It's our turn now in Indiana, after the legislature failed to advance a Constitutional amendment against Marriage Equality, HJR 3, with Love v. Pence, 14-cv-00015, U.S. District Court, Southern District of Indiana (New Albany).
Taking the Fight for Marriage Equality to the Hoosier State
Plaintiffs and attorneys announced a new lawsuit seeking marriage equality in Indiana at a March 7 press conference at the law firm of Clay Daniel Walton & Adams, the same firm litigating against Kentucky’s laws banning same-sex marriage.
Plaintiffs shown above with one of their lawyers are four couples, Melissa Love, Erin Brock, Michael Drury, Lane Stumler, Jo Ann Dale, Carol Uebelhoer, Jennifer Redmond, and Jana Kohorst. Some (the "Love plaintiffs") are unmarried, and are seeking a right to marry, while others (the "Dale plaintiffs"), married elsewhere, and are seeking recognition of their marriages.
I got the filing from a link on the Freedom to Marry Web site, so we can discuss it below.
HJR 3, in case you haven't heard, was a proposed Constitutional amendment to not only forbid Marriage Equality, but also anything substantially similar, such as civil unions and domestic partnerships. It passed in 2012, so if the Legislature had passed it again, it would have gone on the ballot in November. Instead, it was amended to take out the second sentence barring equivalents to same-sex marriage. So it can't go on the ballot until 2016, at least. The Legislature would have to approve it again unchanged to make that happen, and Hoosierdom is going to evolve some more before then.
These couples are represented by the same attorneys who represent the plaintiffs in the ongoing Kentucky marriage equality cases of Bourke v. Beshear and Love v. Beshear. Those attorneys are: Shannon Fauver and Dawn Elliott of the Fauver Law Office; and Daniel Canon, Laura Landenwich, and Joe Dunman, of Clay Daniel Walton & Adams.
The story about this lawsuit has gone national in the Chicago Tribune and the LA Times.
I sent a note about the Love v. Pence case to Marriage Equality USA, which has put it up on its Lawsuits page. It is also listed at Freedom to Marry, on their Litigation page. There are twenty-seven such cases around the country, in state and Federal courts, in every stage from filing to hearings to judgments to appeals, and more in preparation.
Bans have been overturned in Federal District Courts in the Tenth Circuit (Utah and Oklahoma), the Fourth Circuit (Virginia), and the Fifth Circuit (Texas), and are being appealed to their respective Circuit Courts of Appeals. A Federal judge in Kentucky, in the Sixth Circuit, has ruled that Kentucky must recognize same-sex marriages from other states, and indicated that he would look favorably on a suit to strike down Kentucky's ban completely. Indiana is in the Seventh Circuit. Favorable decisions on appeal in these districts could extend Marriage Equality to several more midwestern, western, and southern states, depending on what the Supreme Court does.
They are surrounded. We got five states in 2013, a record, and we could get many more this year.
Comparisons with Loving v. Virginia are inevitable, because of the names, so let's get that out of the way right at the beginning. You can make the same kinds of human rights arguments on "miscegenation" and "gay marriage" in a general way, but you have to get down to cases when you go to court.
Ono of our best cases right now is the Scalia dissent on DOMA (US v. Windsor), where he argle-bargled that the majority opinion would inevitably lead to full Marriage Equality nationwide. We have never had a precedent like it. (Yes, legally a dissent isn't a precedent. But we get to cite it anyway, because it's so right.) It is being quoted with great, though muffled, glee in briefs and arguments all over the country, and Federal judges in the Districts mentioned above have so far been quite willing to take Scalia at his word, and rule accordingly, though obviously not just for that reason.
So now on to Purplest Indiana, which still thinks it is deep Red, but went for Obama in 2008, and has one Republican and one Democratic Senator. And where there has been a stalemate between those who want to ban Marriage Equality even more than they did before, and those who introduce measures for repeal the current ban, or to legalize marijuana, and so on. We are even sort of going to expand Medicaid. We have our own demographic and generational transformations going on, so it won't be much longer before we are a true swing state. We only have to get Democrats in control once to undo the gerrymander here and make it pretty much permanent, as these things go.
In this case, Love v. Pence, there is no explicit mention of Scalia's dissent. However, the underlying logic is right here in the filing.
In United States v. Windsor, 133 S. Ct. 2675 (2013), the United States Supreme Court held that withholding federal recognition and benefits from legally married same-sex couples, as required by Section 3 of the Defense of Marriage Act (DOMA), violates the federal constitutional guarantees of equal protection and due process. Plaintiffs seek to apply this holding, and/or the reasoning underlying it [emphasis added], to invalidate and enjoin the enforcement of Indiana's state statutory provision refusing to issue marriage licenses to same-sex couples, prohibiting recognition of legally married same-sex couples from other states, as well as Section 2 of DOMA, and any other relevant provision which would allow Indiana's continued refusal to respect Plaintiffs’ rights.
The Indiana Attorney General reacted predictably.
Indiana Gay-Marriage Ban Challenged by Couples in Court
By Karen Gullo Mar 7, 2014 3:39 PM ET
“As state government’s lawyer, I must defend the state’s authority to define marriage at the state level within Indiana’s borders,” Indiana Attorney General Greg Zoeller, also a Republican, said in an e-mailed statement. “People of goodwill have sincere differences of opinion on the marriage definition, but I hope Hoosiers can remain civil to each other as this legal question is litigated in the federal court.”
He said he has successfully defended Indiana’s marriage-definition statute from other legal challenges in state court. Zoeller was one of the lead authors of friend-of-the-court filings in the U.S. Supreme Court in support of state laws defining marriage as between a man and a woman before the high court ruled last year on the federal Defense of Marriage Act and a case concerning California’s gay-marriage ban.
Note that AG Zoeller is bragging about winning in state courts, but
losing twice in Federal courts on this issue.
I wanted to get the case documents from the court, but I have not yet penetrated the PACER system (Public Access to Court Electronic Records) that the court here uses. I have to sign up for an account, but it has not sent me the registration e-mail. If anybody else here has access, let me know by Kosmail, and we can see about an update or a more detailed Diary.
I did get the filing, as I said earlier. Here is a PDF version.
The filing argues for a substantial number of points of relief, each an area where same-sex couples are at a legal disadvantage and suffer actual harm, and argues them on a variety of grounds.
17. Indiana's statute banning same-sex marriages and voiding valid out of state same-sex marriages is IC 31-11-1-1, commonly referred to as "Indiana's Defense of Marriage Act," which provides: "(a) Only a female may marry a male. Only a male may marry a female. (b) A marriage between persons of the same gender is void in Indiana even if the marriage is lawful in the place where it is solemnized.”
The filing asserts that this and the remaining provisions of DOMA violate the Constitution under
- The Due Process and Equal Protection clause of the Fourteenth Amendment
- Freedom of Association (First Amendment)
- Full Faith and Credit (Article IV, Section 1)
- The Supremacy Clause (Article VI, Section II)
- The Right to Travel without undue burdens (Fourteenth Amendment)
- The Establishment Clause (First Amendment)
We'll see what sticks. Have at them.
All of this is to be briefed and argued at future times that have not yet been set. Then we get to wait for a decision, presumably with a stay pending appeal, and the appeal, and so on.