TheStatehouseFile.com

INDIANAPOLIS – The ACLU of Indiana filed a lawsuit on Friday challenging the state’s current marriage law.

The suit – the third filed against the state’s marriage law in the last month – is aimed at gaining recognition for gay and lesbian couples who are married in states that allow same-sex marriages, as well as allow same-sex couples to wed in Indiana.

The American Civil Liberties Union of Indiana, with attorney Sean Lemieux of Indianapolis, filed the lawsuit on behalf of a widow whose wife died in 2011, one lesbian and one gay couple who are married, and two male couples and one female couple who would like to marry in Indiana.

Midori Fujii and her wife, who died of ovarian cancer, were married in Californian in 2008. But because Indiana does not recognize their marriage, after her partner’s death, Fujii could not claim the same kind of benefits a married man and woman could receive, including having the inheritance tax waivered.

The suit says, “same-sex couples wishing to marry in Indiana, or who live in Indiana but entered into a marriage in another jurisdiction, are denied the unique social recognition that marriage conveys.”

“Marriage has long played a fundamental role in our society,” said ACLU of Indiana Legal Director Kenneth Falk in a press release. “By failing to allow or recognize marriages for same-sex couples in Indiana, the state is perpetuating a discriminatory practice that cannot be squared with the Constitution.”

David Orentlicher, professor at the Indiana University Robert H. McKinney School of Law, said it’s not if, but more a matter of when same-sex marriages will be recognized.

Last year, the U.S. Supreme Court struck down a federal law defining marriage as the union of a man and a woman and left it up to states to make decisions about the definition of a legal marriage.

Since then, a district judge ruled that Kentucky must recognize marriages in other states. Also, a federal court has ruled that an amendment to the Oklahoma Constitution banning same-sex marriage violates the U.S. Constitution. That ruling came one week after a similar ruling was made on a same-sex marriage ban in Utah.

“The reality is things have changed,” Orentlicher said. “The Supreme Court didn’t decide the question about the constitutional right for same-sex marriage, but they did strike down the Federal Defense of Marriage Act.”

He said that as more states pass legislation with varying degrees of same-sex marriage recognition, it increases the likelihood that the Supreme Court may someday recognize same-sex unions on a federal level.

Zoeller’s office has defended the state’s marriage law against legal challenges in state court. And the Indiana Attorney General’s Office was one of the lead authors of two amicus briefs filed in the U.S. Supreme Court in support of other states’ laws defining marriage in a traditional way.

Jessica Wray is a reporter for TheStatehouseFile.com, a news website powered by Franklin College journalism students