as it likely violated the parents’ due process rights and finding that “when an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary”.)
Even if a further showing of irreparable harm is required, the court finds that Plaintiffs have met this burden. Niki suffers irreparable harm as she drives to Illinois to receive treatment at a hospital where her marriage will be recognized. In addition, Niki may pass away without enjoying the dignity that official marriage status confers. See Obergefell v. Kasich, No. 1:13–cv–501, 2013 WL 3814262, *7 (S.D.Ohio Jul. 22, 2013) (“Dying with an incorrect death certificate that prohibits Mr. Arthur from being buried with dignity constitutes irreparable harm. Furthermore, Mr. Arthur’s harm is irreparable because his injury is present now, while he is alive. A later decision allowing an amendment to the death certificate cannot remediate the harm to Mr. Arthur, as he will have passed away.”); see also Gray v. Orr, –––F.Supp.2d ––––, 2013 WL 6355918 (N.D.Ill.Dec. 5, 2013) (“Equally, if not more, compelling is Plaintiffs’ argument that without temporary relief, they will also be deprived of enjoying less tangible but nonetheless significant personal and emotional benefits that the dignity of official marriage status confers.”). These are concrete, tangible injuries that are fairly traceable to Defendants and can be remedied by a preliminary injunction.

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, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967)). The State does not have a valid interest in upholding and applying a law that violates these constitutional guarantees. See Joelner v. Vill. of Washington Park, 378 F.3d 613, 620 (7th Cir.2004). Although the court recognizes the State’s concern that injunctions of this sort will cause confusion with the administration of Indiana’s marriage laws and to the public in general, that concern does not apply here.1 The court is faced with one injunction affecting one couple in a State with a population of over 6.5 million people. This will not disrupt the public understanding of Indiana’s marriage laws.

1

This argument had more strength when all of the

Plaintiffs in the present lawsuit were seeking

preliminary injunctive relief, because they (as opposed

to Niki and Amy) were never married, and challenged

the constitutionality of Indiana’s traditional marriage

law. The motion for preliminary injunctive relief from

the unmarried Plaintiffs (Filing No. 35) is

WITHDRAWN; therefore, the court does not see the

potential of creating great confusion from the court’s

grant of the present motion which affects only one

couple. Should this injunction be reversed or a

permanent injunction not issued at a later time, only the

parties to this case may suffer from confusion. The

court has faith that their respective attorneys can

explain any decisions and effects from those decisions

to them.

E. Balance of Harms and Public Interest [14] Having satisfied the threshold phase of a preliminary injunction, the court now turns to the balancing phase. Plaintiffs assert that Defendants have not suffered and will not suffer irreparable harm from this preliminary injunction, and that the public interest is served by a *1029 preliminary injunction because there is no interest in upholding unconstitutional laws. Defendants counter that while they can point to no specific instances of harm or confusion since the court granted the TRO three weeks ago, the State is harmed in the abstract by not being able to enforce this law uniformly and against Plaintiffs. Defendants argue that the public interest weighs in their favor because (1) the State has a compelling interest in defining marriage and administering its own marriage laws, and (2) the continuity of Indiana’s marriage laws avoids potential confusion over a series of injunctions.
[15] 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

IV. Conclusion The court finds that the Plaintiffs, Amy, Niki, A.Q–S., and M.Q.-S., have satisfied their burden for a preliminary injunction. They have shown a reasonable likelihood of success on the merits, irreparable harm with no adequate remedy at law, that the public interest is in favor of the relief, and the balance of harm weighs in their favor. Therefore, the court GRANTS Plaintiffs’ motion for a preliminary injunction (Filing No. 31).
Defendants and all those acting in concert are ENJOINED from enforcing Indiana statute § 31–11–1– 1(b) against recognition of Plaintiffs’, Niki Quasney’s and Amy Sandler’s, valid out-of-state marriage; the State of Indiana must recognize their marriage. In addition, should Niki pass away in Indiana, the court orders William C. VanNess II, M.D., in his official capacity as the Commissioner of the Indiana State Department of Health and all those acting in concert, to issue a death certificate that records her marital status as “married” and lists
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Plaintiff Amy Sandler as the “surviving spouse.” This order shall require that Defendant VanNess issue directives to local health departments, funeral homes, physicians, coroners, medical examiners, and others who may assist with the completion of said death certificate explaining their duties under the order of this court. This preliminary injunction will remain in force until the court *1030 renders judgment on the merits of the Plaintiffs’ claims.
In conclusion, the court recognizes that the issues with which it is confronted are highly contentious and provoke strong emotions both in favor and against same-sex
	   	  

marriages. The court’s ruling today is not a final resolution of the merits of the case—it is a preliminary look, or in other words, a best guess by the court as to what the outcome will be. Currently, all federal district court cases decided post-Windsor indicate that Plaintiffs are likely to prevail. Nevertheless, the strength or weakness of Plaintiffs’ case at the time of final dissolution will inevitably be impacted as more courts are presented with this issue.
	  
	   	  

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