5 lawsuits keep marriage debate alive in Indiana

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by Marilyn Odendahl, www.theindianalawyer.com

During the debate in the Statehouse about House Joint Resolution 3, the proposed amendment to ban same-sex marriage in the Indiana Constitution, lawmakers were told repeatedly that whether or not the Legislature passed the constitutional provision there would be lawsuits. The Indiana General Assembly neither approved nor rejected HJR 3 as introduced – the version approved by lawmakers in 2011 – opting instead to alter the language in the amendment which sent the ratification process back to the beginning.  But still the lawsuits have come. Same-sex couples began filing their challenges to Indiana’s Defense of Marriage Act just as the 2014 legislative session drew to a close.  Kentucky attorney Laura Landenwich said whether the same-sex marriage ban is a statute or a constitutional amendment does not matter. The fact is, she said, the prohibition creates two classes of people, and there is not a rational basis to create two classes.  Landenwich is a member of the legal team that filed the first suit, Love v. Pence, 4:14-CV-15.
To date, five complaints have been filed, all in the U.S. District Court for the Southern District of Indiana, where they have been assigned to Chief Judge Richard Young. The couples seeking to have the law overturned come from across the state with some living in metropolitan areas and others residing in very small rural enclaves.

marraige-15col.jpg Melody Layne (left) and her wife Tara Betterman are part of the lawsuit filed by the ACLU of Indiana seeking to overturn Indiana’s ban on same-sex marriage. (Photo submitted)

All the lawsuits primarily challenge Indiana’s DOMA as violating the Due Process and Equal Protection clauses of the 14th Amendment of the U.S. Constitution. Similar suits making the same argument have been successful in knocking down same-sex marriage bans in a number of states including Kentucky, Texas, Utah and Virginia. Ironically, the odds for success for same-sex couples in Indiana may be hampered by the lack of an amendment to the state Constitution. The states that have lost in federal court have had both statutes and constitutional amendments that defined marriage. Indiana University Maurer School of Law professor Daniel Conkle explained the courts tend to view a constitutional amendment as the state immunizing the political process. Gays and lesbians who want to abolish a same-sex marriage ban will have a more difficult task removing language from the Constitution as compared to going through the legislative process to change a statute. Provisions considered discriminatory that are encased in a state’s constitution seem to be more vulnerable in federal courts, Conkle said. The courts tend to find the challenged amendments violate the U.S. constitutional guarantees on the grounds that the political process has been skewered.  Conkle pointed out that while Indiana’s prohibition on same-sex marriage might have been in further jeopardy from the federal court if the amendment had been approved, the state law is still being fought with the same arguments. Proponents  of same-sex marriage claim the ban violates the Constitution by discriminating against homosexuals.By not being allowed to marry or not having their marriages performed in other states recognized, the couples bringing the lawsuits are barred from  the multitude of rights and privileges enjoyed by married heterosexuals, plaintiffs’ attorneys said. Indiana has yet to file an answer to the complaints but Indiana Attorney General Greg Zoeller has vowed to defend the state’s marriage law. “The mere fact that plaintiffs challenge an Indiana statute does not mean the Legislature did anything wrong when it adopted a statute years before,” Zoeller said in a statement. “Plaintiffs are exercising their right to assert their federal claims in court, just as my office is doing its duty to defend our state’s duly-enacted statutes and defend the Legislature’s authority.”

Religious beliefs
April 10 is scheduled to be the first time an overturned marriage ban goes before a federal appellate court post-Windsor, in which the Supreme Court of the United States struck down a portion of the federal Defense of Marriage Act as unconstitutional for violating the 14th Amendment. The 10th Circuit Court of Appeals will hear arguments in Kitchen, et al. v. Herbert, et al., 13-4178, the case that overturned Utah’s prohibition on same-sex marriage.
A week later on April 17, the same court will hear Bishop, et al. v. Smith, et als marriage law. sex couples can procreate naturally and heterosexual marriage is the way states can ensure the parents remain together to care for and raise their children. Both Landenwich and Richard Mann, an Indianapolis attorney representing same-sex couples in Bowling, Bowling and Bruner v. Pence, et al., 1:14-CV-0405, scoffed at that argument. ” s marriage law violated the Indiana Constitution. The trial court dismissed the challenge, and the Indiana Court of Appeals affirmed in Morrison v. Sadler, 821 N.E.2d 15, 35  (Ind. Ct. App. 2005). ” sex marriage are based on the religious and moral code established by Christian beliefs. They contend the Establishment Clause prohibits government from choosing one set of religious values over another. However, Conkle countered the mere invocation of Christianity is not enough to toss the marriage ban. Legislatures can be  animated by their religious values when making decisions and courts have underscored that by finding religious reasons alone   do not render a statute or amendment unconstitutional. inspired values.

Quickly changing
Kenneth Falk, ACLU of Indiana legal director, argued Morrison before the Court of Appeals and, nine years later, is the lead attorney in the same-sex marriage suit, Fujii, et al. v. Pence, et al., 1:14-CV-404. He will be trying Fujii in a markedly different atmosphere where more of society is accepting of homosexual marriage.“It’s amazing to see how quickly things have changed, and it’s amazing to see so many young people, regardless  of political affiliation, who just don’t understand why this is a big deal at all,” he said. “It’s heartening.” Falk expects the trend to continue. Just as people now question why states in the past banned interracial marriages, future generations will wonder why there was contention over same-sex marriage.
The pace of change has not escaped Zoeller. He believes the challenges already in the federal appeals courts will likely reach the Supreme Court of the United States well ahead of Indiana’s cases. Still, he said he will defend Indiana’s law. “This is not personal advocacy on my part or that of the lawyers who represent the state,” Zoeller said. “Indiana courts previously have upheld Indiana’s marriage law, and the U.S. Supreme Court has previously permitted states to  license marriage as between one man and one woman. My office will continue to defend the state’s authority to set the licensing for marriage until and unless the U.S. Supreme Court rules otherwise.” To Falk, change in favor of same-sex marriage is inevitable. The decisions by the federal courts reflect the mainstream thought and if the courts do not uphold same-sex marriage, eventually legislatures will as more people with accepting attitudes get elected to public office, he said.•

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28 COMMENTS

  1. Hold on to your hats folks, the next “Rights” argument we will see, goes something like this:
    Where does the “State” get off even defining “Marriage” as between 2 People? Why not 3, 4, or even more?

    • I don’t have a problem with plural marriages. Utah is cracking the door open on that one, with the ruling in the Kody Brown suit. It is a matter of religious freedom, you know.

      • LKB, what’s your position on “Child Brides” then , be they Gay or Straight youngsters involved(taken by) with adults?

        • Children cannot enter into legal contracts, so there is no danger of “child brides.” Animals can’t enter into legal contracts, either, so Dr. Ben Carson can relax, too.
          I surely would not agree with the taking of child brides, and it cannot be a legal union in the US. I doubt I’d want to enter into a plural marriage, but then, I wouldn’t have to, just as I would not have to enter into a same-sex marriage. I’m just nobody to judge other people and how they practice their faith.

          • Homosexuals and lesbians don’t care about contracts, they will simply push to redefine “legal contracts”, age of consent and what constitutes an “animal. Of course they will agree to taking child brides. Homosexuals are pushing now for the redefinition of pedophilia;

            http://patdollard.com/2013/07/it-begins-pedophiles-call-for-same-rights-as-homosexuals/

            “However, psychiatrists are now beginning to advocate redefining pedophilia in the same way homosexuality was redefined several years ago.

            In 1973 the American Psychiatric Association declassified homosexuality from its list of mental disorders.

            They have been successful at getting you and others to accept their definition of marriage and will use your ignorance for that you deny.
            I feel sorry for the children they plan on molesting because you are unable to judge. So while you are so comfy in your liberal cocoon there those actively seeking to do the things you deny; ignorance for you does seem bliss.

      • So when Kody dies, how many wives should be eligible for his social security? Is it only men having multiple wives or could one of his wives also be married to another man or two at the same time? In fact, when they of age, could he also marry his wife’s daughters or sons?

        • I’m probably going to regret this, but the answer to question #1 is that the Social Security Administration would have to make a rule on that. The easiest solution would be to divide the benefits evenly among the wives. That is, the wives who choose to “draw off” his benefits. Those who work in their family business may choose not to do that.
          Question #2: Of course women could also have multiple spouses. Why would you consider the law would exclude them?
          Question #3: This is a pretty far out hypothetical, but I believe it would depend on whether or not the state they are in permits first-degree relatives to marry. I don’t know of any that do, but then, I’ve never considered marrying a blood relative. I guess they could file a suit if they aren’t given a marriage license, and let the courts settle it.

          • Point of clarification:

            “I’ve never considered marrying a blood relative.”

            I’ve never considered marrying a relative, blood, or otherwise.

          • If there is an issue in replying to me, then that is on you not me. I feel that your attitude is rather condescending.

            #1 So how many times can you divide one’s SS and have anything substantial for living? Besides,the amount is calculate by earnings not what one has paid into SS. You’re dodging the question by deferring to the SS administration.

            #2 I didn’t say I would exclude women. Your extrapolations misrepresents what others say an causes problems. I asked if women could have multiple partners with men who also have multiple partners? In other words marriage relationships would be more like connecting webs.

            #3 If procreation is not a factor in marriage qualification, then close relative is not an issue. There will be all sort of relationships you have never considered that will be asking for a license, but again you dodged the question. “I’ve never considered marrying a blood relative.” I’ve never considered marrying another man.

            The point is that you say you have no problem with polygamy when it’s something you really haven’t thought about. That is typical of this issue.

    • Actually Crash, here is the next wave to crash om the beaches of this issue. In th eprogressive Silicon Valley, it’s alright to discriminate against those who do not support homosexual marriage.

      It would be nice to see the CCO present opposing views and stories like more often.

      http://bits.blogs.nytimes.com/2014/04/03/eich-steps-down-as-mozilla-chief/?_php=true&_type=blogs&action=click&module=Search&region=searchResults&mabReward=&url=http%3A%2F%2Fquery.nytimes.com%2Fsearch%2Fsitesearch%2F%3Faction%3Dclick%26contentCollection%3DTechnology%26region%3DTopBar%26module%3DSearchSubmit%26pgtype%3DBlogs%23%2Fbrendan%2Beich%2Fsince1851%2Fallresults%2F1%2Fallauthors%2Fnewest%2F&utm_source=Albert+Mohler&utm_campaign=a37b7c4b61-The_Briefing_2013&utm_medium=email&utm_term=0_b041ba0d12-a37b7c4b61-307777085&_r=0

  2. It’s not discrimination to discriminate against discriminators. It is deserved irony.

  3. Good summation of the state of same-sex marriage in Indiana.

    1. Is same-sex marriage recognition coming to Indiana?

    (Article: “Of course.”)

    2. What exactly is there else to debate about that?

    (Nothing. Even the Indiana AG agrees with that. But the religious intolerant extremists sure are having a good time bantering the “What if’s!!!” Note: Uh…they’ll be decided in Court.”)

  4. Based upon my cursory review of Moxilla CEO issue,
    if the whole dust up was just a $1000 contribution to support prop 8 several years ago then this indeed is very ridiculous.

    If he had given to the ACLU, Planned Parenthood, or the Sierra club they would not have had a problem with it.

    There I’m agreeing with you guys on this one, errr mostly.

  5. Well if you want to slog through this; https://lwn.net/Articles/593112/#Comments and focus on his performance from the moment he founded Mozilla in 1998 to present. You will not find any evidence he allowed his personal views influence his behavior to those around him. In fact every pro-gay policy implemented within Mozilla and the Mozilla Foundation was done by his direction. And that’s just for starters.

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