Case 1:14-cv-00355-TWP-MJD Document 1 Filed 03/10/14 Page 1 of 25 PageID #: 1

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA

MARILYN RAE BASKIN and ESTHER FULLER; BONNIE EVERLY and LINDA JUDKINS; DAWN LYNN CARVER and PAMELA RUTH ELEASE EANES,
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; GREG ZOELLER, in his official capacity as INDIANA ATTORNEY GENERAL,
Defendants.

) ) ) ) ) )
~ I : t 4 -cr- 035 5 TWP -MJD
) Civil Action No. _ _ _ _ __ ) ) ) ) ) ) ) ) ) )

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Plaintiffs Marilyn Rae Baskin and Esther Fuller, Bonnie Everly and Linda Judkins, and

Dawn Lynn Carver and Pamela Ruth Elease Eanes, by and through their attorneys, file this

Complaint against Defendants Boone County Clerk Penny Bogan, Porter County Clerk Karen M.

Martin, Lake County Clerk Michael A. Brown, and Indiana Attorney General Greg Zoeller, and

allege as follows:

INTRODUCTION

1. Marilyn Rae Baskin ("Rae") and Esther Fuller; Bonnie Everly and Linda ("Lyn")

Judkins; and Dawn Lynn Carver and Pamela ("Pam") Ruth Elease Eanes (collectively,

"Plaintiffs") are three loving and committed lesbian couples who reside in Indiana. They bring

this action to challenge Defendants' discriminatory denial of the freedom to marry in the State of

Indiana ("the State") solely because the Plaintiff couples are of the same sex. Plaintiffs seek

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declaratory and injunctive relief for the violation of their guarantees of liberty and equal protection under the Fourteenth Amendment to the United States Constitution as a result of Indiana statutes that expressly deny same-sex couples-including Plaintiffs-the freedom to marry. See I.C. § 31-11-1-1 (hereinafter the "marriage ban" or "the ban").
2. Plaintiffs seek the freedom to marry the one unique and irreplaceable person each loves, and thereby to assume the responsibilities and obtain the myriad protections, obligations, and benefits conferred upon married couples under state and federal law.
3. The right to marry the person of one's choice and to direct the course of one's life in this intimate realm without undue government interference is one of the fundamental liberty interests protected for all by the Due Process Clause of the United States Constitution. The State's exclusion of Plaintiffs and other same-sex couples from marriage violates their fundamental right to marry.
4. The State also has deprived Plaintiffs of their guarantee of equality under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution by denying Plaintiff couples-as well as other lesbian and gay Indiana residents-the right to marry the person of their choice based solely on their sexual orientation and sex.
5. Marriage plays a unique role in society as the universally recognized and celebrated hallmark of a couple's commitment to build family life together. It confers upon couples a dignity and status of immense import. Through the marriage ban and through Defendants' enforcement of the ban, the State sends a message that it views lesbians, gay men, and their children as second-class citizens who are undeserving of the legal sanction, respect, protections, and support that different-sex couples and their children receive automatically through marriage.
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6. The marriage ban inflicts serious and irreparable harms upon Plaintiffs and other same-sex couples and their children across the State. The ban excludes them from the security and support available to married couples and their children, and from the myriad legal protections available to spouses and their children under state and federal law.
7. The marriage ban penalizes Plaintiffs' self-detennination in the most intimate sphere of their lives. The Supreme Court has stated that marriage is the most important relation in life, as well as an expression of emotional support and public commitment, and a far-reaching legal acknowledgement of the intimate relationship between two people. The marriage ban deprives Plaintiffs and other same-sex couples of dignity, and humiliates children of same-sex couples by branding their families as inferior and unworthy of the legitimacy, recognition, and respect accorded to other families.
8. The freedom to marry is one of the vital personal rights essential to the orderly pursuit of happiness by free men and women. Plaintiffs seek equal access to the freedom to marry for same-sex couples as the only means to secure their rights to due process and equal protection of the law, and to eliminate the myriad serious harms inflicted on Plaintiffs by the marriage ban and Defendants' enforcement of it.
JURISDICTION AND VENUE 9. Plaintiffs bring this action under 42 U.S.C. §§ 1983 and 1988 to redress the deprivation under color of state law of rights secured by the United States Constitution. 10. This Court has original jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 1343 because the matters in controversy arise under the Constitution and laws of the United States.
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11. This Court has the authority to enter a declaratory judgment and to provide preliminary and permanent injunctive relief pursuant to Rules 57 and 65 of the Federal Rules of Civil Procedure and 28 U.S.C. §§ 2201 and 2202.
12. This Court has personal jurisdiction over Defendants because they are domiciled in the State and/or have otherwise made and established contacts with the State sufficient to permit the exercise of personal jurisdiction over them.
13. Venue is proper in this district under 28 U.S.C. § 1391(b) because all Defendants reside within the State of Indiana, Defendant Boone County Clerk Penny Bogan and Defendant Greg Zoeller reside and have offices within the district, and/or because a substantial part of the events that gave rise to Plaintiffs Rae Baskin and Esther Fuller's claims occurred, and will occur, in this district.
PARTIES A. Plaintiffs Rae Baskin and Esther Fuller 14. Rae Baskin (age sixty) and Esther Fuller (age seventy-eight) are a lesbian couple living in Whitestown, Indiana. Rae and Esther have been in a committed relationship for nearly twenty-four years. Rae and Esther would marry in Indiana but for the marriage ban. 15. Esther was born in Indianapolis, Indiana and has lived in Indiana her whole life, except for a year attending college in Missouri. Rae has been a resident of Indiana for twentyfour years. Esther holds a degree from Purdue University Krannert School of Management and worked as a pharmacist but is currently retired. Rae graduated from Syracuse University in 1975, where she majored in Poverty & Urban Affairs, and New York Law School in 1978. After graduating from law school, Rae owned her own company for twenty years.
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16. The marriage ban frustrates Rae and Esther's dream of being able to marry. Rae wishes to marry Esther because absent marriage, their relationship is viewed as having less dignity and legitimacy by the state and in the eyes of others. Esther wants to ensure that Rae is protected and secure, even if Esther should pass away, and that Rae receives spousal protections including social security benefits for surviving spouses. Esther had breast cancer in 2008 and broke her hip in 2009. Regarding Esther, Rae said "She's the world's biggest mush, she loves me unconditionally, and ... I can't imagine life without her." Bonnie Everly and Lyn Judkins
17. Bonnie Everly (age fifty-six) and Lyn Judkins (age fifty-seven) are a lesbian couple living in Chesterton, Indiana. Bonnie and Lyn have been in a loving committed relationship for more than thirteen years. Bonnie and Lyn would marry in Indiana but for the marriage ban.
18. Bonnie was born in Gary, Indiana, and raised in Michigan City, Indiana. Bonnie and Linda are both divorced from prior marriages they entered into long ago before they were able to acknowledge their sexual orientation to themselves or others. Bonnie and Lyn each have a child, and they live with Bonnie's son, David, age twenty-one. David is supportive of their relationship. Bonnie was employed at a factory where she operated machines and later became an independent driver for the news dispatch in Michigan City, Indiana. Lyn was a secretary and a school bus driver. In 2002, Bonnie and Lyn were struck by a drunk driver and both suffer from mobility related disabilities.
19. The marriage ban frustrates Bonnie's and Lyn's dreams of being able to marry. Unable to marry in Indiana, in April 2002, Bonnie and Lyn held a private religious ceremony on a beach in Michigan City. Lyn describes Bonnie as her "rock and
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security." "[Bonnie] keeps me laughing and she is the reason I get up in the morning. To be able to be legally wed to her would be a dream come true. I would do anything for Bonnie." Bonnie describes Lyn as "a breath of fresh air." "[Lyn] is what keeps me going. I want to make her my wife because I've never had that feeling for anyone else. I want to make my life complete by putting a ring on her finger knowing it will be there forever." Dawn Carver and Pam Eanes
20. Dawn Carver (age forty-one) and Pam Eanes (age fifty) are a lesbian couple living in Munster, Indiana. They have been in a loving committed relationship for seventeen years. Dawn and Pam would marry in Indiana but for the marriage ban.
21. Dawn was born in Griffith, Indiana and has lived in Indiana most of her life. Dawn is a patrol officer for the Oak Park Police Department and has been working there for ten years. Pam is a Captain in the Calumet City Fire Department, and has worked there for twentysix years. Pam and Dawn are active in their local community. Pam has two children from prior relationships, and both children view both Pam and Dawn as their mothers. The children are supportive of their relationship.
22. The marriage ban frustrates Pam and Dawn's dream of being able to marry. Pam and Dawn have an Illinois Civil Union. But this civil union is not recognized in Indiana. Because Indiana's marriage ban has prevented them from marrying, they are not fully protected in the event that either of them is seriously injured from the inherent dangers of their work.
23. Pam and Dawn want to express the love and commitment to each other that only marriage can convey. They want to grow old with one another; they mean everything to each other. Pam states, "Dawn is everything to me, she's my world, she's my best friend, she's my
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partner, she's my confidante, she's my everything. My life is so much better because I have Dawn in it, I really look forward to going into old age together."
B. Defendants 24. DEFENDANT PENNY BOGAN is sued in her official capacity as the Boone County Clerk. Bogan's duties include accepting marriage applications, issuing marriage licenses, and maintaining records relating to marriage licenses. Bogan must ensure compliance through all of these functions with relevant Indiana laws, including those that exclude same-sex couples from marriage, and forbid the filing of records relating to marriages of same-sex couples that take place in other states. Bogan 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. 25. DEFENDANT KAREN M. MARTIN is sued in her official capacity as the Porter County Clerk. Martin's duties include accepting marriage applications, issuing marriage licenses, and maintaining records relating to marriage licenses. Martin must ensure compliance through all of these functions with relevant Indiana laws, including those that exclude same-sex couples from marriage, and forbid the filing of records relating to marriages of same-sex couples that take place in other states. Martin 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. 26. DEFENDANT MICHAEL A. BROWN is sued in his official capacity as the Lake County Clerk. Brown's duties include accepting marriage applications, issuing marriage licenses, and maintaining records relating to marriage licenses. Brown must ensure compliance through all of these functions with relevant Indiana laws, including those that exclude same-sex couples from marriage, and forbid the filing of records relating to marriages of same-sex couples that take place in other states. Brown 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. Collectively,
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DEFENDANTS BOGAN, MARTIN, and BROWN are referred herein as the DEFENDANT CLERKS.
27. DEFENDANT GREG ZOELLER is sued in his official capacity as the ATTORNEY GENERAL OF INDIANA. Zoeller 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. In his capacity as Attorney General, Zoeller has the authority to enforce the statutes of the State of Indiana, including its provisions related to the marriage ban, and has the duty to defend the constitutionality of the enactments of the Indiana Legislature.
28. All of the above 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.
STATEMENT OF FACTS A. The Plaintiff Couples Are Banned from Marrying Solely Because They Are
of the Same Sex. 29. But for the fact that they are of the same sex, each Plaintiff couple is legally qualified to marry under the laws of Indiana and wishes to marry in the State. Each Plaintiff is over the age of eighteen, and no Plaintiff is precluded from marriage as a result of having another spouse or being closely related to her life partner. 30. Each Plaintiff couple is ready and willing to undertake all steps required to obtain a marriage license from the County Clerk of their respective counties. 31. Because of Indiana's statutory prohibition on marriage for same-sex couples, the DEFENDANT CLERKS are required to refuse to issue a marriage licenses to same-sex couples. See I.C. § 31-11-1-1(a) ("Only a female may marry a male. Only a male may marry a female.");
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§ 31-11-4-12 ("If it appears that two (2) individuals do not have a right to a marriage license, the clerk of the circuit court shall refuse to issue the license."). Thus, DEFENDANT CLERKS are statutorily required to refuse to issue a marriage license to Plaintiffs and all other same-sex couples.
B. Indiana's Marriage Ban Singles Out Same-Sex Couples and Excludes Them from Marriage.
32. Indiana has enacted a statute that excludes same-sex couples from marriage. See I.C. §§ 31-11-1-1. This statute cannot be explained by reference to legitimate public policies that could justify the disadvantages the marriage bans impose on same-sex couples who wish to marry. Rather, the history of its enactment and its own text demonstrates that interference with the equal dignity of same-sex couples was more than a mere side effect of this enactment-it was its essence.
C. Plaintiffs Are Injured by the Marriage Ban. 33. Barring same-sex couples from marriage disqualifies them from critically important rights and responsibilities under state law that different-sex couples rely upon to secure their commitment to each other and to safeguard their families. By way of example only, same-sex couples are denied: a. The benefit of the presumption that both spouses are parents to a child born
during the marriage, and the ability of a couple to confer legitimacy on their children by marrying; b. Family health insurance coverage, including spousal health benefits, retirement benefits, and surviving spouse benefits for public employees; c. Family leave for an employee to care for a spouse;
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d. The ability to safeguard family resources under an array of laws that protect spousal finances;
e. The ability to make caretaking decisions for one another in times of death and serious illness, including the priority to make medical decisions for an incapacitated spouse, the automatic right to make burial decisions, and other decisions concerning disposition and handling of remains of deceased spouses.
f. The right to inheritance under the laws of intestacy and the right of a surviving spouse to an elective share;
g. Benefits for spouses and dependent children of members of the military and veterans;
h. In the event that a couple separates, access to an orderly dissolution process for terminating the relationship, assuring an equitable division of the couple's assets and debts, and adjudication of issues relating to custody, visitation, and support with respect to any children the couple may have.
34. The marriage ban not only denies Plaintiffs and other same-sex couples and their children access to protections, benefits, rights, and responsibilities afforded to married persons and their children under state law, it also denies them eligibility for a host of federal rights and responsibilities that span the entire United States Code and federal regulations. Unmarried couples are denied recognition for virtually all purposes throughout the more than 1,000 statutes and numerous federal regulations relating to marriage-including laws that pertain to Social Security benefits, housing, taxes, criminal sanctions, copyrights, and veterans' benefits. Couples validly married in another jurisdiction and living in Indiana may qualify for some federal benefits and protections, but the language of certain statutes and regulations, such as veterans'
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spousal benefits and Social Security survivor benefits, references couples married under the law of their state of residence or domicile. Many of these deprivations drain family economic resources, causing financial harm not only to same-sex couples but to their children as well.
35. In addition to causing the tangible harms listed above, Plaintiffs are denied the unique social recognition that marriage conveys. Without access to the familiar language and legal label of marriage, Plaintiffs are unable instantly or adequately to communicate to others the depth and permanence of their commitment or to obtain respect for that commitment as others do simply by invoking their married status.
36. Although the Plaintiff couples are in committed relationships, they and other same-sex couples are denied the stabilizing effects of marriage, which help keep couples together during times of crisis or conflict.
37. The substantive and dignitary inequities imposed on committed same-sex couples include particular harms for same-sex couples' children, who are equally deserving of the stability, permanence, and legitimacy that children of different-sex spouses enjoy. The marriage ban denies children of same-sex couples the dignity, legitimacy, rights, benefits, support, security, and obligations conferred on children whose parents are married. Children of same-sex couples must combat the common assumption, reinforced by Indiana law, that as members of a family headed by an unmarried couple, their bonds are impermanent, insubstantial, and unworthy of equal dignity and legitimacy because the couple has not made a marital commitment and taken on the obligations of marriage. Civil marriage affords official sanctuary to the family unit, offering parents and children a familiar and public means of demonstrating to third parties a legal basis for the parent-child relationship. By denying same-sex couples access to marriage, the State reinforces the view, held by some, that the family bonds that tie same-sex parents and their
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children are less consequential, enduring, and meaningful than those of different-sex parents and their children. Same-sex parents raising children in Indiana cannot invoke their status as married in order to communicate to their own children and others the depth and permanence of their commitment to each other in terms that society, and even young children, readily understand. Consequently, children of same-sex couples are left to grow up with the message that their parents and families are inferior to others and that they and their parents do not deserve the same societal recognition and respect.
38. Because same-sex parents and their children thus are deprived of the family security that inheres in a ready and familiar method of communicating to others the significance and permanence of their familial relationships, they must live with the vulnerability and stress inflicted by the ever-present possibility that others may question their familial relationships-in social, educational, and medical settings and in moments of crisis-in a way that spouses and their children can avoid by simple reference to being married.
39. Children of same-sex couples are less legally secure and economically situated than children whose parents are able to marry, including because of expenses incurred in attempting to create legal protections that approximate some of those that are automatic through marriage, protections that are far inferior to the legal protections afforded through marriage, and because their families are denied the strengthening effect that marriage can provide to their parents' relationships.
40. Children from a young age understand that marriage signifies an enduring family unit and, likewise, understand when the State has deemed a class of families as less worthy than other families, undeserving of marriage, and not entitled to the same societal recognition and support as other families. The State has no adequate interest to justify marking the children of
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same-sex couples with a badge of inferiority that invites disrespect in school, on the playground, and in every other sphere of their lives.
41. The government is a powerful teacher of discrimination to others. By decreeing that the relationships of same-sex couples must be ignored in Indiana and enforcing that policy, the State and Defendants inform all persons with whom same-sex couples interact, including those couples' own children, that their relationships are less worthy than others. Bearing the imprimatur of the government, the State's marriage ban, which relegates same-sex couples and their children to a lesser status, encourages others to follow the government's example in discriminating against them.
42. The State's marriage ban, and Defendants' enforcement of it, causes many private entities such as banks, insurers, and even health clubs to define "family" for purposes of an array of benefits and protections in ways that exclude same-sex couples and their children from important safety nets, such as private employer-provided health insurance for family members. The State also encourages disrespect of committed same-sex couples and their children, including Plaintiffs, by others in workplaces, schools, businesses, and other major arenas of life in ways that would be less likely to occur and more readily corrected if marriage were available to same-sex couples.
D. The Marriage Ban Is Not Even Rationally Related to a Legitimate Government Purpose, Let Alone Substantially Related to an Important Government Purpose or Narrowly Tailored to a Compelling Governmental Purpose.
43. No legitimate-let alone important or compelling-interest exists to exclude same-sex couples from marriage. An individual's capacity to establish a loving and enduring relationship does not depend upon sexual orientation or his or her sex in relation to his or her committed life partner, nor is there any legitimate interest in preventing same-sex couples and
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their children from belonging to families headed by a married couple or in denying them the spousal protections marriage provides.
44. Neither history nor tradition can justify the marriage ban. Marriage has remained a vital and enduring institution despite undergoing significant changes over time to meet changing social and ethical needs, including by the elimination of many former requirements of marriage that we now recognize as discriminatory or otherwise impermissible-such as racebased entry requirements and gendered restrictions that historically were considered integral aspects of marriage. Indiana is not confined to historic notions of equality, and no excuse for the State's discriminatory restriction can be found in the pedigree of such discrimination.
45. The Supreme Court has made clear that the law cannot, directly or indirectly, give effect to private biases, and expressly rejected moral disapproval of lesbian and gay relationships as a legitimate justification for a law.
46. Excluding same-sex couples from marriage does nothing to protect or enhance the rights of different-sex couples. Different-sex couples will continue to enjoy the same rights and status conferred by marriage regardless of whether same-sex couples may marry.
47. Although the State has a valid interest in protecting the public fiscally, it may not pursue that interest by making invidious distinctions between classes of its citizens without adequate justification. Moreover, the State has no fiscal justification here for denying same-sex couples the freedom to marry because the State would generate additional revenues by allowing same-sex couples to marry and to be recognized as married.
48. The State's interest in child welfare is affirmatively harmed-not furthered-by the marriage ban. The marriage ban injures same-sex couples' children without offering any benefit to other children.
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49. Barring same-sex couples from marriage does not prevent same-sex couples from raising children together. Same-sex couples in Indiana can and do bear children through use of reproductive technology that is available to same-sex couples and different-sex couples alike, and bring children into their families through foster care and adoption. Procreation is not a requirement of marriage, and many married people choose not to have children while many unmarried people procreate. Indiana has never restricted marriage to those capable of or intending to procreate, nor would it be constitutionally permissible to do so.
50. There is no valid basis for the State to assert a preference for parenting by different-sex couples over same-sex couples. Based on more than thirty years of research, the scientific community has reached consensus that children raised by same-sex couples are just as well-adjusted as children raised by different-sex couples. This consensus has been recognized by every major professional organization dedicated to children's health and welfare, including the American Academy of Pediatrics, the American Psychological Association, the American Medical Association, the National Association of Social Workers, and the Child Welfare League of America.
51. There is not even a rational basis for favoring parenting by heterosexual couples over gay and lesbian couples. See, e.g., De Leon v. Perry, -F. Supp. 2d-, 2014 WL 715741, at *14 (W.D. Tex. Feb. 26, 2014) (finding no "evidentiary support for [defendants'] assertion that denying marriage to same-sex couples positively affects childrearing," and "agree[ing] with other district courts that have recently reviewed this issue and conclud[ing] that there is no rational connection between Defendants' assertion and the legitimate interest of successful childrearing."); see also id. (concluding that Texas's same-sex marriage ban "causes needless stigmatization and humiliation for children being raised by the loving same-sex couples being
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targeted."); Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 980 (N.D. Cal. 2010) (finding that the research supporting the conclusion that "[c]hildren raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted" is "accepted beyond serious debate in the field of developmental psychology"), aff'd sub nom, Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), vacated for lack of standing sub nom, Hollingsworth v. Perry, No. 12-144,2013 WL 3196927 (U.S. June 26, 2013); In re Adoption of Doe, 2008 WL 5006172, at *20 (Fla. Cir. Ct. Nov. 25, 2008) ("[B]ased on the robust nature of the evidence available in the field, this Court is satisfied that the issue is so far beyond dispute that it would be irrational to hold otherwise; the best interests of children are not preserved by prohibiting homosexual adoption."), ajJ'd sub nom, Florida Dep't of Children & Families v. Adoption ofXX G., 45 So.3d 79 (Fla. Dist. Ct. App. 2010); Howard v. Child Welfare Agency Review Bd, Nos. 1999-9881,2004 WL 3154530, at *9 and 2004 WL 3200916, at *3-4 (Ark. Cir. Ct. Dec. 29, 2004) (holding based on factual findings regarding the well-being of children of gay parents that "there was no rational relationship between the [exclusion of gay people from becoming foster parents] and the health, safety, and welfare of the foster children."), aff'd sub nom, Dep 't ofHuman Servs. v. Howard, 238 S.W.3d 1 (Ark. 2006).
52. Excluding same-sex couples from marriage harms their children, including by branding their families as inferior and less deserving of respect and by encouraging private bias and discrimination. Denying same-sex couples the equal dignity and status of marriage humiliates the children now being raised by same-sex couples, and makes it more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.
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53. Excluding same-sex couples from civil marriage will not make the children of different-sex spouses more secure. Different-sex spouses' children will continue to enjoy the benefits that flow from their parents' marriage, regardless of whether same-sex couples are permitted to marry. The marriage ban has no effect on the choices different-sex couples make about such profound issues as whether to marry, whether to have children, or whether to raise their children within marriage.
54. The State's interest in the welfare of children parented by same-sex couples is as great as its interest in the welfare of any other children. The family security that comes from the State's official recognition and support is no less important for same-sex parents and their children than it is for different-sex parents and their children.
55. Excluding same-sex couples from marriage does nothing to protect or enhance the rights of different-sex spouses. Different-sex spouses will continue to enjoy the same rights and status conferred by marriage, regardless of whether same-sex couples may marry, unimpaired by the acknowledgment that this freedom belongs equally to lesbians and gay men.
CLAIMS FOR RELIEF COUNT I:
Deprivation of Due Process U.S. Const. Amend. XIV (42 U.S.C. § 1983)
56. Plaintiffs incorporate by reference all of the preceding paragraphs of this Complaint as though fully set forth herein.
57. Plaintiffs state this cause of action against Defendants in their official capacities for purposes of seeking declaratory and injunctive relief.
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58. The Fourteenth Amendment to the United States Constitution, enforceable pursuant to 42 U.S.c. § 1983, provides that no state shall "deprive any person of life, liberty, or property, without due process oflaw." U.S. Const. amend. XIV, § 1.
59. The right to marry the unique and irreplaceable person of one's choice and to direct the course of one's life in this intimate realm without undue government restriction is one of the fundamental liberty interests protected by the Due Process Clause of the Fourteenth Amendment. Indeed, the essence of the fundamental right to marry is freedom of personal choice in selecting one's spouse.
60. I.C. §§ 31-11-1-1(a), 31-11-1-1-(b), and all other sources of Indiana law that preclude marriage for same-sex couples or prevent recognition of their marriages violate the due process guarantee of the Fourteenth Amendment, both facially and as applied. Defendants' actions to enforce the marriage ban directly and impermissibly infringe on Plaintiffs' choice of whom to marry, interfering with a core, life-altering, and intimate personal choice.
61. The Due Process Clause also protects choices central to personal dignity and autonomy, including each individual's rights to family integrity and association. Defendants' actions to enforce the marriage ban directly and impermissibly infringe on Plaintiffs' deeply intimate, personal, and private decisions regarding family life and preclude Plaintiffs from obtaining full liberty, dignity, and security for themselves and their families.
62. The DEFENDANT CLERKS' duties and actions to ensure compliance with Indiana's discriminatory marriage ban by, for example, denying same-sex couples marriage licenses violate Plaintiffs' fundamental right to marry and the rights protected under the Fourteenth Amendment to the United States Constitution to liberty, dignity, autonomy, family integrity, association, and due process of Plaintiffs. As the Indiana Attorney General,
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DEFENDANT GREG ZOELLER is responsible for enforcing and/or defending Indiana's laws, including Indiana's discriminatory marriage ban. Enforcement and/or defense of the marriage ban violates Plaintiffs' fundamental right to marry and the rights protected under the Fourteenth Amendment to the United States Constitution to liberty, dignity, autonomy, family integrity, association, and due process of Plaintiffs.
63. Defendants cannot satisfy the Due Process Clause's decree that government's denial of a fundamental right or substantial infringement of a liberty interest may be sustained only upon a showing that the burden is narrowly tailored to serve a compelling, or even important governmental interest, as the marriage ban is not even tailored to further any legitimate interest at all.
64. Thus, Defendants, acting under color of state law, are depriving plaintiffs of rights secured by the Due Process Clause of the Fourteenth Amendment to the United States Constitution in violation of 42 U.S.C. § 1983.
COUNT II: Deprivation of Equal Protection
U.S. Const. Amend. XIV (42 U.S.c. § 1983)
65. Plaintiffs incorporate by reference and re-allege all of the preceding paragraphs of this Complaint as though fully set forth herein.
66. Plaintiffs state this cause of action against Defendants in their official capacities for purposes of seeking declaratory and injunctive relief.
67. The Fourteenth Amendment to the United States Constitution, enforceable pursuant to 42 U.S.C. § 1983, provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1.
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68. I.C. §§ 31-11-I-I(a), 31-11-I-I(b), and all other sources of Indiana law that preclude marriage for same-sex couples or prevent recognition of marriages violate the equal protection guarantee of the Fourteenth Amendment both facially and as applied to Plaintiffs.
69. THE DEFENDANT CLERKS' duties and actions to ensure compliance with Indiana's discriminatory marriage ban by, for example, denying same-sex couples marriage licenses, violates the right of Plaintiffs to equal protection by discriminating impermissibly on the basis of Plaintiffs' sexual orientation and sex. Indiana Attorney General DEFENDANT GREG ZOELLER's duties and actions to enforce and defend Indiana's discriminatory marriage ban violates the right of Plaintiffs to equal protection by discriminating impermissibly on the basis of Plaintiffs' sexual orientation and sex.
70. Same-sex couples, such as the Plaintiff couples, are identical to different-sex couples in all of the characteristics relevant to marriage.
71. Same-sex couples make the same commitment to one another as different-sex couples. Like different-sex couples, same-sex couples fall in love, build their lives together, plan their futures together, and hope to grow old together. Like different-sex couples, same-sex couples support one another emotionally and financially and take care of one another physically when faced with injury or illness. Plaintiff couples seek to marry for the same emotional, romantic, and dignitary reasons and to provide the same legal shelter to their families as different-sex spouses.
72. Discrimination Based on Sexual Orientation. The marriage ban targets lesbian and gay Indiana residents as a class for exclusion from marriage and discriminates against each Plaintiff based on his or her sexual orientation, both facially and as applied.
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73. The exclusion of Plaintiffs from marriage based on Plaintiffs' sexual orientation subjects Defendants' conduct to strict or at least heightened scrutiny, which Defendants' conduct cannot withstand because the exclusion does not even serve any legitimate governmental interests, let alone any important or compelling interests, nor does it serve any such interests in an adequately tailored manner.
74. Lesbians and gay men have suffered a long and painful history of discrimination in Indiana and the United States.
75. Sexual orientation bears no relation to an individual's ability to contribute to society.
76. Sexual orientation is a core, defining trait that is so fundamental to one's identity and conscience that a person may not legitimately be required to abandon it (even if that were possible) as a condition of equal treatment.
77. Sexual orientation generally is fixed at an early age and highly resistant to change through intervention. No credible evidence supports the notion that such interventions are either effective or safe; indeed, they often are harmful and damaging. No mainstream mental health professional organization approves interventions that attempt to change sexual orientation, and virtually all of them have adopted policy statements cautioning professionals and the public about these treatments.
78. Lesbians and gay men are a discrete and insular minority, and ongoing prejudice against them continues seriously to curtail the operation of those political processes that might ordinarily be relied upon to protect minorities.
79. Lesbians and gay men lack express statutory protection against discrimination in employment, public accommodation, and housing at the federal level and in more than half the
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states, including Indiana; are systematically underrepresented in federal, state, and local democratic bodies; have been stripped of the right to marry through numerous state constitutional amendments and are currently not permitted to marry in more than 30 states; and have been targeted across the nation through the voter initiative process more than any other group.
80. Discrimination Based on Sex. Indiana's marriage ban discriminates against Plaintiffs on the basis of their sex, both facially and as applied, barring Plaintiffs from marriage or from being recognized as validly married solely because each of the Plaintiffs wishes to marry a life partner of the same sex. The sex-based restriction is plain on the face of Indiana's laws, which stipulate that "[o]nly a female may marry a male. Only a male may marry a female," I.c. § 31-11-1-1(a), and prohibit recognition of marriages in other states "between persons of the same gender," I.C. § 31-11-1-1 (b).
81. Because of these sex-based classifications, Marilyn Rae Baskin, for example, is precluded from marrying Esther Fuller because Rae is a woman and not a man; were Rae a man, she could marry Esther.
82. Indiana's marrIage ban also impermissibly enforces conformity with sex stereotypes by excluding Plaintiffs from marrying the one person each Plaintiff loves because Plaintiffs have failed to conform to the sex-based stereotypes that men should marry women and that women should marry men.
83. The exclusion of Plaintiffs from marriage based on their sex, and the marriage ban's requirement that Plaintiffs behave in conformity with sex-based stereotypes as a condition of being able to marry, cannot survive the heightened scrutiny required for sex-based. classifications.
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84. Discrimination With Respect to Fundamental Rights and Liberty Interests Secured by the Due Process Clause. The marriage ban discriminates against Plaintiffs based on sexual orientation and sex with respect to access to the fundamental right to marry and with respect to their liberty interests in dignity, autonomy, and family integrity and association. Differential treatment with respect to exercise of fundamental rights and liberty interests subjects Defendants' conduct to strict or at least heightened scrutiny, which Defendants' conduct cannot withstand.
DECLARATORY AND INJUNCTIVE RELIEF 28 U.S.C. §§ 2201 and 2202; Federal Rules of Civil Procedure 57 and 65 85. Plaintiffs incorporate by reference and re-allege all of the preceding paragraphs of this Complaint as though fully set forth herein. 86. This case presents an actual controversy because Defendants' present and ongoing denial of equal treatment and liberty to Plaintiffs subjects them to serious and immediate harms, warranting the issuance of a declaratory judgment. 87. Plaintiffs seek preliminary and/or permanent injunctive relief to protect their constitutional rights and avoid the injuries described above. A favorable decision enjoining Defendants would redress and prevent the irreparable injuries to Plaintiffs identified herein, for which Plaintiffs have no adequate remedy at law or in equity. 88. The State will incur little to no burden in allowing same-sex couples to marry, whereas the hardship for Plaintiffs of being denied equal protection and liberty is severe, subjecting them to an irreparable denial of their constitutional rights. The balance of hardships thus tips strongly in favor of Plaintiffs.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court enter judgment:
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A. Declaring that the provisions and enforcement by Defendants ofLC. §§ 31-11-11(a), 31-11-1-1 (b), and any other sources of Indiana law that exclude same-sex couples from marriage or from recognition of marriages entered into in another jurisdiction violate Plaintiffs' rights under the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment to the United States Constitution;
B. Permanently enj oining enforcement by Defendants of LC. §§ 31-11-1-1 (a), 31-111-1 (b), and any other sources of state law that exclude same-sex couples from marriage or refuse recognition to the marriages of same-sex couples entered into in another jurisdiction;
C. Requiring DEFENDANT CLERKS in their official capacities to accept applications and issue marriage licenses to same-sex couples on the same terms as different-sex couples and to record the valid marriages of same-sex couples from other jurisdictions on the same terms as the valid marriages of different-sex couples from other jurisdictions;
D. Awarding Plaintiffs their costs, expenses, and reasonable attorneys' fees pursuant to, inter alia, 42 U.S.C. § 1988 and other applicable laws; and
E. Granting such other and further relief as the Court deems just and proper. F. The declaratory and injunctive relief requested in this action is sought against each Defendant; each Defendant's officers, employees, and agents; and against all persons acting in cooperation with any Defendant or under a Defendant's supervision, direction, or control.
* * *
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DATED: March 10,2014
arbara J. Baird LAW OFFICE BARBARA J. BAIRD
!
445 North Pennsylvania Street, Suite 401 Indianapolis, Indiana 46204-0000 (317) 252-0272 bjbaird@bjbairdlaw.com
Paul D. Castillo (pro hac vice application pending) LAMBDA LEGAL DEFENSE & EDUCATION FUND, INC. 3500 Oak Lawn Ave., Suite 500 Dallas, Texas 75219 (214) 219-8585, ext. 242 pcastillo@lambdalegal.org
Camilla B. Taylor (pro hac vice application pending) LAMBDA LEGAL DEFENSE & EDUCAnON FUND, INC. 105 West Adams, Suite 2600 Chicago, Illinois 60603 (312) 663-4413 ctaylor@lambdalegal.org
Jordan M. Heinz (pro hac vice application pending) Brent P. Ray (pro hac vice application pending) Dmitriy G. Tishyevich (pro hac vice application pending) Robyn R. English (pro hac vice application pending) KIRKLAND & ELLIS LLP 300 North LaSalle Street Chicago, Illinois 60654 (312) 862-2000 jordan.heinz@kirkland.com brent.ray@kirkland.com dmitriy. tishyevich@kirkland.com robyn.english@kirkland.com
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 Case 1:14-cv-00355-RLY-TAB Document 30 Filed 03/31/14 Page 1 of 35 PageID #: 87

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA

MARILYN RAE BASKIN and ESTHER

)

FULLER; BONNIE EVERLY and LINDA )

JUDKINS; DAWN CARVER and PAMELA )

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.

)

Civil Action No.: 1:14-cv-00355-RLY-TAB

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Plaintiffs Marilyn Rae Baskin and Esther Fuller, Bonnie Everly and Linda Judkins, Dawn

Carver and Pamela Eanes, Henry Greene and Glenn Funkhouser, individually and as parents and

next friends of C.A.G., and Ni kole Quasney and Am y Sandler, individually and as parents and

next friends of A.Q.-S. and M. Q.-S. (collectively “Plaintiffs”) , by and through their attorneys,

file this First Amended Complaint against Defendants Boone County Clerk Penny Bogan, Porter

County Clerk Karen M. Martin, Lak e County Clerk Michael A. Brown, Ham ilton County Clerk

Case 1:14-cv-00355-RLY-TAB Document 30 Filed 03/31/14 Page 2 of 35 PageID #: 88
Peggy Beaver, Indiana State Departm ent of Health Commissioner VanNess, and Indiana Attorney General Greg Zoeller (collectively “Defendants”), and allege as follows:
INTRODUCTION 1. Plaintiffs, all Indiana residen ts, comprise five loving, comm itted same-sex couples (“adult Plaintiffs” or “Plaintiff couples”) and three minor children of two of the couples. All Plaintiffs bring this action pursuant to 42 U.S.C. § 1983 seeking declaratory and preliminary and permanent injunctive relief for Defendants’ violation of Plaintiffs’ rights — the guarantees of liberty and equal protection under the F ourteenth Amendment to the United States Constitution — caused by the discriminatory exclusion of same-sex couples from the freedom to marry and the discrim inatory denial of recogniti on of m arriages lawfully entered by sam e-sex couples in other jurisdictions pursuant to the laws of the St ate of Indiana (“State”). See Indiana Code § 31-11-1-1. 2. Marriage plays a unique role in soci ety as the universally recognized and celebrated hallmark of a couple’s comm itment to build fam ily life together. It confers upon couples a dignity and status of i mmense import. The adult Plaintiffs have for med committed, enduring bonds equally worthy of the respect a fforded by the State to different-sex couples through marriage. Yet, the State, without any ad equate justification, ha s enacted, interpreted, and enforced its laws in ways that single out lesbian and gay couples in Indiana by excluding them from the freedom to marry and by refusing to recognize and respect lawful m arriages from other jurisdictions, based solely on their sexual orientation and their sex. 3. Through Defendants’ adherence to and enfo rcement of Indiana Code Section 3111-1-1 and their interpretation and enforcem ent of the State’s other laws to preclud e same-sex couples from m arrying or having their m arriages lawfully entered into other jurisdictions recognized in Indiana, the State and Defendants send a message that lesbians, gay men, and their
2

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children are second-class citizens who are undeserving of the legal sanction, respect, protections, and support that different-sex couples and their children receive automatically through marriage. This discrimination (referred to herein as the State’s “marriage ban”) is established in the State’s statutes, which prevent sam e sex couples from entering into a civil m arriage in the State and prohibits the State from honoring a civil m arriage validly ente red by a sam e-sex couple in another jurisdiction.
4. The marriage ban inflicts serious and irreparable harm on same-sex couples and their children. Plaintiffs Mari lyn Rae (“Rae”) Baskin and Esther Fuller, Bonnie Everly and Linda (“Lyn”) Judkins, Dawn Carver and Pam ela (“Pam”) Eanes, and H enry Greene and Glenn Funkhouser are not m arried. They seek the freedo m to marry the one u nique and irreplaceable person each loves, and thereby to assum e the responsibilities and obtain the myriad protections, obligations, and benefits conferre d upon married couples under state and federal law. Plaintiffs Nikole Quasney and Amy Sandler m arried in a nother jurisdiction, but are treated as legal strangers in the state they call home — a hurtful invalidation of their relationship, which deprives them of the protections that a legally-recogn ized marriage most securely provid es. Plaintiffs C.A.G., A.Q.-S., and M.Q.-S. (“ch ild Plaintiffs”) seek the prot ections, security, support, and benefits conferred upon the children of m arried parents, and to end the stigm a, shame, and humiliation imposed upon children of lesbian and gay parents by the law’s refusal to permit them to belong to families with married parents and d esignation of their families as inferior to others and unworthy of marriage.
5. The right to marry the person of one’s choice and to direct the course of one’s life in this intimate realm without undue government interference is one of the fundam ental liberty interests protected for all by the Due Process Clau se of the Fourteenth Amendment to the United
3

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States Constitution. The State’s exclusion of th e Plaintiff couples and other same-sex couples from marriage violates their fundam ental right to marry. The State also interferes with the constitutionally protected liberty and privacy interest in familial association and integrity of the child Plaintiffs and other children o f same-sex couples without any compelling, important, o r even legitimate justification.
6. The State a lso has dep rived Plaintiffs of their guarantee o f equality u nder the Equal Protection Clause of the Fo urteenth Amendment to the Unite d States Constitution by denying Plaintiff couples and othe r lesbian and gay Indiana resi dents the right to m arry the person of their choice based solely on their se xual orientation and sex. Likewise, the S tate denies the child Plaintiffs and other child ren of sa me-sex couples equal access to dignity, legitimacy, protections, benefits, su pport, and security conf erred on children of m arried parents under state and federal law. The m arriage ban penalizes the Plaintiff couples’ self-determination in the most intimate sphere of their lives. Th e United S tates Supreme Court ha s stated that marriage is the most important relation in life, as well as an expression of emotional support and public commitment, and a far-reaching legal ac knowledgement of the intim ate relationship between two people. The marriage ban deprives Plaintiff couples and other same-sex couples of dignity, and humiliates children of same-sex couples by branding their fa milies as inferior and unworthy of the legitimacy, recognition, and respect accorded to other families.
7. Because the freedom to marry is one of th e vital personal rights essential to the orderly pursuit of happiness by fr ee men and wom en, adult Plainti ffs seek equal access to the freedom to m arry for sam e-sex couples and rec ognition of legal m arriages performed in other states as the only means to secure their rights to due process and equal protection of the law, and
4

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to eliminate the myriad serious harms inflicted on Plaintiffs by the marriage ban and Defendants’ enforcement of it.
JURISDICTION AND VENUE 8. Plaintiffs bring this action under 42 U.S.C. §§ 1983 and 1988 to redress the deprivation under color of state law of rights secured by the United States Constitution. 9. This Court has original jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 1343 because the m atters in controversy arise under the Constitu tion and laws of the United States. 10. This Court has the author ity to enter a declarator y judgment and to provide preliminary and permanent injunctive relief pursuant to Rules 57 and 65 of the Federal Rules of Civil Procedure and 28 U.S.C. §§ 2201 and 2202. 11. This Court has personal jurisdiction over Defendants because they are domiciled in the State and/or have otherw ise made and estab lished contacts with the S tate sufficient to permit the exercise of personal jurisdiction over them. 12. Venue is proper in this district under 28 U.S.C. § 1391(b) because all Defendants reside within the State of Indiana, Defenda nt Boone County Clerk P enny Bogan, Defendant Hamilton County Clerk Peggy Beaver, Defendant Va nNess, and Defendant Greg Zoeller reside and have offices within the district , and/or because a substantial part of the events that gave rise to Plaintiffs Rae Baskin, Esther Fuller, Henr y Greene, Glenn Funkhouser, and C.A.G.’s claim s occurred, and will occur, in this district.
5

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PARTIES A. Plaintiffs Rae Baskin and Esther Fuller 13. Plaintiffs RAE, 60, and ESTHER, 78, are a lesbian couple living in Whitestown, Boone County, Indiana, within the Indianapo lis Division of the S outhern District of Indiana. Rae and Esther have been in a loving and committed relationship for nearly twenty-four years. Rae and Esther would marry in Indiana but for the marriage ban. 14. Esther was born in Indianapolis, Indiana and has lived in Indiana her whole life, except for a year attending college in Missou ri. Rae has been a residen t of Indiana for twentyfour years. Esther holds a degree from Purdue University Krannert School of Managem ent, worked as a pharm acist for many years, and is cu rrently retired. Rae graduated from Syracuse University in 1975, where she m ajored in Poverty & Urban Affairs, an d New York Law School in 1978. After graduating from law school, Rae owned her own company for twenty years. 15. The marriage ban frustrates Rae and Esther ’s dream of being able to m arry. Rae wishes to m arry Esther because absent m arriage, their relationship is viewed as having less dignity and legitimacy by the State a nd in the eyes of others. Esther wants to ensure that Rae is protected and secure, even if Esther should pass away, and that Rae receives spousal protections including Social Security benefits for surviving spouses. Esther had breast cancer in 2008 and broke her hip in 2009. Regarding Esther, Rae said “She’s the world’s biggest m ush, she loves me unconditionally, and . . . I can’t imagine life without her.” Bonnie Everly and Lyn Judkins 16. Plaintiffs BONNIE, 56, and LYN, 58, are a lesbian c ouple living in Chesterton, Porter County, Indiana. Bonnie and Lyn have been in a lov ing and committed relationship for more than thirteen years. Bonnie and Lyn would marry in Indiana but for the marriage ban.
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17. Bonnie was born in Gary, Indiana, and rais ed in Michigan City, Indiana. Bonnie

and Lyn are both divorced from prior marriages they entered into long ago before they were able

to acknowledge their sexual orient ation to themselves or others. Bonnie a nd Lyn each have a

child, and they live with Bonnie’s son, David, ag e twenty-one. David is supportive of their

relationship. Bonnie was employed at a factory where she operated m achines and later becam e

an independent driver for the news dispatch in Michigan City, Indiana. Lyn was a secretary and

a school bus driver. In 2002, Bonnie and Lyn were struck by a drunk driver and both suffer from

mobility-related disabilities.

18. The marriage ban frustrates Bonnie’s a nd Lyn’s dream s of being able to

marry. Unable to m arry in Indiana, Bonnie and Lyn held a private religious ceremony on a

beach in Michig an City in April 2002.

Lyn describes Bonnie as her “rock and

security.” “[Bonnie] keeps m e laughing and she is the reason I get up in the m orning. To be

able to be legally wed to her would be a dream come true. I would do anything for

Bonnie.” Bonnie describes Lyn as “a breath of fresh air.” “[Lyn] is what keeps m e going. I

want to make her my wife because I’ve never ha d that feeling for anyone else. I want to m ake

my life complete by putting a ring on her finger knowing it will be there forever.”

Dawn Carver and Pam Eanes

19. Plaintiffs DAWN, 41, and PAM, 50, are a le sbian couple living in Munster, Lake

County, Indiana. They have been in a lov ing and committed relationship for sev enteen years.

Dawn and Pam would marry in Indiana but for the marriage ban.

20. Dawn was born in Griffith, Indiana and ha s lived in Indiana m ost of her life.

Dawn is a patrol officer for the Oak Park Police Department and has worked there for ten years.

Pam is a Captain in th e Calumet City Fire De partment and has worked there for twenty-six

7

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years. Pam and Dawn are active in their loca l community. Pam has two children from prior relationships, and both children vi ew both Pam and Dawn as their m others. The children are supportive of their relationship.
21. The marriage ban frustrates Pam and Dawn’s dream of being able to m arry. Pam and Dawn have an Illinois Civil Union. But th is civil union is not r ecognized in Indiana. Because Indiana’s marriage ban has prevented th em from marrying, they are not fully protected in the event that either of them is seriously injured from the inherent dangers of their work.
22. Pam and Dawn want to express th e love and commitment to each other that only marriage can convey. They want to grow old with one another; they m ean everything to each other. Pam states, “Dawn is everything to m e, she’s my world, she’s my best friend, she’s m y partner, she’s m y confidante, she’s m y everything. My life is so m uch better because I have Dawn in it, I really look forward to going into old age together.” Henry Greene and Glenn Funkhouser with minor son, C.A.G.
23. Plaintiffs HENRY, 48, a nd GLENN, 51, are a gay m ale couple living in Carm el, Hamilton County, Indiana, within the Indianapolis Di vision of the Southern District of Indiana. Henry and Glenn have been in a committed rela tionship for twenty-two years. Henry and Glenn would marry in Indiana but for the marriage ban.
24. Glenn was born and raised in Indiana and m oved back to his hom e state to be closer to fam ily in 2001. Henry and Glenn have lived together in Indian a for almost thirteen years, and consider Ind iana their home. Henry has four years of college training in com puter science and works as a project manager. Gl enn holds a Bachelor’s Degree in Business Management and Personnel Administration & Management Information Systems from Ball State University. Glenn works as an account manager.
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25. Henry and Glenn have a twel ve year old-son, Plainti ff C.A.G. Henry adopted C.A.G. initially and Glenn later obtained a sec ond parent adoption to establish a legal parentchild relationship with their s on. They are very involved in their son’s school and in their church. Because of the m arriage ban, Henry and Gl enn fear th at their son will in ternalize the message he receives from his govern ment that his fa mily is not as worthy as others, and that he will face discrim ination because his fam ily is deemed less legitim ate, and less deserving of respect by the State.
26. The marriage ban frustrates Henry and Gl enn’s dream of being m arried. Henry says that he “can’t im agine his life without Glenn .” Glenn says that he and Henry are “partners in life,” and that “they knew th ey could give [their son] a be tter life, a second chance.” The marriage ban interferes with the ir ability to pr otect their son and help him to grow up with dignity and pride in his fa mily, makes Henry and Glenn’s family status and financial security uncertain, and causes them stress and anxiety. Nikole (“Niki”) Quasney and Amy Sandler with minor daughters, A.Q.-S. and M.Q.-S.
27. Plaintiffs NIKI, 37, and AM Y, 37, are a lesbian couple living in Munster, Lake County, Indiana. They have been in a loving an d committed relationship for over thirteen years. Niki and Amy were married in the Commonwealth of Massachusetts on August 29, 2013.
28. Niki was born in East Chicago, Indiana, and raised in Munster, Indiana. Niki and Amy own a home in Indiana, where they are raising their two minor daughters, Plaintiffs A.Q.-S. (age 2) and M.Q.-S. (age 1), who w ere conceived through assisted re productive technology and an anonymous donor. After Amy gave birth to A.Q.-S., Niki and Amy were required to incur the cost and expense of obtaining a second parent adoption to es tablish a legal parent-child relationship between Niki and A.Q.-S. Am y and Niki secured an Illinois civil union on June 7,
9

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2011. W hen Amy gave birth to their second da ughter, M.Q.-S., even though they then were living in Indiana, Amy and Niki s elected a hospital in Illinois so that the y could give birth in a state that would respect Niki’s parental relationship to M.Q.-S. from birth and accordingly issue her a two-parent birth certificat e in reliance on their Illinoi s civil union. Am y and Niki performed a second parent adoption for M.Q.-S as well, to ensure that Niki’s parent-child relationship would be secure in Indiana.
29. Niki holds a Bachelor of Science in Restaur ant Hotel I nstitutional Tourism Management from Purdue University, W est Lafayette, and a Bachelor of Arts degree in Education from the Univers ity of Missouri at St. Louis. Niki worked for several years as a physical education teacher in Nevada. Amy hol ds a Bachelor of Arts degree in Jou rnalism and Master of Arts degree in Counseling and Personne l Services from the University of Maryland. Amy also holds a Ph. D . in Educational Leadership from the University of Nevada, Las Vegas. Amy has worked as an adjunct professor and is currently pursuing a Master of Arts degree in Social Service Adm inistration from the Univer sity of Chicago, to which she commutes for classes from the fam ily’s home in Indiana. Af ter Amy obtains her degree, she would prefer to seek licensure and employment in Indiana to be close to Niki. However, because school districts in Indiana will not recognize Am y’s marriage to Niki for the purpose of providin g Amy with spousal health insurance, Amy must seek a job in Illinois.
30. Niki’s family history put her at high risk for breast and ovari an cancer. In 2007, Niki made the difficult deci sion to proceed with a p rophylactic double mastectomy after two siblings developed breast cancer. Despite her best effort to ma nage her cancer risk, Niki was diagnosed with Stage IV ovarian cancer in J une 2009, which required surgery days later to remove more than 100 tum ors in her abdom inal cavity and on critical organs, such as her liver,
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kidneys, and bladder, and which required rem oval of her entire omentum. At the time of Niki’s diagnosis almost five years ago, the physician who perform ed her surgery informed her that the median survival rate for her cancer is five years.
31. Since her diagnosis in 2009, Niki has undergone three surgeries, countless hospital visits and aggressive chemotherapy tr eatment, including her m ost recent six-cycle course of chemotherapy (11 infusions) over the last few months. The State’s refusal to recognize Niki’s marriage to Am y encourages and invites private bias and discrimination, including in medical settings. Niki and Amy fear that their marriage will not be respected in Indiana, and that medical personnel may treat them as legal strangers to each other. For ex ample, when Niki and Amy attempted to obtain a family membership with a fitness center operated by a local hospital, the hospital denied them such a mem bership on the groun d that the h ospital’s “definition of spouse matches the state of Indiana’s definitio n of m arriage.” Even though this hospital is approximately two miles from where Niki, Amy, and their daughters live, Niki chooses not to go to this hospital for regular chem otherapy treatments or even certain em ergency care because the hospital may not respect her legal relationship to Amy. Instead, Niki travels to Chicago. Recently, when Niki experien ced chest pain, she traveled 40 m inutes to th e University of Chicago Medical Center for treatm ent for what was later id entified as a pulmonary embolism. Thus, the State’s refusal to recognize her m arriage impedes her ability to secure emergency care or treatment from her local community hospital. Niki also fears that when she passes away, the State’s refusal to recognize Am y as a spouse on her death certif icate will advers ely affect her family’s ability to secure insurance, and access federal and state protections and safety nets, such as Social Security benefits available to surv iving spouses. Because Am y and Niki have two
11

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young children, and Niki continues to suffer from terminal ovarian cancer, their need to have their marriage recognized by Indiana is urgent.
32. Niki describes Amy as her “rock” saying, “she is the most amazing person I have ever met” and “an am azing role model for their two daughters.” Am y says Niki “is the m ost kind and generous person” and that “she picks up where I leave off.” Am y loves Niki and “will forever be grateful for every moment [their] kids have with her…and that I have with her.”
B. Defendants 33. DEFENDANT PENNY BOGAN is sued in her official capacity as the Boone County Clerk. Bogan’s duties include accepting m arriage applications, issuing m arriage licenses, and maintaining records relating to marriage licenses. Bogan must ensure com pliance through all of these functions with relevant Indi ana laws, including those that exclude sam e-sex couples from marriage, and forbid the filing of records relating to marriages of same-sex couples that take place in othe r states. Bogan is a person within the m eaning of 42 U.S.C. § 1983 and was acting under color of state law at all times relevant to this complaint. 34. DEFENDANT KAREN M. MARTIN is sued in her official capacity as the Porter County Clerk. Martin’s duties include accep ting marriage applications, issuing m arriage licenses, and maintaining records relating to marriage licenses. Martin must ensure com pliance through all of these functions with relevant Indi ana laws, including those that exclude sam e-sex couples from marriage, and forbid the filing of records relating to marriages of same-sex couples that take place in other states. Martin is a person within the m eaning of 42 U.S.C. § 1983 and was acting under color of state law at all times relevant to this complaint. 35. DEFENDANT MICHAEL A. BROWN is sued in his official capacity as the Lake County Clerk. Brown’s duties include accepti ng marriage applications, issuing m arriage licenses, and maintaining records relating to marriage licenses. Brown must ensure com pliance
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through all of these functions with relevant Indi ana laws, including those that exclude sam e-sex

couples from marriage, and forbid the filing of records relating to marriages of same-sex couples

that take place in other states. Brown is a person within the m eaning of 42 U.S.C. § 1983 and

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

36. DEFENDANT PEGGY BEAVER is sued in he r official capacity as the Hamilton

County Clerk. Beaver’s dutie s include accepting m arriage applications, issuing m arriage

licenses, and maintaining records relating to marriage licenses. Beaver must ensure com pliance

through all of these functions with relevant Indi ana laws, including those that exclude sam e-sex

couples from marriage, and forbid the filing of records relating to marriages of same-sex couples

that take place in other states. Beaver is a person within the m eaning of 42 U.S.C. § 1983 and

was acting under color of state la w at all tim es relevant to th is complaint. Collectively,

DEFENDANTS BOGAN, MARTIN, BROWN, and BEAVER are referred herein as the

DEFENDANT CLERKS.

37. DEFENDANT WILLIAM C. VANNESS II, M.D., is sued in his official capacity

as the COMMISSIONER, INDIANA ST ATE DEPARTMENT OF HEALT H. VanNess is a

person within the m eaning of 42 U.S.C. § 1983 and was acting under color of state law at all

times relevant to this Co mplaint. The Indiana State Department of Heal th (“ISDH”) is requ ired

to develop the for m for applications for m arriage licenses, including the requirem ent to list one

“Male Applicant” and one “Female Applicant.” The ISDH also prescribes the information to be

contained on state certificates, including death certificates.

38. DEFENDANT GREG ZOELLER is sued in his official cap

acity as the

ATTORNEY GENERAL OF INDIANA. Zoeller is a person within the m eaning of 42 U.S.C.

§ 1983 and was acting under color of st ate law at all tim es relevant to this Com plaint. In his

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capacity as Attorney General, Zoeller has th e authority to enforce the statu tes of the State of Indiana, including its provision s related to the m arriage ban, and has the duty to defend the constitutionality of the enactments of the Indiana Legislature.
39. All of the above Defendants, and those s ubject 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.
STATEMENT OF FACTS 40. Adult Plaintiffs are all residents of I ndiana who experience the sam e joys and shoulder the sam e challenges of fa mily life as their heterosexual neighbors, co-workers, and other community members who are free to m arry. Adult Plaintiffs are c ontributing members of society who support their comm itted partners and nurture their children, but must do so witho ut the same dignity and respect afforded by the State to other fam ilies through access to th e universally understood and celebrate d status of m arriage. The St ate’s exclusion of sam e-sex couples from marriage, and from recognition of their lawful out-of-state marriages, subjects adult Plaintiffs to legal vulne rability and related s tress, while depriving the m and their children of equal dignity and security. Th rough its marriage ban, the S tate send a purposeful m essage that the State views lesbian and gay men and their children as sec ond-class members of society who are undeserving of the legal sanc tion, respect, and support that di fferent-sex spouses and their families enjoy. A. Adult Plaintiffs’ Attempts to Marry and Marriage in Other Jurisdictions. 41. But for the fact that they are of the sa me sex, each unmarried Plaintiff couple is legally qualified to marry under the laws of Indiana and wishes to marry in the State. Each adult
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Plaintiff is over the age of eighteen, and no adult Plaintiff is precluded from marriage as a result of having another spouse or being closely related to his or her life partner.
42. Because of Indiana’s statuto ry prohibition on marriage for sam e-sex couples, the DEFENDANT CLERKS are required to refuse to i ssue a marriage licenses to same-sex couples. See I.C. § 31-11-1-1(a) (“Only a female may marry a male. Only a male may marry a female.”), § 31-11-4-12 (“If it appears that two (2) individuals do not have a right to a marriage license, the clerk of the circuit court shall refuse to issue the license.”). Each Plaintiff couple has applied for a marriage license with the County Clerk of their re spective counties. Each of their applications was refused because Plaintiff couples are same-sex couples.
43. On March 10, 2014, Rae Baskin and Esther Fuller appeared in person at the Boone County Clerk’s Office to seek a marriage license. When the couple requested a m arriage license, they were denied by three different em ployees of Defendant B ogan. At one point, the employees referred the couple to another state to marry and suggested they might consider a civil union from another state. Ultimately, Rae and Esther were told, “No, we really can’t do it.”
44. On March 10, 2014, Bonnie Everly and Lyn Judkins appeared in person at the Porter County Clerk’s Office to seek a marriage license. When the couple requested a m arriage license, they were denied by a fem ale employee of Defe ndant Martin who shared “I’ve been reading a lot about this, but I don’t think it’s legal here in Indiana.” When they asked again, the employee denied their request for a marriage license.
45. On March 12, 2014, Dawn Carver and Pam Eanes appeared in person at the Lake County Clerk’s Office to seek a marriage license. When the couple requested a marriage license, they were denied by a female employee of Defendant Brown. They were told “two women can’t get married here.”
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46. On March 20, 2014, Henry Greene and Gle nn Funkhouser appeared in person at Hamilton County Clerk’s Office to seek a m arriage license. W hen the couple requested a marriage license, they were deni ed by Defendant Beaver h erself. They were to ld “we are no t able to issue you a marriage license because you are of the same gender.”
47. Niki Quasney and Am y Sandler were validly m arried in Massachusetts and seek through this suit to end the State’s current deni al of recognition of their m arriage on the ground that it is a marriage entered by two individuals of the same sex.
B. Indiana’s Marriage Ban Singles Out Same-Sex Couple s and Excludes Them from Marriage.
48. Indiana has enacted a statute that excl udes same-sex couples from marriage. See I.C. § 31-11-1-1. This statute cannot be explained by reference to legitimate public policies that could justify the disadvantages the m arriage bans impose on same-sex couples who wish to marry. Rather, the history of its enactment and its own text dem onstrates that interference with the equal dignity of sam e-sex couples was m ore than a mere side effect of this enactment — it was its essence.
C. Plaintiffs Are Injured by the Marriage Ban. 49. Barring same-sex couples from marriage and m arriage recognition disqualifies them from critically important rights and responsibilities under state law that different-sex couples rely upon to secure their commitment to each other and to safeguard their families. By way of example only, same-sex couples are denied: a. The benefit of the presum ption that both spouses are parents to a child born
during the m arriage, and the ability of a couple to confer legitim acy on their children by marrying;
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b. Family health insurance coverage, incl uding spousal health benefits, retirement benefits, and surviving spouse benefits for public employees;
c. Family leave for an employee to care for a spouse; d. The ability to saf eguard family resources under an array of laws th at protect
spousal finances; e. The ability to m ake caretaking d ecisions for one another in tim es of death and
serious illness, including the priority to make m edical decisions for a n incapacitated spouse, the autom atic right to make burial decisions, and other decisions concerning disposition and handling of remains of deceased spouses. f. The right to inheritance unde r the laws of intestacy a nd the right of a surviving spouse to an elective share; g. Benefits for spouses an d dependent ch ildren of m embers of the m ilitary and veterans; h. In the event that a coup le separates, access to an orderly dissolution process fo r terminating the relationship, assuring an equitable division of the couple’s assets and debts, and adjudication of issues relating to custody, visitation, and support with respect to any children the couple may have. 50. The marriage ban not only denies Plaintiffs and other same-sex couples and their children access to protections, bene fits, rights, and responsibilitie s afforded to m arried persons and their children under state law, it also denies them eligibility for a host of federal rights and responsibilities that span the entire United St ates Code and federal regulations. Unm arried couples are denied recognition for virtually all purposes throughout the more than 1, 000 statutes and numerous federal regulations relating to m arriage — including laws th at pertain to Social
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Security benefits, housing, taxes, criminal sanctions, copyrights, and veterans’ benefits. Couples validly married in another ju risdiction and living in Indiana may qualify for som e federal benefits and protections, but the language of certa in statutes and regulati ons, such as veterans’ spousal benefits and Social Secu rity survivor benefits, referen ces couples married under the law of their state of residence or dom icile. Many of these deprivations drain fam ily economic resources, causing financial harm not only to same-sex couples but to their children as well.
51. In addition to cau sing the tang ible harms listed above, P laintiffs are denied the unique social recogn ition that m arriage conveys. W ithout access to the fa miliar language and legal label of marriage, Plaintiffs are unable instantly or adequately to communicate to others the depth and permanence of their commitment or to obtain respect for that commitment as others do simply by invoking their married status.
52. Although the Plaintiff couples are in co mmitted relationships, they and other same-sex couples are denied the stabilizing effects of marriage, which help keep couples together during times of crisis or conflict.
53. The substantive and dignitary inequities imposed on committed same-sex couples include particular harms for sam e-sex couples’ children, who are eq ually deserving of the stability, permanence, and legitimacy that children of different-sex spouses enjoy. The m arriage ban denies child ren of sam e-sex couples the dignity, legitimacy, rights, benefits, support, security, and obligations conferred on children whose parents are married. Children of same-sex couples must combat the common assum ption, reinforced by Indiana law, th at as members of a family headed by an unmarried couple, their bonds are impermanent, insubstantial, and unworthy of equal dignity and legitim acy because the c ouple has n ot made a m arital commitment and taken on the obligations of marriage. Civil marriage affords official sanctuary to the family unit,
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offering parents and children a familiar and public means of demonstrating to third parties a legal basis for th e parent-child relationship. By denying same-sex couples access to m arriage, the State reinforces the view, held by some, that the family bonds that tie same-sex parents and their children are less consequential, enduring, and m eaningful than those of different-sex parents and their children. Same-sex parents raising children in Indiana cannot invoke their status as married in order to communicate to th eir own children and others the depth and perm anence of their commitment to each other in terms that society, and even young children, readily understand. Consequently, the child Plaintiffs and other children of same-sex couples are left to grow up with the message that their parents and f amilies are inferior to others and tha t they and their par ents do not deserve the same societal recognition and respect.
54. Because same-sex parents and their child ren thus are dep rived of the fam ily security that inheres in a ready and fam iliar method of communicating to others the significance and permanence of their f amilial relationships, they must live with the vulnerability and s tress inflicted by the ever-present possibility that others may question their familial relationships — in social, educational, and m edical settings and in moments of crisis — in a way that spouses and their children can avoid by simple reference to being married.
55. Children of sam e-sex couples are less le gally secure and econom ically situated than children whose parents are able to m arry, including because of expenses incurred in attempting to create legal protections that approx imate some of those that are automatic through marriage, protections that are far inferior to th e legal protections afforded through m arriage, and because their fam ilies are denied the streng thening effect that m arriage can prov ide to the ir parents’ relationships.
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56. Children from a young age understand that m arriage signifies an enduring fa mily unit and, likewise, understand when the State has deemed a class of families as less worthy than other families, undeserving of m arriage, and no t entitled to the sam e societal reco gnition and support as other families. The State has no ad equate interest to justify marking the children of same-sex couples with a badge of inferiority th at invites disrespect in school, on the playground, and in every other sphere of their lives.
57. The government is a powerful teach er of discrimination to others. By decreeing that the relationships of sam e-sex couples must be ignored in I ndiana and enforcing that policy, the State and Defendants inform all persons wi th whom same-sex couples interact, including those couples’ own children, that their rela tionships are less worthy than others. Bearing the imprimatur of the governm ent, the State’s m arriage ban, which relegates same-sex couples and their children to a les ser status, encourages others to follow the governm ent’s example in discriminating against them.
58. The State’s marriage ban, and Defendants’ enforcement of it, causes many private entities such as banks, insurers, and even health clubs to define “family” for purposes of an array of benefits and protections in ways that exclude sam e-sex couples and their children from important safety nets, such as private em ployer-provided health insurance for fam ily members. The State also encou rages disrespect of co mmitted same-sex couples and th eir children, including Plaintiffs, by others in workplaces, schools, businesses, and other major arenas of life in ways that would be less likely to occur and mo re readily corrected if marriage were available to same-sex couples.
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D. The Marriage Ban Is Not Even Rationally Related

to a Le gitimate

Government Purpose, Let Alone Substantially Related to an I mportant

Government Purpose o r Narrowly Tailored to a Compelling Gov ernmental

Purpose.

59. No legitimate — let alo ne important or compelling — inter est exists to exclude

same-sex couples from marriage. An individu al’s capacity to establ ish a loving and enduring

relationship does not depend upon sexual orientation or his or her sex in relation to his or her

committed life partner, nor is there any leg itimate interest in preventing same-sex couples and

their children from belonging to fam ilies headed by a m arried couple or in deny ing them the

spousal protections marriage provides.

60. Neither history nor tradition can justify the marriage ban. Marriage has rem ained

a vital and enduring institu tion despite undergoing significant changes over tim e to m eet

changing social and ethical needs, including by th e elimination of many former requirements of

marriage that we now recognize as discriminatory or otherwise impermissible — such as race-

based entry requirem ents and gendered restrictions that historically were consid ered integral

aspects of marriage. Indiana is not confined to historic notions of equality, and no excuse for the

State’s discriminatory restriction can be found in the pedigree of such discrimination.

61. The Supreme Court has made clear that the law cannot, directly or indirectly, give

effect to private biases, and expressly rejected moral disapproval of lesbian and gay relationships

as a legitimate justification for a law.

62. Excluding same-sex couples from marriage does nothing to protect or enhance the

rights of different-sex couples. Different-sex co uples will continue to enjoy the sam e rights and

status conferred by marriage regardless of whether same-sex couples may marry.

63. Although the State has a valid interest in protecting the public fiscally, it may not

pursue that interest by m aking invidious distinctions betw een classes of its citizens without

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adequate justification. Moreover, the State has no fiscal justific ation here for denying sam e-sex couples the freedom to marry because the State would generate additional revenues by allowing same-sex couples to marry and to be recognized as married.
64. The State’s interest in child welfare is affirmatively harmed — not furthered — by the marriage ban. The m arriage ban injures same-sex couples’ children without offering any benefit to other children.
65. Barring same-sex couples from marriage does not prevent same-sex couples from raising children together. Sa me-sex couples in Indiana can and do bear children through use of reproductive technology that is av ailable to sam e-sex couples a nd different-sex couples alike, and bring children into their fam ilies through fo ster care and adoptio n. Procreation is not a requirement of m arriage, and m any married people choose not to have children while m any unmarried people procreate. I ndiana has never restricted m arriage to those capable of or intending to procreate, nor would it be constitutionally permissible to do so.
66. There is no valid basis for the State to assert a preferen ce for parenting by different-sex couples over sam e-sex couples. B ased on more than thirty years of research, the scientific community has reached consensus that children raised by same-sex couples are just as well-adjusted as children raised by different-sex couples. This consensus has been recognized by every major professional organization dedicated to children’s health and welfare, including the American Academy of Pediatrics, the Am erican Psychological Asso ciation, the Am erican Medical Association, the National Association of Social Workers, and the Child Welfare League of America.
67. There is not even a rational basis for fa voring parenting by heterosexual couples over gay and lesb ian couples. See, e.g., De Boer v. Sn yder, No. 12-CV-10285, slip op. at 24
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(E.D. Mich. Mar. 21, 2014) (finding “no logical connection between banning same-sex marriage and providing children with an ‘optim al environment’ or achieving ‘optim al outcomes’” ); De Leon v. Perry, —F. Supp. 2d—, 2014 WL 715741, at *14 (W.D. Tex. Feb. 26, 2014) (finding no “evidentiary support for [defenda nts’] assertion that denying marriage to sam e-sex couples positively affects childrearing,” and “agree[ing] with other district courts that ha ve recently reviewed this issue and concl ud[ing] that there is no rational connection between Defendants’ assertion and the legitim ate interest of successful childrearing”); see also id. (concluding that Texas’s same-sex marriage ban “ causes needless stigmatization and hum iliation for children being raised by the loving sam e-sex couples being targeted”); Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 980 (N.D. Cal. 2010) (finding that th e research supporting the conclusion that “[c]hildren raised by gay or le sbian parents are as likely as children raised by heterosexual parents to b e healthy, successful an d well-adjusted” is “accepted beyon d serious debate in the field of developm ental psychology”), aff’d sub nom , Perry v. Brown , 671 F.3d 1052 (9th C ir. 2012), vacated for lack of standing sub nom , Hollingsworth v. P erry, No. 12-144, 2013 WL 3196927 (U.S. June 26, 2013); In re Adoption of Doe , 2008 WL 5006172, at *20 (Fla. Cir. Ct. Nov. 25, 2008) (“[B]ased on the robust nature of the evidence available in the field, this Court is satisfied that the issue is so far beyond dispute that it would be irrational to hold otherwise; the best interests of children are not preserved by prohibiting homosexual adoption.”), aff’d sub nom, Florida Dep’t of Children & Families v. Adoption of X.X.G. , 45 So. 3d 79 (Fla. Dist. Ct. App. 2010); Howard v. Child Welfare Agency Review Bd., Nos. 1999-9881, 2004 WL 3154530, at *9 and 2004 WL 3200916, at *3-4 (Ark. Cir. Ct. Dec. 29, 2004) (holding based on factual findings regarding the well-being of children of gay parents that “there was no rational relationship between the [exclusion of gay people from becoming foster parents] and the health, safety, and
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welfare of the foster children”), aff’d sub nom, Dep’t of Human Servs. v. Howard , 238 S.W.3d 1 (Ark. 2006).
68. Excluding same-sex couples from marriage harms their children, including by branding their families as inferior and less deserving of respect and by e ncouraging private bias and discrimination. Denying same-sex couples the equal dignity and status of m arriage humiliates the children now being raised by same-sex couples, and makes it more difficult for the children to understand the integrity and closeness of their own fa mily and its concord with other families in their community and in their daily lives.
69. Excluding same-sex couples from civil m arriage will no t make the children of different-sex spouses more secure . Different-sex spouses’ childr en will continue to enjoy the benefits that flow from their parents’ m arriage, regardless of whethe r same-sex couples are permitted to marry. The m arriage ban has no eff ect on the choices d ifferent-sex couples make about such profound issues as whet her to marry, whether to have children, or whether to raise their children within marriage.
70. The State’s interest in the welfare of children parented by same-sex couples is as great as its interest in the welfare of any other children. The family security that comes from the State’s official recogn ition and support is no less im portant for same-sex parents and the ir children than it is for different-sex parents and their children.
71. Excluding same-sex couples from marriage does nothing to protect or enhance the rights of different-sex spouses. Different-sex spouses will continue to enjoy the same rights and status conferred by marriage, regardless of whether same-sex couples may marry, unimpaired by the acknowledgment that this freedom belongs equally to lesbians and gay men.
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E. Niki Quasney and Amy Sandler’s Need for a Temporary Restraining Order and/or Preliminary Injunction.
72. Niki Quasney and Amy Sandler have been in a long-term committed relationship for over thirteen years. They were m arried in the Commonwealth of Massachusetts on August 29, 2013.
73. Niki has Stage IV ovarian cancer that she has battled f or over four years, including suffering the pain and experience of three su rgeries, countless hospital visits, and aggressive chemotherapy treatment. Indeed, Niki most recently completed a six-cycle course of chemotherapy (11 infusions) over the last few months. Unless th is Court acts, Niki and Amy will likely be permanently denied the benefits — both tangible and dignitary — of recognition of their legal m arriage. For exam ple, unless their marriage is recognized, they may face discrimination in hospital settings, denial of a death certificate listing Amy as Niki’s spouse, challenges accessing saf ety nets for a surviving spouse, and ot her harms, including difficulty establishing eligibility for Social Security ben efits as a surviving spouse. In addition , Niki and Amy have two young children. If this Court do es not act, Niki and Amy’ s family will never be recognized where they live as form ally united under State law, and the fina ncial security of their two children will remain uncertain.
74. The Indiana marriage ban is unconstitutional. Defendants should be immediately enjoined from enforcing the ban as applied to Niki and Amy because they have an urgent need to have their m arriage recognized du e to extraordinary circum stances: Niki’s lif e-threatening illness.
75. Niki and Amy are suffering irreparable ha rm as a result of the State failing to recognize their legal marriage, and there is thus no adequate remedy at law. There is no harm to the State of Indiana from granting a temporary restraining order and/or a preliminary injunction
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prohibiting enforcement of the marriage ban as applied to Niki and Amy; conversely, as detailed above, the harm to Niki and Am y is severe. Prompt action by this C ourt ordering Defendants immediately to stop enf orcing the Indiana marriage ban as applied to Niki and Amy will s erve the public interest.
CLAIMS FOR RELIEF COUNT I:
Deprivation of Due Process U.S. Const. Amend. XIV (42 U.S.C. § 1983)
76. Plaintiffs incorporate b y reference a ll of the preced ing paragraphs of this Complaint as though fully set forth herein.
77. Plaintiffs state this cause of action agai nst Defendants in their official capacities for purposes of seeking declaratory and injunctive relief.
78. The Fourteenth Am endment to the Un ited States Cons titution, enforceable pursuant to 42 U.S.C. § 1983, provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1.
79. The right to m arry the unique and irrepl aceable person of one’s choice and to direct the course of one’s life in this intimate realm without undue government restriction is one of the fundam ental liberty inte rests protected by the Due Proce ss Clause of the Fourteenth Amendment. Indeed, the essence of the fundam ental right to m arry is f reedom of personal choice in selecting one’s spouse.
80. Indiana Code Sections 31-11-1-1(a), 31-11-1-1-(b), and all other sources of Indiana law that p reclude marriage for same-s ex couples or prevent recognition of their marriages violate the du e process guarantee of the Fourteenth Amendment, both facially and as applied. Defendants’ actions to enforce the m arriage ban directly and impermissibly infringe on
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adult Plaintiffs’ choice of whom to m arry, interfering with a core, lif e-altering, and intim ate personal choice.
81. The Due Process Claus e also pro tects choices central to p ersonal dignity and autonomy, including each individual’s rights to fa mily integrity and asso ciation. Defendants’ actions to enforce the m arriage ban directly a nd impermissibly infringe on adult Plaintiffs’ deeply intimate, personal, and private decisions regarding fa mily life and preclude adult Plaintiffs from obtaining full liberty, dignity, and security for themselves and their families.
82. The DEFENDANT CLERKS and DEFENDANT VANNESS’ duties and actions to ensure compliance with Indiana’s discriminatory marriage ban by, for example, denying samesex couples marriage licenses, violate adult Plain tiffs’ fundamental right to marry and the rights protected under the Fourteenth Am endment to the United States Constitution to liberty, dignity, autonomy, family integrity, association, and due pr ocess. As the Indian a Attorney General, DEFENDANT GREG ZOELLER is responsible for enforcing and/or defending Indiana’s laws, including Indiana’s discrim inatory marriage ban. Enforcement and/or defense of the m arriage ban violates adult P laintiffs’ fundamental right to m arry and the rights protected under the Fourteenth Amendment to the United States C onstitution to liber ty, dignity, auton omy, family integrity, association, and due process of Plaintiffs.
83. Defendants cannot satisfy the Due Proce ss Clause’s decree that governm ent’s denial of a fundam ental right or substantial infringement of a lib erty interest may be sustained only upon a showing that the burden is narrowly tailored to serve a com pelling, or even important governmental interest, as the marriage ban is not even tailored to further any legitimate interest at all.
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84. Thus, Defendants, acting under color of st ate law, are depriving P laintiffs of rights secured by the Due Process Clause of th e Fourteenth Amendment to the United States Constitution in violation of 42 U.S.C. § 1983.
COUNT II: Deprivation of Equal Protection
U.S. Const. Amend. XIV (42 U.S.C. § 1983)
85. Plaintiffs incorporate by reference and re-allege all of the preceding paragraphs of this Complaint as though fully set forth herein.
86. Plaintiffs state this cause of action agai nst Defendants in their official capacities for purposes of seeking declaratory and injunctive relief.
87. The Fourteenth Am endment to the Un ited States Cons titution, enforceable pursuant to 42 U.S.C. § 1983, provides that no state shall “de ny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1.
88. Indiana Code Sections 31-11-1-1(a), 31-11-1-1(b), and all other sources of Indiana law that preclude m arriage for sam e-sex couples or prevent r ecognition of marriages violate the equal protection guarantee of the Fourteenth Amendment both facially and as applied to Plaintiffs.
89. THE DEFENDANT CLERKS’ and DEFENDANT VANNESS’ duties and actions to ensure com pliance with Indiana’s discriminatory marriage ban by, for exam ple, denying same-sex couples marriage licenses, violates the right of Plaintiffs to equal protection by discriminating impermissibly on the basis of adu lt Plaintiffs’ sexual orientation and sex, and on the bases of the child Plaintiffs’ parents’ sex, sexual orientation, and marital status, denying such children the dignity, leg itimacy, security, suppo rt, and protections available to ch ildren whose parents can m arry. Indiana Attorney Ge neral DEFENDANT GREG ZOELLER’s duties and
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actions to enforce and defend Indiana’s d iscriminatory marriage ban violates the right of

Plaintiffs to equal protection by discriminating impermissibly on the basis of adult Plaintiffs’

sexual orientation and sex, and on the bases of

the child Plaintiffs’ parents’ sex, sexual

orientation, and marital status.

90. Same-sex couples, such as the Plaintiff couples, are identical to dif ferent-sex

couples in all of the characteristics relevant to marriage.

91. Same-sex couples m ake the sam e commitment to one another as different-sex

couples. Like different-sex couples, same-sex couples fall in love, build their lives together, plan

their futures together, and hope to grow old t ogether. Like different-sex couples, sa me-sex

couples support one another em otionally and financially and take care of one another physically

when faced with inju ry or illness. Plaintiff couples seek to m arry for the sam e emotional,

romantic, and dignitary reasons and to p rovide the same legal shelter to the ir families as

different-sex spouses.

92. Discrimination Based on Sexual Orientation. The marriage ban targets lesbian

and gay Indiana residents as a class for exclusion from marriage and discriminates against each

adult Plaintiff based on his or her sexual orientation, both facially and as applied.

93. The exclusion of Plain tiffs from marriage based on adult Plaintiffs’ sexual

orientation subjects Defendants’ conduct to strict or at l east heightened scrutiny, which

Defendants’ conduct cannot withstand because the exclusion does not even serve any legitimate

governmental interests, let alon e any i mportant or com pelling interests, nor does it serve any

such interests in an adequately tailored manner.

94. Lesbians and gay m en have suffered a l ong and painful history of discrim ination

in Indiana and the United States.

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95. Sexual orientation bears no re lation to an ind ividual’s ability to con tribute to

society.

96. Sexual orientation is a core, de fining trait that is so f undamental to one’s identity

and conscience that a p erson may not legitimately be required to ab andon it (even if that were

possible) as a condition of equal treatment.

97. Sexual orientation generally is fixed at an early age and highly resistant to change

through intervention. No credible evidence supports the notion that such interventions are either

effective or safe; indeed , they often are harm ful and dam aging. No m ainstream mental health

professional organization approve s interventions that attem pt to change sexual orientation, and

virtually all of the m have a dopted policy statem ents cautioning professionals and the public

about these treatments.

98. Lesbians and gay m en are a discrete and insular minority, and ongoing prejudice

against them continues seriously to curtail the operation of those political processes that m ight

ordinarily be relied upon to protect minorities.

99. Lesbians and gay m en lack express statut ory protection against discrim ination in

employment, public accommodation, and housing at th e federal level and in m ore than half the

states, including Indiana; are system atically underrepresented in federal, state, and local

democratic bodies; have been stripped of

the right to m arry through numerous state

constitutional amendments and are currently not permitted to marry in more than 3 0 states; and

have been targeted across the nation through the voter initiative process m ore than any other

group.

100. Discrimination Based on Sex. Indiana’s marriage ban discrim inates against

adult Plaintiffs on the basis of th eir sex, bo th facially and as a pplied, barring Pl aintiffs from

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marriage or from being recognized as validly married solely because each of the adu lt Plaintiffs wishes to marry a life p artner of the sam e sex. The sex-based restriction is plain on the face of Indiana’s laws, which stipulate that “[o]nly a female may marry a male. Only a male may marry a female,” I.C. § 31-11-1-1(a), and prohibit rec ognition of m arriages in other states “between persons of the same gender,” I.C. § 31-11-1-1(b).
101. Because of these s ex-based classifications, Marilyn Rae Bas kin, for exa mple, is precluded from marrying Esther Fuller because Rae is a woman and not a man; were Rae a man, she could marry Esther.
102. Indiana’s marriage ban also im permissibly enforces confor mity with sex stereotypes by excluding adult Plaintiffs from marrying the one person each adult Plaintiff loves because adult Plaintiffs have failed to confor m to the sex-b ased stereotypes that men should marry women and that women should marry men.
103. The exclusion of adult Plaintiffs from marriage based on their sex, and the marriage ban’s requirement that adult Plaintiffs behave in conformity with sex-based stereotypes as a condition of being able to m arry, cannot survive the heightened scrutiny required for sexbased classifications.
104. Discrimination Based on Parental Status. The marriage ban im permissibly classifies children, including the ch ild Plaintiffs, on the bases of their parents’ sex, sexual orientation, and marital status, denying such children the dignity, legitimacy, security, support, and protections available to children whose parents can marry. The State’s differential treatment of children based upon their parent s’ sex, sexual orientation, a nd marital status cannot survive the heightened scrutiny required for classifications based on parental status.
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105. Discrimination With Resp ect to Fundamental Rights and Liberty Interests Secured by the Due Process Clause. The marriage ban discrim inates against adu lt Plaintiffs based on sexual orientation and sex with respect to access to the fundamental right to m arry and against all Plaintiffs with resp ect to their liberty interests in dignity, autonom y, and fa mily integrity and association. Differe ntial treatment with respect to exercise of fundamental rights and liberty interests subjects Defendants’ conduct to strict or at least he ightened scrutiny, which Defendants’ conduct cannot withstand.
DECLARATORY AND INJUNCTIVE RELIEF 28 U.S.C. §§ 2201 and 2202; Federal Rules of Civil Procedure 57 and 65 106. Plaintiffs incorporate by reference and re-allege all of the preceding paragraphs of this Complaint as though fully set forth herein. 107. This case presents an actual controversy because Defendants’ present and ongoing denial of equal treatment and liberty to Plaintiffs subjects them to serious and i mmediate harms, warranting the issuance of a declaratory judgment. 108. Plaintiffs seek prelim inary and/or perm anent injunctive r elief to protect their constitutional rights and avoid the injuries described above. In addition, Plaintiffs Niki Quasney and Amy Sandler seek a tem porary restraining order and/or a pr eliminary injunction against the Defendants. A favorable decision enjoinin g Defendants would redress and prevent the irreparable injuries to Plaintif fs identified herein, for which Plaintiffs have no adequate rem edy at law. 109. The State will incur little to no burden in allowing same-sex couples to marry and recognizing out-of-state m arriages, whereas the hardship for Plai ntiffs of being denied equal protection and liberty is severe, sub jecting them to an irrep arable denial of their constitu tional rights. The balance of hardships thus tips strongly in favor of Plaintiffs.
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PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court enter judgment: A. Declaring that th e provisions and enforcement by Defen dants of In diana Code Sections 31-11-1-1(a), 31-11-1-1(b), and any other sources of Indiana law that exclude same-sex couples from marriage or from recognition of m arriages entered into in another jurisdiction violate Plaintiffs’ rights under the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment to the United States Constitution; B. Preliminarily and permanently enjo ining enforcement by Defendants of Indiana Code Sections 31-11-1-1(a), 31-11-1-1(b), and any other sources of state law that exclude sam esex couples from marriage or refu se recognition to th e marriages of sam e-sex couples entered into in another jurisdiction; C. Requiring the DEFENDANT CL ERKS in their official cap acities to accept applications and issue m arriage licenses to same-sex couples on th e same terms as different-sex couples; D. Requiring the DEFENDANT C OMMISSIONER OF INDIANA STATE DEPARTMENT OF HEALTH to change all appropria te forms, certificates, policies, and instructions in order to recognize marriage applications and marriages of same-sex couples. E. Issuing a tem porary restraining order and/or preliminary injunction against Defendants for the benefit of Plaintiffs Niki Quasney and Amy Sandler:
i. enjoining Defendants and all those acting in concert from enforcing Indiana’s laws prohibiting recognition of Plaintiffs Niki Q uasney and Amy Sandler’s legal out-of-state marriage;
ii. should Plaintiff Niki Quasney pass away in Indiana, o rdering DEFENDANT COMMISSIONER OF INDIANA STATE DEPARTMENT OF HEALTH and all 33

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those acting in concert to issue to Plaintiff Amy Sandler a death certificate that records her marital status as “ married” or “ widowed” and that lists he r as the “surviving spouse;” said order shall include a requirem ent that Defendant VanNess issue directives to local health departm ents, funeral homes, physicians, coroners, medical examiners, and others who assist with the co mpleting of Indiana death certificates explaining their duties under the order of this Court; F. Awarding Plaintiffs their costs, expenses, and reasonable attorneys’ fees pursuant to, inter alia, 42 U.S.C. § 1988 and other applicable laws; and, G. Granting such other and further relief as the Court deems just and proper. H. The declaratory and injunctive relief reque sted in this acti on is sought against each Defendant; each Defendant’s officers, employees, and agents; and against all persons acting in cooperation with any Defendant or under a Defendant’s supervision, direction, or control.
DATED: March 31, 2014 Respectfully submitted, /s/ Barbara J. Baird_____________ Barbara J. Baird LAW OFFICE OF BARBARA J. BAIRD 445 North Pennsylvania Street, Suite 401 Indianapolis, Indiana 46204-0000 (317) 637-2345 bjbaird@bjbairdlaw.com Paul D. Castillo LAMBDA LEGAL DEFENSE & EDUCATION FUND, INC. 3500 Oak Lawn Ave., Suite 500 Dallas, Texas 75219 (214) 219-8585 pcastillo@lambdalegal.org
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Camilla B. Taylor LAMBDA LEGAL DEFENSE & EDUCATION FUND, INC. 105 West Adams, Suite 2600 Chicago, Illinois 60603 (312) 663-4413 ctaylor@lambdalegal.org Jordan M. Heinz Brent P. Ray Dmitriy G. Tishyevich Melanie MacKay Robyn R. English KIRKLAND & ELLIS LLP 300 North LaSalle Street Chicago, Illinois 60654 (312) 862-2000 jordan.heinz@kirkland.com brent.ray@kirkland.com dmitriy.tishyevich@kirkland.com melanie.mackay@kirkland.com robyn.english@kirkland.com
35

 
 Case 1:14-cv-00355-RLY-TAB Document 65 Filed 05/08/14 Page 1 of 14 PageID #: 713

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

ENTRY ON PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

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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 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, 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.
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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
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 1806. 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).
“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
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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 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, 134 S.Ct. 893 (2013), they argue preliminary injunctive relief is inappropriate.
A. Standing 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 (2008). Defendants argue that the harms alleged by Plaintiffs as arising from Indiana’s non-recognition statute are not concrete and particularized, nor fairly traceable to them. Thus, according to Defendants, a preliminary injunction cannot favorably address Plaintiffs’ harms.
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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 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, 134 S.Ct. 893 (Jan. 6, 2013). 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.
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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.
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 Amendment’s Due Process Clause and Equal Protection Clause. 1. Equal Protection Clause 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.” According 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
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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, 134 S.Ct. 2675 (2013), district courts from around the country have rejected the idea that a state’s non-recognition 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, 2014 WL 997525 at * 6; 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, No.1:12cv-10285, 2014 WL 1100794, * 2 (E.D. Mich. Mar. 21, 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, 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, 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
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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 does not need to determine whether sexual orientation discrimination merits a higher standard of constitutional review.
2. Due Process Clause 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, 2014 WL 1418395, * 9 (S.D. Ohio Apr. 14, 2014) (applying intermediate scrutiny where Ohio is “intruding into and in fact erasing” the marriage relationship); see also De Leon v. Perry, No. SA-13-CA-00982-OLG, 2014 WL 715741, ** 21-24 (W.D. Tex Feb. 26, 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”).
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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, 41 N.E.2d 801 (Ind. 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, 98 N.E.2d 250, 304 (Ind. 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 marraiges 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 (1967) (“to deny this fundamental freedom on so unsupportable a basis as the racial classification 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.
D. Are any injuries to Plaintiffs irreparable? “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
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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. Chosum 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 2014, Niki will have reached the average survival rate for her disease.
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
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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-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, (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,
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tangible injuries that are fairly traceable to Defendants and can be remedied by a preliminary injunction.
E. Balance of Harms and Public Interest 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 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. 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)). The State does not have a valid interest in upholding and applying a law that violates these constitutional guarantees. See Joeiner 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
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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.
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 Plaintiff Amy Sandler as the “surviving spouse.” This order shall require that Defendant VanNess issue directives to local health departments, funeral
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.
13

Case 1:14-cv-00355-RLY-TAB Document 65 Filed 05/08/14 Page 14 of 14 PageID #: 726

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 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.

SO ORDERED this 8th day of May 2014.

s/ Richard L.Young________________ R__IC__H_A__R_D___L_. _Y_O__U__N_G__, _C_H__I_E_F__JU__D__G_E URnICitHedASRtDatLes. YDOisUtrNicGt ,CoCuHrItEF JUDGE SUonuitehderSntaDteisstDriicstroicft ICnoduiartna Southern District of Indiana

Distributed Electronically to Registered Counsel of Record.

14

 
 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.; and

)

AMY SANDLER and NIKOLE

)

QUASNEY,

)

)

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, 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

ENTRY ON PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER
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 1

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.).
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 100 tumors throughout Niki’s abdomen, including her liver, 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
1 Massachusetts allows for same-sex couples to marry. 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).
2

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).
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
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 Abott 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 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
3

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 (1972). The Plaintiffs here have shown cognizable injuries that a TRO can remedy because Niki drives across state lines to 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).
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
4

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 Texas v. Lawrence, 539 U.S. 558 (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.
B. Temporary Restraining Order i. Some Likelihood of Success on the Merits
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, No. 3:13-cv-01159, 2014 WL 997525 (M.D. Tenn. Mar. 14, 2014); De Leon v. Perry, No. SA-13-CA-00982, 2014 WL 715741 (W.D. Tex. Feb. 26, 2014); Lee v. Orr, No. 1:13-cv-08719, 2014 WL 683680 (N.D. Ill. Feb. 21, 2014); Bostic v. Rainey, No. 2:13cv0395, 2014 WL 561978 (E.D. Va. Feb. 13, 2014); Bourke v. Beshear, No.3:13-cv750-H, 2014 W.D. Ky. Feb. 12, 2014); Kitchen v. Hubert, 961 F. Supp. 2d 1181 (D. Utah 2013); Bishop v. United States ex. rel. Holder, No. 04-cv-848, 2014 WL 116013 (N.D. Okla. Jan. 14, 2014). In particular, Plaintiffs rely on two cases where temporary relief
5

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, No. 13C8449, 2013 WL 6355918 (N.D. Ill. Dec. 5, 2013) (granting a TRO to allow same-sex couple to marry before the effective date of newly enacted statute authorizing same-sex marriages because one partner was terminally ill). The 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, 133 S.Ct. 2675 (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, 41 N.E.2d 801 (Ind. 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.
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 (1967) (invalidating
6

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 government-recognized 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 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, No.1:12-cv-10285, 2014 WL 1100794, *2 (E.D. Mich. Mar. 21, 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,
7

Indiana recognizes the marriages of opposite-sex couples that occurred in Florida that are well past their procreative years.3 This philosophy does not apply to them, so under the state’s philosophy, 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.
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.
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
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.
8

of their marriage brings financial benefits, health care decision benefits, and death benefits.4
iii. Irreparable Harm if the Order is Denied The court finds Plaintiffs suffer a cognizable and 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.
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’
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.
9

irreparable harm. Defendants 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 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
10

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. SO ORDERED this 18th day of April 2014.
R___I_C___H___A____R__D____L__.___Y___O___U___N___G__,__C____H__I__E__F____J_U____D__G____E_ URnIiCteHdASRtDateLs. DYiOstUriNctGC, oCuHrtIEF JUDGE SUonuittheedrSntaDteistDricisttroifctICndoiuarnt a
Southern District of Indiana
Distributed Electronically to Registered Counsel of Record.
11

 
 Case 1:14-cv-00355-RLY-TAB Document 89 Filed 06/25/14 Page 1 of 36 PageID #: 1296

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

Case 1:14-cv-00355-RLY-TAB Document 89 Filed 06/25/14 Page 2 of 36 PageID #: 1297

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

Case 1:14-cv-00355-RLY-TAB Document 89 Filed 06/25/14 Page 3 of 36 PageID #: 1298

Plaintiffs,

)

)

vs.

)

)

MIKE PENCE, in his official capacity as )

GOVERNOR OF THE STATE OF

)

INDIANA; BRIAN ABBOTT, CHRIS

)

ATKINS, KEN COCHRAN, STEVE

)

DANIELS, JODI GOLDEN, MICHAEL )

PINKHAM, KYLE ROSEBROUGH, and )

BRET SWANSON, in their official

)

capacities as members of the Board of

)

Trustees of the Indiana Public Retirement )

System; and STEVE RUSSO, in his

)

official capacity as Executive Director of )

the Indiana Public Retirement System,

)

)

Defendants. )

1:14-cv-00406-RLY-MJD

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

Case 1:14-cv-00355-RLY-TAB Document 89 Filed 06/25/14 Page 4 of 36 PageID #: 1299
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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Case 1:14-cv-00355-RLY-TAB Document 89 Filed 06/25/14 Page 5 of 36 PageID #: 1300
(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

Case 1:14-cv-00355-RLY-TAB Document 89 Filed 06/25/14 Page 6 of 36 PageID #: 1301
www.in.gov/judiciary/2605.htm. It is a Class D Felony to provide inaccurate information in the marriage license or to provide inaccurate information about one’s physical condition.3 See Ind. Code § 31-11-11-1; Ind. Code § 31-11-11-3. The clerk may not issue a license if an individual has been adjudged mentally incompetent or is under the influence of alcohol or drugs. See Ind. Code § 31-11-4-11.
The marriage license serves as the legal authority to solemnize a marriage. See Ind. Code § 31-11-4-14. The marriage may be solemnized by religious or non-religious figures. See Ind. Code § 31-11-6-1. If an individual attempts to solemnize a marriage in violation of Indiana Code Chapter 31-11-1, which includes same-sex marriages, then that person has committed a Class B Misdemeanor. See Ind. Code § 31-11-11-7.
In addition to prohibiting same-sex marriages, Indiana prohibits bigamous marriages and marriages between relatives more closely related than second cousins unless they are first cousins over the age of sixty-five. See Ind. Code § 31-11-1-2 (cousins); see Ind. Code § 31-11-1-3 (polygamy). Nevertheless, when evaluating the legality of marriages, the Indiana Supreme Court found that “the presumption in favor of matrimony is one of the strongest known to law.” Teter v. Teter, 101 Ind. 129, 131-32 (Ind. 1885). In general, Indiana recognizes out-of-state marriages that were valid in the
3 In an official opinion concerning the authority of clerks to issue marriage licenses and only referencing one occasion where they cannot –same-sex marriages, the Attorney General appeared to consider inaccurate physical information to include gender. See 2004 Ind. Op. Att’y Gen. No. 4 (Apr. 29, 2004). The Attorney General noted that a clerk can be charged with a misdemeanor for issuing a marriage license knowing the information concerning the physical condition of the applicant is false. See id.
6

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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
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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

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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,
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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.
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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

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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
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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.
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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

Case 1:14-cv-00355-RLY-TAB Document 89 Filed 06/25/14 Page 26 of 36 PageID #: 1321
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

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[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

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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

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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

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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

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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

Case 1:14-cv-00355-RLY-TAB Document 89 Filed 06/25/14 Page 32 of 36 PageID #: 1327
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

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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

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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

Case 1:14-cv-00355-RLY-TAB Document 89 Filed 06/25/14 Page 35 of 36 PageID #: 1330
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

Case 1:14-cv-00355-RLY-TAB Document 89 Filed 06/25/14 Page 36 of 36 PageID #: 1331
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

 
 !aaassseee: :     111444-­-­-222333888666                           DDDooocccuuummmeeennnt t: :     111222                                                      FFFi il leeeddd: :     000666/ /222777/ /222000111444                           PPPaaagggeeesss: :     222

UNITED  STATES  COURT  OF  APPEALS  FOR  THE  SEVENTH  CIRCUIT

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

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

June  27,  2014
No.:  14-­‐‑2386 No.:  14-­‐‑2387 No.:  14-­‐‑2388

ORDER
Before RICHARD  A.  POSNER,  Circuit  Judge
ANN  CLAIRE  WILLIAMS,  Circuit  Judge
DAVID  F.  HAMILTON,  Circuit  Judge
MARILYN  RAE  BASKIN,  et  al., Plaintiffs  -­‐‑  Appellees v. PENNY  BOGAN,  et  al., Defendants  -­‐‑  Appellants MIDORI  FUJII,  et  al.,   Plaintiffs  -­‐‑  Appellees v. COMMISSIONER  OF  THE  INDIANA  STATE  DEPARTMENT  OF REVENUE,  in  his  official  capacity,  et  al.,   Defendants  -­‐‑  Appellants PAMELA  LEE,  et  al., Plaintiffs  -­‐‑  Appellees v. BRIAN  ABBOTT,  et  al., Defendants  -­‐‑  Appellants

!aaassseee: :     111444-­-­-222333888666                           DDDooocccuuummmeeennnt t: :     111222                                                      FFFi il leeeddd: :     000666/ /222777/ /222000111444                           PPPaaagggeeesss: :     222

Page  2

            

      Nos.  14-­‐‑2386,  et  al.

  Originating  Case  Information:
District  Court  No:  1:14-­‐‑cv-­‐‑00355-­‐‑RLY-­‐‑TAB Southern  District  of  Indiana,  Indianapolis  Division District  Judge  Richard  L.  Young
  Originating  Case  Information:
District  Court  No:  1:14-­‐‑cv-­‐‑00404-­‐‑RLY-­‐‑TAB Southern  District  of  Indiana,  Indianapolis  Division District  Judge  Richard  L.  Young
  Originating  Case  Information:
District  Court  No:  1:14-­‐‑cv-­‐‑00406-­‐‑RLY-­‐‑MJD Southern  District  of  Indiana,  Indianapolis  Division District  Judge  Richard  L.  Young
Upon  consideration  of  the  EMERGENCY  MOTION  FOR  STAY  PENDING APPEAL,  filed  on  June  27,  2014,  by  counsel  for  the  appellants,
IT  IS  ORDERED  that  the  motion  is  GRANTED.  The  district  court'ʹs  order  dated 6/25/14  is  STAYED  pending  resolution  of  this  appeal.

form  name:  c7_Order_3J(form  ID:  177)

 
 Case: 14-2386 Document: 10

Filed: 06/27/2014 Pages: 2

United States Court of Appeals
For the Seventh Circuit Chicago, Illinois 60604

By the Court:

June 27, 2014

MARILYN RAE BASKIN, et al.,

] Appeal from the United

Plaintiffs-Appellees,

] States District Court

] for the Southern District

No. 14-2386

v.

] of Indiana, Indianapolis

] Division.

PENNY BOGAN, et al.,

]

Defendants-Appellants.

] No. 1:14-cv-00355-RLY-TAB

]

] Richard L. Young, Chief Judge.

-------------------------------------------------------------- ]

MIDORI FUJII, et al.,

] Appeal from the United

Plaintiffs-Appellees,

] States District Court

] for the Southern District

No. 14-2387

v.

] of Indiana, Indianapolis

] Division.

COMMISSIONER OF THE INDIANA STATE ]

DEPARTMENT OF REVENUE, in his

] No. 1:14-cv-00404-RLY-TAB

official capacity, et al.,

]

Defendants-Appellants.

] Richard L. Young, Chief Judge.

-------------------------------------------------------------- ]

PAMELA LEE, et al.,

] Appeal from the United

Plaintiffs-Appellees,

] States District Court

] for the Southern District

No. 14-2388

v.

] of Indiana, Indianapolis

] Division.

BRIAN ABBOTT, et al.,

]

Defendants-Appellants.

] No. 1:14-cv-00406-RLY-MJD

]

] Richard L. Young, Chief Judge.

- over -

Case: 14-2386 Document: 10

Filed: 06/27/2014 Pages: 2

Nos. 14-2386, 14-2387 and 14-2388

O R D E R

Page 2

The court, on its own motion, orders that these appeals are CONSOLIDATED for purposes of briefing and disposition.

The briefing schedule is as follows:

1. The appellants shall file a single, consolidated brief and required short appendix on or before August 6, 2014.

2. The appellees shall file a single, consolidated brief on or before September 5, 2014.

3. The appellants shall file a single, consolidated reply brief, if any, on or before September 19, 2014.

Important Scheduling Notice!
Notices of hearing for particular appeals are mailed shortly before the date of oral argument. Criminal appeals are scheduled shortly after the filing of the appellant’s main brief; civil appeals after the filing of the appellee’s brief. If you foresee that you will be unavailable during a period in which your particular appeal might be scheduled, please write the clerk advising him of the time period and the reason for such unavailability. Session data is located at http//www.ca7.uscourts.gov/cal/calendar.pdf. Once an appeal is formally scheduled for a certain date, it is very difficult to have the setting changed. See Circuit Rule 34(e).

 
 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.
______________________

Case: 14-2386 Document: 212

Filed: 09/04/2014 Pages: 40

2

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

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

Case: 14-2386 Document: 212

Filed: 09/04/2014 Pages: 40

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

3

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

Case: 14-2386 Document: 212

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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.

 
 Case: 1:14-cv-355 As of: 10/31/2017 01:57 PM EDT 1 of 15
MANDATE,CLOSED
U.S. District Court Southern District of Indiana (Indianapolis) CIVIL DOCKET FOR CASE #: 1:14−cv−00355−RLY−TAB

BASKIN et al v. BOGAN et al Assigned to: Judge Richard L. Young Referred to: Magistrate Judge Tim A. Baker Related Cases: 4:14−cv−00015−RLY−TAB
1:14−cv−00406−RLY−MJD
1:14−cv−00404−RLY−TAB
1:14−cv−00405−RLY−TAB
Case in other court: 7th Circuit, 14−02037 − Mandate
7th Circuit, 14−02386 − Mandate Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 03/10/2014 Date Terminated: 06/25/2014 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

MARILYN RAE BASKIN

represented by Barbara J. Baird THE LAW OFFICE OF BARBARA J BAIRD 445 North Pennsylvania Street Suite 401 Indianapolis, IN 46204 (317) 637−2345 Fax: (317) 637−2369 Email: bjbaird@bjbairdlaw.com ATTORNEY TO BE NOTICED

Brent Phillip Ray KIRKLAND & ELLIS LLP − Chicago 300 N. LaSalle Chicago, IL 60654 312−862−2000 Fax: 312−862−2200 Email: brent.ray@kirkland.com PRO HAC VICE ATTORNEY TO BE NOTICED

Camilla B. Taylor LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 11 West Adams Street Suite 2600 Chicago, IL 60603 312−663−4413 Fax: 312−663−4307 Email: ctaylor@lambdalegal.org PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher R. Clark LAMBDA LEGAL DEFENSE & EDUCATIONAL FUND, INC. 105 W. Adams Street Suite 2600 Chicago, IL 60603 312−663−4413 Fax: 312−663−4307 Email: cclark@lambdalegal.org PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:14-cv-355 As of: 10/31/2017 01:57 PM EDT 2 of 15

Jordan Heinz KIRKLAND & ELLIS LLP − Chicago 300 N. LaSalle Chicago, IL 60654 312−862−2000 Fax: 312−862−2200 Email: jordan.heinz@kirkland.com PRO HAC VICE ATTORNEY TO BE NOTICED

Paul D Castillo LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3500 Oak Lawn Avenue Suite 500 Dallas, TX 75219 214−219−8585 Fax: 214−219−4455 Email: pcastillo@lambdalegal.org PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff ESTHER FULLER

represented by Barbara J. Baird (See above for address) ATTORNEY TO BE NOTICED

Brent Phillip Ray (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Camilla B. Taylor (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher R. Clark (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jordan Heinz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Paul D Castillo (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff BONNIE EVERLY

represented by Barbara J. Baird (See above for address) ATTORNEY TO BE NOTICED

Brent Phillip Ray (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Camilla B. Taylor (See above for address)

Case: 1:14-cv-355 As of: 10/31/2017 01:57 PM EDT 3 of 15

PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher R. Clark (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jordan Heinz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Paul D Castillo (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff LINDA JUDKINS

represented by Barbara J. Baird (See above for address) ATTORNEY TO BE NOTICED

Brent Phillip Ray (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Camilla B. Taylor (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher R. Clark (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jordan Heinz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Paul D Castillo (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff DAWN LYNN CARVER

represented by Barbara J. Baird (See above for address) ATTORNEY TO BE NOTICED

Brent Phillip Ray (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Camilla B. Taylor (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher R. Clark

Case: 1:14-cv-355 As of: 10/31/2017 01:57 PM EDT 4 of 15

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

Jordan Heinz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Paul D Castillo (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff PAMELA RUTH ELEASE EANES

represented by Barbara J. Baird (See above for address) ATTORNEY TO BE NOTICED

Brent Phillip Ray (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Camilla B. Taylor (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher R. Clark (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jordan Heinz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Paul D Castillo (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff HENRY GREENE

represented by Jordan Heinz (See above for address) ATTORNEY TO BE NOTICED

Barbara J. Baird (See above for address) ATTORNEY TO BE NOTICED

Plaintiff AMY SANDLER

represented by Jordan Heinz (See above for address) ATTORNEY TO BE NOTICED

Barbara J. Baird (See above for address) ATTORNEY TO BE NOTICED

Plaintiff

Case: 1:14-cv-355 As of: 10/31/2017 01:57 PM EDT 5 of 15

GLENN FUNKHOUSER

represented by Jordan Heinz (See above for address) ATTORNEY TO BE NOTICED

Barbara J. Baird (See above for address) ATTORNEY TO BE NOTICED

Plaintiff NIKOLE QUASNEY

represented by Jordan Heinz (See above for address) ATTORNEY TO BE NOTICED

Barbara J. Baird (See above for address) ATTORNEY TO BE NOTICED

V. Defendant PENNY BOGAN in her official capacity as Boone County Clerk
Defendant KAREN M. MARTIN in her official capacity as Porter County Clerk
Defendant MICHAEL A. BROWN in his official capacity as Lake County Clerk

represented by Robert V. Clutter KIRTLEY, TAYLOR, SIMS, CHADD & MINNETTE, P.C. 117 W. Main Street Lebanon, IN 46052 765−483−8549 Fax: 765−483−9521 Email: bclutter@kirtleytaylorlaw.com ATTORNEY TO BE NOTICED
represented by Elizabeth A. Knight PORTER COUNTY ADMINISTRATIVE CENTER 155 Indiana Avenue Suite 205 Valparaiso, IN 46383 (219) 465−3329 Fax: (219) 465−3362 Email: eknight@porterco.org ATTORNEY TO BE NOTICED
represented by John S. Dull LAW OFFICE OF JOHN S. DULL, PC P.O. Box 14058 Merrillville, IN 46411 219−644−7172 Fax: 219−988−5639 Email: jsdull@yahoo.com ATTORNEY TO BE NOTICED
Nancy Moore Tiller NANCY MOORE TILLER & ASSOCIATES 11035 Broadway Suite A Crown Point, IN 46307 219−662−2300 Fax: 219−662−8739 Email: nmt@tillerlegal.com ATTORNEY TO BE NOTICED

Case: 1:14-cv-355 As of: 10/31/2017 01:57 PM EDT 6 of 15

Defendant GREG ZOELLER in his official capacity as Indiana Attorney General
Defendant PEGGY BEAVER
Defendant WILLIAM C. VANNESS

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 Darren J. Murphy HOWARD & ASSOCIATES 694 Logan Street Noblesville, IN 46060 (317) 773−4212 Fax: (317) 776−2369 Email: dmurphy@ori.net ATTORNEY TO BE NOTICED
represented by Thomas M. Fisher (See above for address) ATTORNEY TO BE NOTICED

Date Filed 03/10/2014
03/10/2014 03/10/2014 03/11/2014 03/12/2014
03/12/2014
03/12/2014

# Docket Text
1 COMPLAINT against PENNY BOGAN, MICHAEL A. BROWN, KAREN M. MARTIN, GREG ZOELLER, filed by PAMELA RUTH ELEASE EANES, BONNIE EVERLY, ESTHER FULLER, MARILYN RAE BASKIN, LINDA JUDKINS, DAWN LYNN CARVER. (Filing fee $400, receipt number IP039833) (Attachments: # 1 Civil Cover Sheet)(DJH) (Entered: 03/11/2014)
2 NOTICE of Appearance by Barbara J. Baird on behalf of Plaintiffs MARILYN RAE BASKIN, DAWN LYNN CARVER, PAMELA RUTH ELEASE EANES, BONNIE EVERLY, ESTHER FULLER, LINDA JUDKINS. (DJH) (Entered: 03/11/2014)
3 Summonses Issued as to PENNY BOGAN, MICHAEL A. BROWN, KAREN M. MARTIN, and GREG ZOELLER. (DJH) (Entered: 03/11/2014)
4 MAGISTRATE JUDGE's NOTICE of Availability to Exercise Jurisdiction issued. (DJH) (Entered: 03/11/2014)
5 MOTION for Attorney(s) Jordan M. Heinz to Appear pro hac vice (Filing fee $30, receipt number 0756−2986582), filed by Plaintiffs MARILYN RAE BASKIN, DAWN LYNN CARVER, PAMELA RUTH ELEASE EANES, BONNIE EVERLY, ESTHER FULLER, LINDA JUDKINS. (Attachments: # 1 Exhibit A − Certification, # 2 Text of Proposed Order)(Baird, Barbara) (Entered: 03/12/2014)
6 MOTION for Attorney(s) Brent P. Ray to Appear pro hac vice (Filing fee $30, receipt number 0756−2986612), filed by Plaintiffs MARILYN RAE BASKIN, DAWN LYNN CARVER, PAMELA RUTH ELEASE EANES, BONNIE EVERLY, ESTHER FULLER, LINDA JUDKINS. (Attachments: # 1 Exhibit A − Certification, # 2 Text of Proposed Order)(Baird, Barbara) (Entered: 03/12/2014)
7 MOTION for Attorney(s) Paul D. Castillo to Appear pro hac vice (Filing fee $30, receipt number 0756−2986616), filed by Plaintiffs MARILYN RAE BASKIN, DAWN LYNN CARVER, PAMELA RUTH ELEASE EANES, BONNIE EVERLY, ESTHER FULLER, LINDA JUDKINS. (Attachments: # 1 Exhibit A − Certification, # 2 Text of Proposed Order)(Baird, Barbara) (Entered: 03/12/2014)

Case: 1:14-cv-355 As of: 10/31/2017 01:57 PM EDT 7 of 15

03/12/2014 03/12/2014 03/13/2014 03/13/2014 03/13/2014 03/13/2014 03/13/2014 03/17/2014 03/17/2014 03/17/2014 03/17/2014

8 MOTION for Attorney(s) Christopher R. Clark to Appear pro hac vice (Filing fee $30, receipt number 0756−2986703), filed by Plaintiffs MARILYN RAE BASKIN, DAWN LYNN CARVER, PAMELA RUTH ELEASE EANES, BONNIE EVERLY, ESTHER FULLER, LINDA JUDKINS. (Attachments: # 1 Exhibit A − Certification, # 2 Text of Proposed Order)(Baird, Barbara) (Entered: 03/12/2014)
9 MOTION for Attorney(s) Camilla B. Taylor to Appear pro hac vice (Filing fee $30, receipt number 0756−2986953), filed by Plaintiffs MARILYN RAE BASKIN, DAWN LYNN CARVER, PAMELA RUTH ELEASE EANES, BONNIE EVERLY, ESTHER FULLER, LINDA JUDKINS. (Attachments: # 1 Exhibit A − Certification, # 2 Text of Proposed Order)(Baird, Barbara) (Entered: 03/12/2014)
10 Submission of Proposed Order , re 5 MOTION for Attorney(s) Jordan M. Heinz to Appear pro hac vice (Filing fee $30, receipt number 0756−2986582), filed by Plaintiffs MARILYN RAE BASKIN, DAWN LYNN CARVER, PAMELA RUTH ELEASE EANES, BONNIE EVERLY, ESTHER FULLER, LINDA JUDKINS. (Baird, Barbara) (Entered: 03/13/2014)
11 Submission of Proposed Order , re 6 MOTION for Attorney(s) Brent P. Ray to Appear pro hac vice (Filing fee $30, receipt number 0756−2986612), filed by Plaintiffs MARILYN RAE BASKIN, DAWN LYNN CARVER, PAMELA RUTH ELEASE EANES, BONNIE EVERLY, ESTHER FULLER, LINDA JUDKINS. (Baird, Barbara) (Entered: 03/13/2014)
12 Submission of Proposed Order , re 7 MOTION for Attorney(s) Paul D. Castillo to Appear pro hac vice (Filing fee $30, receipt number 0756−2986616), filed by Plaintiffs MARILYN RAE BASKIN, DAWN LYNN CARVER, PAMELA RUTH ELEASE EANES, BONNIE EVERLY, ESTHER FULLER, LINDA JUDKINS. (Baird, Barbara) (Entered: 03/13/2014)
13 Submission of Proposed Order , re 8 MOTION for Attorney(s) Christopher R. Clark to Appear pro hac vice (Filing fee $30, receipt number 0756−2986703), filed by Plaintiffs MARILYN RAE BASKIN, DAWN LYNN CARVER, PAMELA RUTH ELEASE EANES, BONNIE EVERLY, ESTHER FULLER, LINDA JUDKINS. (Baird, Barbara) (Entered: 03/13/2014)
14 Submission of Proposed Order , re 9 MOTION for Attorney(s) Camilla B. Taylor to Appear pro hac vice (Filing fee $30, receipt number 0756−2986953), filed by Plaintiffs MARILYN RAE BASKIN, DAWN LYNN CARVER, PAMELA RUTH ELEASE EANES, BONNIE EVERLY, ESTHER FULLER, LINDA JUDKINS. (Baird, Barbara) (Entered: 03/13/2014)
15 ORDER granting 5 Plaintiff's Motion to Appear pro hac vice of Attorney Jordan Heinz on behalf of MARILYN RAE BASKIN, DAWN LYNN CARVER, PAMELA RUTH ELEASE EANES, BONNIE EVERLY, ESTHER FULLER and LINDA JUDKINS. Copy Mailed. Signed by Magistrate Judge Mark J. Dinsmore on 3/17/2014. (MGG) (Entered: 03/17/2014)
16 ORDER granting 6 Motion to Appear pro hac vice of Attorney Brent Phillip Ray for MARILYN RAE BASKIN, DAWN LYNN CARVER, PAMELA RUTH ELEASE EANES, BONNIE EVERLY, ESTHER FULLER and LINDA JUDKINS. Copy Mailed. Signed by Magistrate Judge Mark J. Dinsmore on 3/17/2014. (MGG) (Entered: 03/17/2014)
17 ORDER granting 7 Motion to Appear pro hac vice of Attorney Paul D Castillo for MARILYN RAE BASKIN, DAWN LYNN CARVER, PAMELA RUTH ELEASE EANES, BONNIE EVERLY, ESTHER FULLER and LINDA JUDKINS. Copy Mailed. Signed by Magistrate Judge Mark J. Dinsmore on 3/17/2014. (MGG) (Entered: 03/17/2014)
18 ORDER − granting 8 Motion to Appear pro hac vice. Attorney Christopher R. Clark for MARILYN RAE BASKIN, Christopher R. Clark for DAWN LYNN CARVER, Christopher R. Clark for PAMELA RUTH ELEASE EANES,Christopher R. Clark for BONNIE EVERLY, Christopher R. Clark for ESTHER FULLER, Christopher R. Clark for LINDA JUDKINS added. Signed by Magistrate Judge Mark J. Dinsmore on 3/17/2014. Copy Mailed. (CKM) (Entered: 03/18/2014)

Case: 1:14-cv-355 As of: 10/31/2017 01:57 PM EDT 8 of 15

03/17/2014
03/18/2014
03/19/2014
03/20/2014 03/20/2014 03/20/2014 03/25/2014 03/27/2014 03/28/2014 03/28/2014 03/31/2014
03/31/2014 03/31/2014
04/01/2014 04/01/2014 04/03/2014

19 ORDER − granting 9 Motion to Appear pro hac vice. Attorney Camilla B. Taylor for MARILYN RAE BASKIN,Camilla B. Taylor for DAWN LYNN CARVER,Camilla B. Taylor for PAMELA RUTH ELEASE EANES,Camilla B. Taylor for BONNIE EVERLY,Camilla B. Taylor for ESTHER FULLER,Camilla B. Taylor for LINDA JUDKINS added. Signed by Magistrate Judge Mark J. Dinsmore on 3/17/2014. Copy Mailed (CKM) (Entered: 03/18/2014)
20 ORDER REASSIGNING CASE. Clerk is directed to reassign case to Judge Richard L. Young and Magistrate Judge Tim A. Baker for all further proceedings. This case is related to 4:14−CV−15−RLY−TAB. Judge Tanya Walton Pratt and Magistrate Judge Mark J. Dinsmore no longer assigned to case. Signed by Judge Richard L. Young on 3/18/2014. (TMD) (Entered: 03/18/2014)
21 NOTICE of Reassignment of Case to Judge Richard L. Young and Magistrate Judge Tim A. Baker. Judge Tanya Walton Pratt, Magistrate Judge Mark J. Dinsmore no longer assigned to the case. Please include the new case number, 1:14−cv−00355−RLY−TAB, on all future filings in this matter. (AAM) (Entered: 03/19/2014)
22 NOTICE of Appearance by Elizabeth A. Knight on behalf of Defendant KAREN M. MARTIN. (Knight, Elizabeth) (Entered: 03/20/2014)
23 WAIVER OF SERVICE Returned Executed, filed by KAREN M. MARTIN. KAREN M. MARTIN waiver sent on 3/10/2014. (Knight, Elizabeth) (Entered: 03/20/2014)
24 NOTICE of Appearance by Thomas M. Fisher on behalf of Defendant GREG ZOELLER. (Fisher, Thomas) (Entered: 03/20/2014)
25 NOTICE of Appearance by Robert V. Clutter on behalf of Defendant PENNY BOGAN. (Clutter, Robert) (Entered: 03/25/2014)
26 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)
28 NOTICE of Appearance by Nancy Moore Tiller on behalf of Defendant MICHAEL A. BROWN. (Tiller, Nancy) (Entered: 03/28/2014)
29 NOTICE of Non−Involvement, filed by Defendant MICHAEL A. BROWN, re 28 Notice of Appearance. (Tiller, Nancy) (Entered: 03/28/2014)
30 AMENDED COMPLAINT against PENNY BOGAN, MICHAEL A. BROWN, KAREN M. MARTIN, GREG ZOELLER, PEGGY BEAVER, WILLIAM C. VANNESS, filed by PAMELA RUTH ELEASE EANES, BONNIE EVERLY, ESTHER FULLER, MARILYN RAE BASKIN, LINDA JUDKINS, DAWN LYNN CARVER, HENRY GREENE, AMY SANDLER, GLENN FUNKHOUSER, NIKOLE QUASNEY. (Attachments: # 1 Proposed Summons Summonses to Defendants)(Baird, Barbara) (Entered: 03/31/2014)
31 MOTION for Temporary Restraining Order , MOTION for Preliminary Injunction , filed by Plaintiffs NIKOLE QUASNEY, AMY SANDLER. (Attachments: # 1 Text of Proposed Order)(Baird, Barbara) (Entered: 03/31/2014)
32 BRIEF/MEMORANDUM in Support re 31 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction , filed by Plaintiffs NIKOLE QUASNEY, AMY SANDLER. (Attachments: # 1 Declaration of Amy Sandler, # 2 Declaration of Nikole Quasney, # 3 Exhibit A − Quasney/Sandler Mass. Marriage Certificate)(Baird, Barbara) (Entered: 03/31/2014)
33 Summons Issued as to All Defendants. (NMT) (Entered: 04/01/2014)
34 Order regarding 4/04/14 telephonic conference − SEE ENTRY. Signed by Judge Richard L. Young on 4/1/2014.(TMD) (Entered: 04/01/2014)
35 ***WITHDRAWN, See Dkt. No. 65 Order*** MOTION for Preliminary Injunction , filed by Plaintiffs MARILYN RAE BASKIN, DAWN LYNN CARVER, PAMELA RUTH ELEASE EANES, BONNIE EVERLY, ESTHER FULLER, GLENN FUNKHOUSER, HENRY GREENE, LINDA JUDKINS. (Attachments: # 1 Text of

Case: 1:14-cv-355 As of: 10/31/2017 01:57 PM EDT 9 of 15

04/03/2014
04/03/2014 04/03/2014 04/03/2014
04/04/2014 04/09/2014 04/10/2014 04/10/2014 04/10/2014 04/14/2014 04/14/2014

Proposed Order)(Baird, Barbara) Modified on 5/8/2014 (JKS). (Entered: 04/03/2014)
36 BRIEF/MEMORANDUM in Support re 35 MOTION for Preliminary Injunction , filed by Plaintiffs MARILYN RAE BASKIN, DAWN LYNN CARVER, PAMELA RUTH ELEASE EANES, BONNIE EVERLY, ESTHER FULLER, GLENN FUNKHOUSER, HENRY GREENE, LINDA JUDKINS. (Attachments: # 1 Declaration of Rae Baskin, # 2 Declaration of Esther Fuller, # 3 Declaration of Bonnie Everly, # 4 Declaration of Lyn Judkins, # 5 Declaration of Pam Eanes, # 6 Declaration of Dawn Carver, # 7 Declaration of Henry Greene, # 8 Declaration of Glenn Funkhouser, # 9 Declaration of Nikole Quasney, # 10 Declaration of Amy Sandler)(Baird, Barbara) (Entered: 04/03/2014)
37 MOTION to Consolidate Preliminary Injunction Hearing with Final Trial on the Merits, filed by Plaintiffs MARILYN RAE BASKIN, DAWN LYNN CARVER, PAMELA RUTH ELEASE EANES, BONNIE EVERLY, ESTHER FULLER, GLENN FUNKHOUSER, HENRY GREENE, LINDA JUDKINS, NIKOLE QUASNEY, AMY SANDLER. (Baird, Barbara) (Entered: 04/03/2014)
38 MOTION for Summary Judgment , filed by Plaintiffs MARILYN RAE BASKIN, DAWN LYNN CARVER, PAMELA RUTH ELEASE EANES, BONNIE EVERLY, ESTHER FULLER, GLENN FUNKHOUSER, HENRY GREENE, LINDA JUDKINS, NIKOLE QUASNEY, AMY SANDLER. (Attachments: # 1 Text of Proposed Order)(Baird, Barbara) (Entered: 04/03/2014)
39 BRIEF/MEMORANDUM in Support re 38 MOTION for Summary Judgment , filed by Plaintiffs MARILYN RAE BASKIN, DAWN LYNN CARVER, PAMELA RUTH ELEASE EANES, BONNIE EVERLY, ESTHER FULLER, GLENN FUNKHOUSER, HENRY GREENE, LINDA JUDKINS, NIKOLE QUASNEY, AMY SANDLER. (Attachments: # 1 Declaration of Rae Baskin, # 2 Declaration of Esther Fuller, # 3 Declaration of Bonnie Everly, # 4 Declaration of Lyn Judkins, # 5 Declaration of Pam Eanes, # 6 Declaration of Dawn Carver, # 7 Declaration of Henry Greene, # 8 Declaration of Glenn Funkhouser, # 9 Declaration of Nikole Quasney, # 10 Declaration of Amy Sandler)(Baird, Barbara) (Entered: 04/03/2014)
40 Minute Entry for telephonic scheduling conference held 4/04/14 before Judge Richard L. Young. Dispositive Motions due by 4/21/2014. Hearing on Moton for Temporary Restraining Order is set for 4/10/2014 at 9:30 AM (Central time) in room #301, United States Courthouse, 101 Northwest MLK Boulevard, Evansville, Indiana before Judge Richard L. Young. (Court Reporter Judy Mason.) (TMD) (Entered: 04/04/2014)
41 NOTICE of Appearance by Thomas M. Fisher on behalf of Defendant WILLIAM C. VANNESS. (Fisher, Thomas) (Entered: 04/09/2014)
42 DECLARATION of Nikole Quasney (Supplemental) re 32 Brief/Memorandum in Support of Motion by NIKOLE QUASNEY, AMY SANDLER. (Baird, Barbara) (Entered: 04/10/2014)
43 DECLARATION of Eddie Beagles, Jr. re 32 Brief/Memorandum in Support of Motion by NIKOLE QUASNEY, AMY SANDLER. (Attachments: # 1 Exhibit A − Blank Certificate of Death (IN State Dept. of Health))(Baird, Barbara) (Entered: 04/10/2014)
44 Minute Entry for Motion Hearing held on 4/10/2014 re 31 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by AMY SANDLER, NIKOLE QUASNEY before Judge Richard L. Young. The court hears argument from counsel and GRANTS the Motion for Temporary Restraining Order. Further order shall issue by separate entry. (Court Reporter Judy Mason.) (TMD) (Entered: 04/10/2014)
45 AFFIDAVIT of Service for Summons; First Amended Complaint; Plaintiffs Nikole Quasney and Amy Sandler's Motion for Temporary Restraining Order and Preliminary Injunction, with Memorandum in Support served on Defendant Peggy Beaver on 04/03/2014, filed by All Plaintiffs. (Baird, Barbara) (Entered: 04/14/2014)
46 AFFIDAVIT of Service for Summons; First Amended Complaint; Plaintiffs Nikole Quasney and Amy Sandler's Motion for Temporary Restraining Order and Preliminary Injunction, with Memorandum in Support served on Defendant William C. VanNess II, M.D. on 04/03/2014, filed by All Plaintiffs. (Baird, Barbara) (Entered: 04/14/2014)

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04/17/2014 04/17/2014
04/18/2014
04/18/2014 04/18/2014 04/18/2014 04/21/2014
04/22/2014 04/22/2014 04/22/2014
04/25/2014 04/25/2014 04/25/2014 04/25/2014 04/29/2014

47 NOTICE of Appearance by Darren J. Murphy on behalf of Defendant PEGGY BEAVER. (Murphy, Darren) (Entered: 04/17/2014)
48 Unopposed MOTION (1) TO CONSOLIDATE BRIEFING AND HEARING ON MOTIONS FOR PRELIMINARY INJUNCTION AND MOTION FOR SUMMARY JUDGMENT and (2) FOR LEAVE TO FILE OVERSIZED BRIEF, filed by Defendants WILLIAM C. VANNESS, GREG ZOELLER. (Attachments: # (1) Text of Proposed Order )(Fisher, Thomas) Modified on 4/18/2014 (NMT). (Entered: 04/17/2014)
49 TRANSCRIPT of Hearing on Plaintiffs' Motion for TRO and Preliminary Injunction held on 4/10/204 before Judge Richard L. Young. (45 pages.) Court Reporter/Transcriber: Judy Farris Mason (Telephone: (812) 459−9805). Please review Local Rule 80−2 for more information on redaction procedures. Redaction Statement due 5/9/2014. Release of Transcript Restriction set for 7/17/2014. (Mason, Judy) Released on 7/17/2014 (SWM). (Entered: 04/18/2014)
50 NOTICE of FILING of OFFICIAL TRANSCRIPT of Hearing on Plaintiffs' Motion for TRO and Preliminary Injunction held before Judge Richard L. Young on 4/10/2014 (Mason, Judy) (Entered: 04/18/2014)
51 ORDER granting Plaintiffs Quasney and Sandler's 31 Motion for Temporary Restraining Order. Signed by Judge Richard L. Young on 4/18/2014. (TMD) (Entered: 04/18/2014)
52 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)
61 Minute Entry for telephonic conference held 4/21/2014 before Judge Richard L. Young. Motion Hearing (Preliminary Injunction and Summary Judgment) is set for 5/2/2014 at 9:30 AM in room #301, United States Courthouse, 101 Northwest MLK Boulevard, Evansville, Indiana before Judge Richard L. Young. (Court Reporter Judy Mason.) (TMD) (Entered: 04/28/2014)
54 NOTICE of Parties' First Extension of Time, filed by Defendants WILLIAM C. VANNESS, GREG ZOELLER. (Fisher, Thomas) (Entered: 04/22/2014)
55 MOTION for Summary Judgment , filed by Defendants WILLIAM C. VANNESS, GREG ZOELLER. (Fisher, Thomas) (Entered: 04/22/2014)
56 BRIEF/MEMORANDUM in Support re 55 MOTION for Summary Judgment AND IN OPPOSITION TO PLAINTIFFS MOTIONS FOR PRELIMINARY INJUNCTION AND MOTION FOR SUMMARY JUDGMENT, filed by Defendants WILLIAM C. VANNESS, GREG ZOELLER. (Attachments: # 1 Exhibit Declaration of Hilari A. Sautbine)(Fisher, Thomas) (Entered: 04/22/2014)
57 RETURN of Service, filed by All Plaintiffs. GREG ZOELLER served on 4/3/2014. (Baird, Barbara) (Entered: 04/25/2014)
58 RETURN of Service, filed by All Plaintiffs. MICHAEL A. BROWN served on 4/9/2014. (Baird, Barbara) (Entered: 04/25/2014)
59 RETURN of Service, filed by All Plaintiffs. KAREN M. MARTIN served on 4/9/2014. (Baird, Barbara) (Entered: 04/25/2014)
60 RETURN of Service, filed by All Plaintiffs. PENNY BOGAN served on 4/10/2014. (Baird, Barbara) (Entered: 04/25/2014)
62 REPLY in Support of Motion re 35 MOTION for Preliminary Injunction , 38 MOTION for Summary Judgment , and Opposition to 55 Defendants' Motion for Summary Judgment, filed by Plaintiffs MARILYN RAE BASKIN, DAWN LYNN CARVER, PAMELA RUTH ELEASE EANES, BONNIE EVERLY, ESTHER FULLER, GLENN FUNKHOUSER, HENRY GREENE, LINDA JUDKINS, NIKOLE QUASNEY, AMY SANDLER. (Attachments: # 1 Declaration of John Q. Herrin, # 2 Declaration of Lesa C. Duvall, # 3 Exhibit A − Jurisdictional Statement, Baker v. Nelson, # 4 Exhibit B − Stay Order, Tanco v. Haslam)(Baird, Barbara) (Entered: 04/29/2014)

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05/02/2014 05/05/2014 05/08/2014
05/08/2014 05/08/2014 05/08/2014 05/09/2014 05/09/2014 05/09/2014 05/09/2014 05/12/2014 05/13/2014
05/13/2014

63 Minute Entry for hearing on Preliminary Injunction and Summary Judgment oral argument held 5/02/2014 before Judge Richard L. Young. The court hears argument from the counsel. Further order shall issue by separate entry. (Court Reporter Judy Mason.) (TMD) (Entered: 05/02/2014)
64 NOTICE of Appearance by John S. Dull on behalf of Defendant MICHAEL A. BROWN. (Dull, John) (Entered: 05/05/2014)
65 ORDER granting 31 Plaintiffs' Motion for Preliminary Injunction − 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 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 renders judgment on the merits of the Plaintiffs' claims. The motion for preliminary injunctive relief from the unmarried Plaintiffs (Filing No. 35 ) is WITHDRAWN. ***SEE ORDER***. Signed by Judge Richard L. Young on 5/8/2014. (JKS) (Entered: 05/08/2014)
66 NOTICE OF APPEAL as to 65 Order on Motion for Preliminary Injunction, filed by Defendants WILLIAM C. VANNESS, GREG ZOELLER. (No fee paid with this filing) (Fisher, Thomas) (Entered: 05/08/2014)
67 DOCKETING STATEMENT by WILLIAM C. VANNESS, GREG ZOELLER re 66 Notice of Appeal (Fisher, Thomas) (Entered: 05/08/2014)
68 MOTION to Stay Pending Appeal, filed by Defendants WILLIAM C. VANNESS, GREG ZOELLER. (Fisher, Thomas) (Entered: 05/08/2014)
69 SEVENTH CIRCUIT APPEAL INFORMATION SHEET re 66 Notice of Appeal − Instructions for Attorneys − Parties' Short Record, Instructions, and Designation of Record information attached. (LBT) (Entered: 05/09/2014)
70 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 66 Notice of Appeal. − for Court of Appeals Use Only. (LBT) (Entered: 05/09/2014)
71 USCA Appeal Fees received $505.00 receipt number IP040720 re 66 Notice of Appeal filed by WILLIAM C. VANNESS, GREG ZOELLER (USCA #(not assigned)) (DJH) (Entered: 05/09/2014)
72 USCA Case Number 14−2037 for 66 Notice of Appeal filed by WILLIAM C. VANNESS, GREG ZOELLER. (LBT) (Entered: 05/09/2014)
73 RESPONSE in Opposition re 68 MOTION to Stay Pending Appeal , filed by Plaintiffs NIKOLE QUASNEY, AMY SANDLER. (Attachments: # 1 Exhibit A − Order Granting Summary Judgment (Wright v. Arkansas))(Baird, Barbara) (Entered: 05/12/2014)
74 TRANSCRIPT of Hearing on Plaintiffs' Motion for Preliminary Injunction and Summary Judgment Oral Argument held on 5/2/2014 before Judge Richard L. Young. (64 pages.) Court Reporter/Transcriber: Judy Farris Mason (Telephone: (812) 459−9805). Please review Local Rule 80−2 for more information on redaction procedures. Redaction Statement due 6/3/2014. Release of Transcript Restriction set for 8/11/2014. (Mason, Judy) Released on 8/12/2014 (SWM). (Entered: 05/13/2014)
75 NOTICE of FILING of OFFICIAL TRANSCRIPT of Hearing on Plaintiffs' Motion for Preliminary Injunction and Summary Judgment Oral Argument held before Judge

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05/15/2014 05/15/2014
05/22/2014 05/22/2014 05/23/2014 05/23/2014 05/23/2014
05/28/2014 06/04/2014 06/10/2014 06/10/2014
06/11/2014 06/12/2014

Richard L. Young on 5/2/2014 (Mason, Judy) (Entered: 05/13/2014)
76 Unopposed MOTION to File Plaintiffs' First Notice of Supplemental Authority, filed by Plaintiffs MARILYN RAE BASKIN, DAWN LYNN CARVER, PAMELA RUTH ELEASE EANES, BONNIE EVERLY, ESTHER FULLER, GLENN FUNKHOUSER, HENRY GREENE, LINDA JUDKINS, NIKOLE QUASNEY, AMY SANDLER. (Taylor, Camilla) (Entered: 05/15/2014)
77 NOTICE of Supplemental Authority in support of 38 , filed by Plaintiffs MARILYN RAE BASKIN, DAWN LYNN CARVER, PAMELA RUTH ELEASE EANES, BONNIE EVERLY, ESTHER FULLER, GLENN FUNKHOUSER, HENRY GREENE, LINDA JUDKINS, NIKOLE QUASNEY, AMY SANDLER (Attachments: # 1 Exhibit Wright v. Arkansas decision, # 2 Exhibit Latta v. Orr decision) (Taylor, Camilla) Modified on 5/16/2014 (ADH). (Entered: 05/15/2014)
78 DESIGNATION of Record on Appeal by WILLIAM C. VANNESS, GREG ZOELLER re 66 Notice of Appeal (Fisher, Thomas) (Entered: 05/22/2014)
79 DEFENDANTS' ANSWER to 30 Amended Complaint FOR DECLARATORY AND INJUNCTIVE RELIEF, filed by WILLIAM C. VANNESS, GREG ZOELLER.(Fisher, Thomas) (Entered: 05/22/2014)
80 ORDER (Marginal Notation): GRANTED 76 Motion to File Plaintiffs' First Notice of Supplemental Authority. Signed by Magistrate Judge Tim A. Baker on 5/22/2014. (DW) (Entered: 05/23/2014)
81 Unopposed MOTION to Submit Second Notice of Supplemental Authority, filed by Plaintiffs MARILYN RAE BASKIN, DAWN LYNN CARVER, PAMELA RUTH ELEASE EANES, BONNIE EVERLY, ESTHER FULLER, GLENN FUNKHOUSER, HENRY GREENE, LINDA JUDKINS, NIKOLE QUASNEY, AMY SANDLER. (Heinz, Jordan) (Entered: 05/23/2014)
82 NOTICE of Second Supplemental Authority, filed by Plaintiffs MARILYN RAE BASKIN, DAWN LYNN CARVER, PAMELA RUTH ELEASE EANES, BONNIE EVERLY, ESTHER FULLER, GLENN FUNKHOUSER, HENRY GREENE, LINDA JUDKINS, NIKOLE QUASNEY, AMY SANDLER, re 81 Unopposed MOTION to Submit Second Notice of Supplemental Authority. (Attachments: # 1 Exhibit A − Order Granting SJ (Greiger v. Kitzhaber), # 2 Exhibit B − Order Granting SJ (Whitewood v. Wolf)) (Heinz, Jordan) (Entered: 05/23/2014)
83 ANSWER to 30 Amended Complaint , filed by KAREN M. MARTIN.(Knight, Elizabeth) (Entered: 05/28/2014)
84 ORDER (Marginal Notation): GRANTED 81 Motion TO SUBMITSECOND NOTICE OF SUPPLEMENTAL AUTHORITY. Signed by Magistrate Judge Tim A. Baker on 6/4/2014. (DW) (Entered: 06/04/2014)
85 Unopposed MOTION to Submit Third Notice of Supplemental Authority, filed by Plaintiffs MARILYN RAE BASKIN, DAWN LYNN CARVER, PAMELA RUTH ELEASE EANES, BONNIE EVERLY, ESTHER FULLER, GLENN FUNKHOUSER, HENRY GREENE, LINDA JUDKINS, NIKOLE QUASNEY, AMY SANDLER. (Heinz, Jordan) (Entered: 06/10/2014)
86 NOTICE of Third Supplemental Authority, filed by Plaintiffs MARILYN RAE BASKIN, DAWN LYNN CARVER, PAMELA RUTH ELEASE EANES, BONNIE EVERLY, ESTHER FULLER, GLENN FUNKHOUSER, HENRY GREENE, LINDA JUDKINS, NIKOLE QUASNEY, AMY SANDLER, re 85 Unopposed MOTION to Submit Third Notice of Supplemental Authority. (Attachments: # 1 Exhibit A − Order Granting SJ (Wolf v. Walker)) (Heinz, Jordan) (Entered: 06/10/2014)
87 ORDER granting 48 Motion to consolidate briefing and hearing on preliminary injunction and summary judgment and leave to file oversized brief. Signed by Judge Richard L. Young on 6/11/2014. (TMD) (Entered: 06/11/2014)
88 MARGINAL ENTRY granting Plaintiffs' 85 Motion to submit third notice of supplemental authority. Signed by Magistrate Judge Tim A. Baker on 6/12/2014. (SWM) (Entered: 06/12/2014)

Case: 1:14-cv-355 As of: 10/31/2017 01:57 PM EDT 13 of 15

06/25/2014
06/25/2014 06/25/2014
06/25/2014 06/25/2014 06/26/2014 06/26/2014 06/26/2014 06/26/2014 06/26/2014 06/27/2014
07/01/2014
07/08/2014 07/09/2014

89 **STAYED PENDING APPEAL PER 99 USCA ORDER** ORDER granting Plaintiffs' 38 Motion for Summary Judgment and denying Defendants' 55 Motion for Summary Judgment. Order also denies as moot Plaintiffs' 37 Motion to Consolidate Preliminary Injunction Proceedings with Final Trial on the Merits and denies as moot Defendants' 68 Motion for Stay of the Preliminary Injunction. (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)
90 CLOSED JUDGMENT in favor of Plaintiffs against Defendants. This case is now closed. Signed by Judge Richard L. Young on 6/25/2014.(TMD) (Entered: 06/25/2014)
91 NOTICE OF APPEAL as to 89 Order on Motions for Summary Judgment and Motion to Stay and 90 Judgment, filed by Defendants WILLIAM C. VANNESS, GREG ZOELLER, PENNY BOGAN, and PEGGY BEAVER. (No fee paid with this filing) (Fisher, Thomas) Modified on 6/26/2014 to link to Doc #90 (JLM). Modified on 6/26/2014, to add additional filers (JLM). (Entered: 06/25/2014)
92 DOCKETING STATEMENT by WILLIAM C. VANNESS, GREG ZOELLER, PENNY BOGAN, and PEGGY BEAVER re 91 Notice of Appeal (Fisher, Thomas) Modified on 6/26/2014, to add additional filers (JLM). (Entered: 06/25/2014)
93 Emergency MOTION to Stay Pending Appeal, filed by Defendants WILLIAM C. VANNESS, GREG ZOELLER, PENNY BOGAN,and PEGGY BEAVER. (Fisher, Thomas) Modified on 6/26/2014, to add additional filers (JLM). (Entered: 06/25/2014)
94 RESPONSE in Opposition re 93 Emergency MOTION to Stay Pending Appeal , filed by Plaintiffs NIKOLE QUASNEY, AMY SANDLER. (Baird, Barbara) (Entered: 06/26/2014)
95 SEVENTH CIRCUIT APPEAL INFORMATION SHEET re 91 Notice of Appeal − Instructions for Attorneys − Parties' Short Record, Instructions, and Designation of Record information attached. (JLM) (Entered: 06/26/2014)
96 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 91 Notice of Appeal. − for Court of Appeals Use Only. (JLM) (Entered: 06/26/2014)
97 USCA Case Number 14−2386 for 91 Notice of Appeal filed by WILLIAM C. VANNESS, GREG ZOELLER, PENNY BOGAN, PEGGY BEAVER. (Attachments: # 1 Circuit Rule 3(b) Notice)(JLM) (Entered: 06/26/2014)
98 USCA Appeal Fees received $ 505.00 receipt number IP041373 re 91 Notice of Appeal filed by PENNY BOGAN, WILLIAM C. VANNESS, GREG ZOELLER, PEGGY BEAVER (USCA #14−2386) (DJH) (Entered: 06/26/2014)
99 ORDER of USCA as to 91 Notice of Appeal filed by PENNY BOGAN, WILLIAM C. VANNESS, GREG ZOELLER, PEGGY BEAVER (USCA #14−2386) − Upon consideration of the Emergency Motion for Stay Pending Appeal, filed on 6/27/2014 by counsel for the appellants, it is ORDERED that the motion is GRANTED. The district court's order dated 6/25/2014 is STAYED pending resolution of this appeal. (LBT) (Entered: 06/30/2014)
100 ORDER of USCA as to 91 Notice of Appeal filed by PENNY BOGAN, WILLIAM C. VANNESS, GREG ZOELLER, PEGGY BEAVER (USCA #14−2386) − It is ORDERED that the Emergency Motion of Plaintiffs−Appellees Quasney and Sandler to Lift the Court's Stay in Part is GRANTED. The appellants are ORDERED to recognize the validity of the 2013 marriage between appellees Amy Sandler and Nikole Quasney on an emergency basis pending further order of the court. (LBT) (Entered: 07/01/2014)
101 DESIGNATION of Record on Appeal by WILLIAM C. VANNESS, GREG ZOELLER re 91 Notice of Appeal (Fisher, Thomas) (Entered: 07/08/2014)
102 Unopposed MOTION for Extension of Time to File for Attorneys' Fees and Costs, filed by Plaintiffs MARILYN RAE BASKIN, DAWN LYNN CARVER, PAMELA RUTH ELEASE EANES, BONNIE EVERLY, ESTHER FULLER, GLENN FUNKHOUSER, HENRY GREENE, LINDA JUDKINS, NIKOLE QUASNEY, AMY SANDLER. (Attachments: # 1 Text of Proposed Order)(Baird, Barbara)

Case: 1:14-cv-355 As of: 10/31/2017 01:57 PM EDT 14 of 15

07/11/2014 07/14/2014 07/23/2014 07/23/2014 07/24/2014 07/25/2014 07/30/2014
08/07/2014 09/15/2014

(Entered: 07/09/2014)
103 ORDER granting Plaintiffs' 102 Motion for Extension of Time: IT IS THEREFORE ORDERED that Plaintiffs are granted an extension of time to file for their reasonable attorneys' fees and costs until 95 days after the Seventh Circuit issues its mandate in this case or the case is otherwise resolved in the Seventh Circuit, or 35 days after any proceedings in this case in the United States Supreme Court are resolved, whichever is later. Signed by Magistrate Judge Tim A. Baker on 7/11/2014. (SWM) (Entered: 07/14/2014)
104 MANDATE of USCA as to 66 Notice of Appeal filed by WILLIAM C. VANNESS, GREG ZOELLER (USCA #14−2037) − Upon consideration of the Joint Motion to Dismiss Appeal of the District Court's Entry of a Preliminary Injunction as Moot, filed on 7/14/2014, by counsel for appellants, it is ORDERED that this case is DISMISSED, pursuant to Federal Rule of Appellate Procedure 42(b). (LBT) (Entered: 07/14/2014)
105 Certified and Transmitted Record on Appeal to US Court of Appeals re 91 Notice of Appeal (USCA #14−2386, 14−2387, 14−2388). **Sealed and Restricted Items will be sent as a Supplemental REcord via email.** (Attachments: # 1 1−14−355−Pleadings (Doc 1−56), # 2 1−14−355−Pleadings (Doc 62−end), # 3 1−14−355−Transcript Doc 49, # 4 1−14−404−Pleadings, # 5 1−14−406−Pleadings, # 6 Notice to Transmit Record)(LBT) (Entered: 07/23/2014)
106 Supplemental Record on Appeal transmitted to US Court of Appeals via email re 91 Notice of Appeal (USCA #14−2386, 14−2387, 14−2388). (LBT) (Entered: 07/23/2014)
107 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)
108 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)
109 ORDER of USCA as to (53 in 1:14−cv−00404−RLY−TAB) Notice of Appeal filed by CLERK, ALLEN COUNTY, INDIANA, COMMISSIONER, INDIANA STATE DEPARTMENT OF REVENUE, CLERK, HAMILTON COUNTY, INDIANA (USCA #14−2386) and (91 in 1:14−cv−00355−RLY−TAB) Notice of Appeal filed by PENNY BOGAN, WILLIAM C. VANNESS, GREG ZOELLER, PEGGY BEAVER (USCA #14−2387) − Upon consideration of the Appellant Hamilton County Clerk Peggy Beaver's Motion for a Voluntary Dismissal of her Appeal, filed on 7/30/2014, by counsel for appellant Hamilton County Clerk Peggy Beaver, it is ORDERED that appellant Peggy Beaver is voluntarily DISMISSED from appeal nos. 14−2386 and 14−2387 pursuant to Fed. R. App. R. 42(b). These appeals remain active with respect to the other appellants. (LBT) (Entered: 07/30/2014)
110 MANDATE of USCA as to 91 Notice of Appeal filed by PENNY BOGAN, WILLIAM C. VANNESS, GREG ZOELLER, PEGGY BEAVER (USCA #14−2386) − It is ORDERED that appellant Peggy Beaver, Clerk of Hamilton County, is voluntarily DISMISSED from appeal nos. 14−2386 and 14−2387 pursuant to Fed. R. App. P. 42(b). These appeals remain active with respect to the other appellants. (LBT) (Entered: 08/07/2014)
111 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

Case: 1:14-cv-355 As of: 10/31/2017 01:57 PM EDT 15 of 15

10/07/2014
10/20/2014 01/06/2015
01/12/2015 03/09/2015

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)
112 MANDATE of USCA as to 91 Notice of Appeal filed by PENNY BOGAN, WILLIAM C. VANNESS, GREG ZOELLER, PEGGY BEAVER (USCA #14−2386) − The judgment of the District Court is AFFIRMED, with costs, in accordance with the decision ofthis court entered on this date. The petition for writ of certiorari is DENIED by the U.S. Supreme Court. (LBT) (Entered: 10/07/2014)
113 ORDER denying as moot 93 Motion to Stay Pending Appeal. Signed by Judge Richard L. Young on 10/20/2014. (TMD) (Entered: 10/20/2014)
114 Unopposed MOTION for Extension of Time to 3/11/2015 to File for Attorneys' Fees and Costs, filed by Plaintiffs MARILYN RAE BASKIN, DAWN LYNN CARVER, PAMELA RUTH ELEASE EANES, BONNIE EVERLY, ESTHER FULLER, GLENN FUNKHOUSER, HENRY GREENE, LINDA JUDKINS, NIKOLE QUASNEY, AMY SANDLER. (Attachments: # 1 Text of Proposed Order)(Heinz, Jordan) (Entered: 01/06/2015)
115 ORDER granting Plaintiffs' 114 Motion for Extension of Time to File petition for attorneys' fees and costs to 3/11/2015. Signed by Magistrate Judge Tim A. Baker on 1/12/2015. (SWM) Modified on 1/12/2015 (SWM). (Entered: 01/12/2015)
116 NOTICE to Court Regarding Resolution of Attorneys' Fees and Costs, filed by Plaintiffs MARILYN RAE BASKIN, DAWN LYNN CARVER, PAMELA RUTH ELEASE EANES, BONNIE EVERLY, ESTHER FULLER, GLENN FUNKHOUSER, HENRY GREENE, LINDA JUDKINS, NIKOLE QUASNEY, AMY SANDLER (Heinz, Jordan) (Entered: 03/09/2015)

Case #: 1:14−cv−00355−RLY−TAB