PENNY BOGAN, in her official capacity as Boone County Clerk, et al., Defendants/Appellants.
On Appeal from the United States District Court for the Southern District of Indiana, No. 1:14-cv-355-RLY-TAB The Honorable Richard L. Young, Judge
BRIEF AND REQUIRED SHORT APPENDIX OF APPELLANTS
ROBERT V. CLUTTER Kirtley, Taylor, Sims, Chadd & Minnette, P.C. 117 W. Main Street Lebanon, IN 46052 (765) 483-8549 bclutter@kirtleytaylorlaw.com Counsel for Penny Bogan
DARREN J. MURPHY Assistant Hamilton County Attorney 694 Logan St. Noblesville, IN 46060 (317) 773-4212 dmurphy@ori.net Counsel for Peggy Beaver
GREGORY F. ZOELLER Attorney General of Indiana THOMAS M. FISHER Solicitor General Office of the Attorney General IGC South, Fifth Floor 302 W. Washington Street Indianapolis, IN 46204 (317) 232-6255 Tom.Fisher@atg.in.gov Counsel for Greg Zoeller and William C. VanNess II, M.D.
NANCY MOORE TILLER Nancy Moore Tiller & Associates 11035 Broadway, Suite A Crown Point, IN 46307 (219) 662-2300 nmt@tillerlegal.com Counsel for Michael A. Brown
TABLE OF AUTHORITIES ......................................................................................... iii JURISDICTIONAL STATEMENT ............................................................................... 1 STATEMENT OF THE ISSUES ................................................................................... 2 STATEMENT OF THE CASE ....................................................................................... 2 SUMMARY OF THE ARGUMENT .............................................................................. 7 STANDARD OF REVIEW ........................................................................................... 10 ARGUMENT ................................................................................................................ 11 I. Until the Supreme Court Addresses the Constitutionality of Traditional Marriage Definitions, Injunctive Relief of Any Type Against Such Laws Is Inappropriate ..................................................... 11 A. In challenges to traditional marriage definitions, courts around the Nation, including the Supreme Court, have ruled that injunctions are not appropriate prior to final appellate resolution of the constitutionality of such definitions ................ 12 B. Preliminary injunctive relief is inappropriate because Plaintiffs have not asserted any legally cognizable irreparable harm traceable to any Defendant ............................ 13 II. Plaintiffs Due Process and Equal Protection Same-Sex Marriage Claims Fail on the Merits ...................................................................... 19 A. For state government, marriage is regulation ........................... 19 B. No substantive constitutional right to same-sex marriage exists ............................................................................................ 21 C. Due process and equal protection principles do not compel recognition of other States same-sex marriages ........................ 24 1. There is no due process right to interstate marriage recognition, particularly where a marriage contravenes public policy .................................................. 25 2. Indianas refusal to recognize the Quasney-Sandler marriage does not contravene the Equal Protection Clause ................................................................................ 31 D. Indianas traditional marriage definition is constitutional ....... 34 1. Limiting marriage regulation to the union of a man and a woman does not implicate a suspect (or quasi- suspect) class ..................................................................... 34 Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
ii a. Traditional marriage does not discriminate based on sex ............................................................ 35 b. Traditional marriage does not discriminate based on sexual orientation ................................... 36 c. Homosexuals do not constitute a suspect class ..... 38 2. Traditional marriage satisfies constitutional review ...... 41 a. States recognize opposite-sex marriages to encourage responsible procreation, and this rationale does not apply to same-sex couples ....... 42 b. Many courts have rejected the theory that traditional marriage is about homosexual animus .................................................................... 46 3. No other limiting principle for marriage is apparent ...... 47 CONCLUSION ............................................................................................................. 52 CERTIFICATE OF WORD COUNT ........................................................................... 53 CERTIFICATE OF SERVICE ..................................................................................... 54 REQUIRED SHORT APPENDIX ............................................................................... 55
CASES Adams v. Howerton, 486 F. Supp. 1119 (C.D. Cal. 1980) ........................................................................ 43 Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) ................................................................................................ 30 Andersen v. King Cnty., 138 P.3d 963 (Wash. 2006) ............................................................................... 42, 43 Aviation Consumer Action Project v. Washburn, 535 F.2d 101 (D.C. Cir. 1976) ................................................................................ 10 Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971) ................................................................................ 43 Baker v. Nelson, 409 U.S. 810 (1972) ............................................................................................ 9, 21 Baker v. Wade, 769 F.2d 289 (5th Cir. 1985) .................................................................................. 38 Bartrom v. Adjustment Bureau, Inc., 618 N.E.2d 1 (Ind. 1993) ........................................................................................ 20 Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001) ................................................................................................ 41 Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1252 (N.D. Okla. 2014) ................................................................ 35 Bostic v. Rainey, 970 F. Supp. 2d 456 (E.D. Va. 2014) ...................................................................... 48 Bucca v. State, 128 A.2d 506 (N.J. Super. Ct. Ch. Div. 1957) ........................................................ 27 C.E.W. v. D.E.W., 845 A.2d 1146 (Me. 2004) ....................................................................................... 48 Catalano v. Catalano, 170 A.2d 726 (Conn. 1961) ..................................................................................... 27 Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
iv CASES [CONTD] Citizens for Equal Prot. v. Bruning, 455 F.3d 859 (8th Cir. 2006) ...................................................................... 19, 38, 43 City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) ................................................................................................ 39 Conaway v. Deane, 932 A.2d 571 (Md. 2007) ........................................................................................ 43 Cook v. Cook, 104 P.3d 857 (Ariz. Ct. App. 2005) ........................................................................ 27 Cook v. Gates, 528 F.3d 42 (1st Cir. 2008) ..................................................................................... 38 Cunningham v. Cunningham, 206 N.Y. 341 (1912) ................................................................................................ 28 Davis v. FEC, 554 U.S. 724 (2008) ................................................................................................ 15 Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995) ........................................................................................ 43 Equal. Found. of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289 (6th Cir. 1997) .................................................................................. 38 Freedom from Religion Found., Inc. v. Obama, 641 F.3d 803 (7th Cir. 2011) .................................................................................. 14 Gonzales v. North Twp. of Lake Cnty., 4 F.3d 1412 (7th Cir. 1993) .................................................................................... 14 Goodridge v. Dept of Pub. Health, 798 N.E.2d 941 (Mass. 2003) ................................................................................. 24 Goodwin v. George Fischer Foundry Sys., Inc., 769 F.2d 708 (11th Cir. 1985) ................................................................................ 26 Harris v. City of Zion, 927 F.2d 1401 (7th Cir. 1991) ................................................................................ 14 Hawkins v. Moss, 503 F.2d 1171 (4th Cir. 1974) ................................................................................ 25 Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
v CASES [CONTD] Hemphill v. Orloff, 277 U.S. 537 (1928) ................................................................................................ 25 Herbert v. Kitchen, 134 S. Ct. 893 (Jan. 6, 2014) .................................................................................. 12 Hernandez v. Robles, 805 N.Y.S.2d 354 (N.Y. App. Div. 2005) ................................................................ 35 Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) ............................................................................ 43, 44, 46 Hesington v. Estate of Hesington, 640 S.W.2d 824 (Mo. Ct. App. 1982) ...................................................................... 27 Hohe v. Casey, 868 F.2d 69 (3d Cir. 1989) ...................................................................................... 10 Illinois Bell Tel. Co. v. WorldCom Techs., Inc., 157 F.3d 500 (7th Cir. 1998) .................................................................................. 11 In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004) ............................................................... 43 In re M.C., 195 Cal. App. 4th 197 (2011) .................................................................................. 49 In re Marriage of J.B. & H.B., 326 S.W.3d 654 (Tex. App. 2010) ............................................................... 43, 44, 47 In re Parentage of L.B., 122 P.3d 161 (Wash. 2005) ..................................................................................... 48 Jackson v. Abercrombie, 884 F. Supp. 2d 1065 (D. Haw. 2012) ........................................................ 35, 42, 43 Johnson v. Robison, 415 U.S. 361 (1974) ................................................................................................ 41 Kelderhaus v. Kelderhaus, 467 S.E.2d 303 (Va. Ct. App. 1996) ....................................................................... 27 Kerrigan v. Commr of Pub. Health, 957 A.2d 407 (Conn. 2008) ..................................................................................... 24 Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
vi CASES [CONTD] King v. Mullins, 171 U.S. 404 (1898) ................................................................................................ 30 Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013) .................................................................... 12 LaChappelle v. Mitten, 607 N.W.2d 151 (Minn. Ct. App. 2000) .................................................................. 49 Lawrence v. Texas, 539 U.S. 558 (2003) ......................................................................................... passim Lofton v. Secy of the Dept of Children & Family Servs., 358 F.3d 804 (11th Cir. 2004) .......................................................................... 38, 43 Loving v. Virginia, 388 U.S. 1 (1967) .................................................................................. 21, 35, 37, 38 Manning v. Hunt, 119 F.3d 254 (4th Cir. 1997) .................................................................................. 11 Mason v. Mason, 775 N.E.2d 706 (Ind. Ct. App. 2002) .......................................................... 29, 30, 32 Morrison v. Sadler, 821 N.E.2d 15 (Ind. Ct. App. 2005) ................................................................. passim Osoinach v. Watkins, 180 So. 577 (Ala. 1938) ........................................................................................... 27 People v. Ezeonu, 588 N.Y.S.2d 116 (N.Y. Crim. Div. 1992) .............................................................. 27 Pers. Admr of Mass. v. Feeney, 442 U.S. 256 (1979) ................................................................................................ 37 Preston v. Thompson, 589 F.2d 300 (7th Cir. 1978) ............................................................................ 10, 17 Price-Cornelison v. Brooks, 524 F.3d 1103 (10th Cir. 2008) .............................................................................. 38 Reno v. Flores, 507 U.S. 292 (1993) ................................................................................................ 45 Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
vii CASES [CONTD] Roche v. Washington, 19 Ind. 53 (1862) ..................................................................................................... 29 Romer v. Evans, 517 U.S. 620 (1996) .......................................................................................... 39, 40 Sclamberg v. Sclamberg, 41 N.E.2d 801 (Ind. 1942) ...................................................................................... 29 Schroeder v. Hamilton Sch. Dist., 282 F.3d 946 (7th Cir. 2002) .................................................................................. 38 Sevcik v. Sandoval, 911 F. Supp. 2d 996 (D. Nev. 2012) ..................................................... 18, 35, 36, 43 Sherman v. Cmty. Consol. Sch. Dist. 21 of Wheeling Twp., 980 F.2d 437 (7th Cir. 1992) .................................................................................. 18 Siegel v. LePore, 234 F.3d 1163 (11th Cir. 2000) .............................................................................. 11 Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974) .............................................................. 43, 44 Smelt v. County of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005) ..................................................................... 43 SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014) .................................................................................. 38 Standhardt v. Superior Court ex rel. Cnty. of Maricopa, 77 P.3d 451 (Ariz. Ct. App. 2003) .............................................................. 42, 43, 46 Steel Company v. Citizens for a Better Environment, 523 U.S. 83 (1998) ............................................................................................ 13, 14 Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994) .................................................................................. 38 Tigner v. Texas, 310 U.S. 141 (1940) ................................................................................................ 41 United Air Lines, Inc. v. Air Line Pilots Assn, Intl, 563 F.3d 257 (7th Cir. 2009) .................................................................................. 10 Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
viii CASES [CONTD] United States v. Windsor, 133 S. Ct. 2675 (2013) ..................................................................................... passim V.C. v. M.J.B., 748 A.2d 539 (N.J. 2000) ........................................................................................ 49 Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464 (1982) ................................................................................................ 14 Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009) .................................................................................. 24 Veney v. Wyche, 293 F.3d 726 (4th Cir. 2002) .................................................................................. 38 Walgreen Co. v. Sara Creek Prop. Co., 966 F.2d 273 (7th Cir. 1992) .................................................................................. 10 Washington v. Davis, 426 U.S. 229 (1976) ................................................................................................ 36 Washington v. Glucksberg, 521 U.S. 702 (1997) .......................................................................................... 23, 24 Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005) .................................................................. 43 Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008) .................................................................................................... 10 Wolf v. Walker, No. 14-cv-64-bbc, 2014 WL 2693963 (W.D. Wis. June 13, 2014) .......................... 12 Woodward v. United States, 871 F.2d 1068 (Fed. Cir. 1989) ............................................................................... 38 FEDERAL STATUTES 28 U.S.C. 1292(a)(1) .................................................................................................... 2 28 U.S.C. 1331 ............................................................................................................ 1 28 U.S.C. 1343 ............................................................................................................. 1 Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
x STATE STATUTES [CONTD] Ind. Code 31-15-7-4 ................................................................................................... 21 Ind. Code 31-16-14-1 ................................................................................................. 20 Ind. Code 31-16-14-4 ................................................................................................. 20 Ind. Code 34-46-3-1(4) ............................................................................................... 20 Ind. Code 35-46-1-6 ................................................................................................... 20 Pub. L. No. 180-1986, 1 ............................................................................................... 3 Pub. L. No. 198-1997, 1 ............................................................................................... 3 RULES Fed. R. Civ. P. 65 ......................................................................................................... 17 OTHER AUTHORITIES Frank Bruni, The New Gay Orthodoxy, N.Y. Times, Apr. 5, 2014, available at http://www.nytimes.com/2014/04/06/opinion/sunday/bruni-the-new-gay- orthodoxy ................................................................................................................ 40 Harvey M. Applebaum, Miscegenation Statutes: A Constitutional and Social Problem, 53 Geo. L.J. 49 (1964) ............................................................................. 38 Jonathan Turley, One Big, Happy Polygamous Family, NY Times, July 21, 2011 ........................................................................................................... 51 Joseph Story, Commentaries on the Conflict of Laws 113a (Little Brown, & Co. 6th ed. 1865) ................................................................................................. 27 Morgan Little, Gay Marriage Movement Wins Significant Victories in 2013, LA Times (Dec. 9, 2013), available at http://www.latimes.com/nation/nation now/ la-pn-gay-marriage-movement-gains-2013-20131206,0,1888807. story#axzz2zdVzLoIA ............................................................................................. 39 Restatement (Second) of Conflict of Laws (1971) ....................................................... 26 Richard A. Posner, Sex and Reason (1992) ................................................................. 21 Richard Posner, Should There Be Same-Sex Marriage? And If So, Who Should Decide? 95 Mich. L. Rev. 1578 (1997) .................................................. 23, 24, 35, 40 Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
xi OTHER AUTHORITIES [CONTD] Steve Sanders, The Constitutional Right to (Keep Your) Same-Sex Marriage, 110 Mich. L. Rev. 1421 (2012) ................................................................................ 31 Tony Cook & Barb Berggoetz, Same-Sex Marriage Ban Wont be on November Ballot, The Indianapolis Star (Feb. 14, 2014), available at http://www.indystar.com/story/news/politics/2014/02/13/hjr-3-last-minute- maneuver-could-spare-2nd-sentence-/5455299/ .................................................... 39 Willystine Goodsell, A History of the Family as a Social and Educational Institution (The Macmillan Company 1915) ......................................................... 49
Same-sex couples and their minor children, including one couple that was married in Massachusetts, brought this action pursuant to 42 U.S.C. 1983 seeking a declaratory judgment, temporary restraining order, and preliminary and permanent injunctions against Defendants, state and local government officials, with regard to Indiana Code 31-11-1-1, which sets forth Indianas traditional definition of marriage. District Court Docket Number (Doc. No.) 1 at 33-34. Plaintiffs claimed that Section 31-11-1-1 violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. Id. at 33. The district court has subject-matter jurisdiction over this case under 28 U.S.C. 1331 and 1343. On May 8, 2014, the district court filed its Entry on Plaintiffs Motion for a Preliminary Injunction enjoining Defendants and all those acting in concert . . . from enforcing Indiana statute 31-11-1-1(b) against recognition of Plaintiffs, Niki Quasneys and Amy Sandlers, valid out-of-state marriage and holding that the State of Indiana must recognize their marriage. Appellants Short Appendix (Short App.) 13. Defendants filed a Notice of Appeal on May 8, 2014, seeking review of the district courts preliminary injunction. Doc. No. 66. Also on that date, Defendants filed with the district court a motion to stay enforcement of the preliminary injunction pending appeal. Doc. No. 68. That motion remains pending. This Court Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
2 has jurisdiction over this interlocutory appeal of an injunction pursuant to 28 U.S.C. 1292(a)(1). STATEMENT OF THE ISSUES 1. Whether a preliminary injunction commanding state and local government officials to recognize an out-of-state same-sex marriage is appropriate where (1) the Supreme Court and lower federal courts have universally stayed other similar injunctions whenever contested; (2) the injunction purports to remedy intangible harms of stigma and indignity apart from any cognizable Article III harm; and (3) the only possible cognizable Article III injury can be adequately addressed following final judgment. 2. Whether, for purposes of government-regulated marriage, the Fourteenth Amendments Due Process Clause requires States to license and regulate same-sex marriages, or recognize and regulate same-sex marriages licensed in other States. 3. Whether, for purposes of government-regulated marriage, the Fourteenth Amendments Equal Protection Clause requires a State to license and regulate same-sex marriages, or recognize and regulate same-sex marriages licensed in other States, on the same terms that the State licenses, recognizes, and regulates opposite-sex marriages. STATEMENT OF THE CASE 1. While Indianas current marriage-definition statute was enacted in 1997, Indiana has always defined marriage as the union of one man and one woman Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
3 and has never licensed, recognized, or regulated same-sex marriages. By 1818two years after Indiana became a State, the legislature had defined marriage as an opposite-sex institution. See Act of Jan. 26, 1818, ch. 34, 1, Laws of the State of Indiana 224 (1818) (That male persons of the age of fourteen years, and female persons of the age of twelve years . . . may be joined in marriage.). This definition has been substantially preserved for nearly two centuries. Before 1986, a statute provided that [a] male who has reached his seventeenth birthday may marry a female who has reached her seventeenth birthday . . . . Ind. Code 31-1-1-1. From 1986 to 1997, it said that [o]nly a female may marry a male[, and o]nly a male may marry a female. Pub. L. No. 180-1986, 1, 2 Acts 1986 1800 (codified at Ind. Code 31-7-1-2). In 1997, the legislature re-enacted this exact wording at Indiana Code Section 31-11-1-1(a), and added that [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. Pub. L. No. 198-1997, 1 (codified at Ind. Code 31-11-1-1(b)). 2. On March 10, 2014, Plaintiffs Marilyn Rae Baskin, Esther Fuller, Bonnie Everly, Linda Judkins, Dawn Carver, and Pamela Eanes filed a Complaint against Indiana Attorney General Greg Zoeller, Boone County Clerk Penny Bogan, Porter County Clerk Karen M. Martin, Lake County Clerk Michael A. Brown, and Hamilton County Clerk Peggy Beaver, seeking a declaration that Indianas current marriage definition statute, Indiana Code 31-11-1-1, violates Plaintiffs rights under the Due Process Clause and Equal Protection Clause of the Fourteenth Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
4 Amendment to the United States Constitution. Doc. No. 1 at 24. In their Complaint, Plaintiffs also sought a permanent injunction (1) enjoining enforcement by all Defendants of Indiana Code 31-11-1-1, and (2) requiring the Defendant Clerks to accept applications and issue marriage license 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. Id. Plaintiffs filed their First Amended Complaint on March 31, 2014. Appellants Appendix (App) 1. Plaintiffs Amended Complaint added seven new plaintiffs: Henry Greene, Glenn Funkhouser, and their minor child C.A.G.; and Nikole Quasney, Amy Sandler, and their minor children A.Q.-S. and M.Q.-S. Id. The Amended Complaint also added as a Defendant the Commissioner of the Indiana State Department of Health, William C. VanNess II, M.D. Id. at 2. In addition to the new parties, Plaintiffs Amended Complaint also sought relief relating specifically to Plaintiffs Amy Sandler and Nikole Quasney. Id. at 25- 26. Quasney and Sandler are Indiana residents who were married in the Commonwealth of Massachusetts on August 29, 2013. Id. at 9. They have two daughters, Plaintiffs A.Q.-S. and M.Q.-S. Id. Quasney suffers from Stage IV ovarian cancer. Id. at 10. In the Amended Complaint, the Quasney-Sandler couple and their children requested a temporary restraining order and/or preliminary injunction: i. enjoining Defendants and all those acting in concert from enforcing Indianas laws prohibiting recognition Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
5 of Plaintiffs Niki Quasney and Amy Sandlers legal out-of-state marriage; [and]
ii. should Plaintiff Niki Quasney pass away in Indiana, ordering DEFENDANT COMMISSIONER OF INDIANA STATE DEPARTMENT OF HEALTH and all 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 her as the surviving spouse; said order shall include a requirement that Defendant VanNess issues directives to local health departments, funeral homes, physicians, coroners, medical examiners, and others who assist with the completing of Indiana death certificates explaining their duties under the order of this Court[.]
Id. at 33-34. Plaintiffs also asked that any injunction require Commissioner VanNess to change all appropriate forms, certificates, policies, and instructions in order to recognize marriage applications and marriages of same-sex couples. Id. at 33. On March 31, 2014, the same day Plaintiffs filed their Amended Complaint, Plaintiffs Sandler, Quasney, A.Q.-S., and M.Q.-S. also filed a Motion for Temporary Restraining Order and Preliminary Injunction. 1 Doc. No. 31. All Plaintiffs filed a Motion for Summary Judgment on April 3, 2014, and Defendants filed a cross- Motion for Summary Judgment on April 22, 2014. Doc. Nos. 38, 55. On April 10, 2014, the district court held a hearing on the Motion for Temporary Restraining Order. Doc. No. 44. The court orally granted the motion that same day, with a formal Order following on April 18, 2014. Id.; App. 57.
1 The remaining plaintiffs (Baskin, Fuller, Everly, Judkins, Carver, Eanes, Greene, Funkhouser, and C.A.G.) filed a separate Motion for Preliminary Injunction on April 3, 2014, but withdrew the motion before the district court could rule on it. Doc. Nos. 35, 65. Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
6 Under the TRO, which expired by its own terms on May 8, 2014, Defendants were enjoined from enforcing Indiana Code 31-11-1-1(b) against Plaintiffs Quasney and Sandler and the state of Indiana was required to recognize only their marriage. App. 66-67. The TRO also required Commissioner VanNess, in the event that Quasney passes away in Indiana, to issue a death certificate listing Quasney and Sandler as married and Sandler as the surviving spouse. Id. at 66. The district court held a hearing on the parties cross-motions for summary judgment and on the Quasney-Sandler couples motion for preliminary injunction on May 2, 2014. Doc. No. 63. On May 8, 2014, the district court issued an order granting the motion for preliminary injunction. Short App. 2. The court ruled that Quasney and Sandler had a reasonable likelihood of success on the merits of their equal protection and due process claims, id. at 8-9, and that the balance of harms weighed in their favor. Id. at 13. The court enjoined Defendants from enforcing Indiana statute 31-11-1-1(b) against recognition of Plaintiffs, Niki Quasneys and Amy Sandlers, valid out-of-state marriage and required the State of Indiana [to] recognize their marriage. Id. In addition, in the event that Quasney passes away in Indiana, the court ordered Commissioner VanNess to issue a death certificate that records her marital status as married and lists Sandler as the surviving spouse. Id. Finally, as in its TRO, the court ordered Commissioner VanNess to issue directives to local health departments, funeral homes, physicians, coroners, and medical examiners explaining their duties with respect to the death certificate. Id. at 13-14. Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
7 The Order stated that the preliminary injunction will remain in force until the court renders judgment on the merits of the Plaintiffs claims. Id. at 14. There has been no ruling on the merits as of this filing; the parties cross-motions for summary judgment remain pending. Defendants Zoeller, VanNess, Bogan, Brown, and Beaver filed their Notice of Appeal on May 8, 2014. Doc. No. 66. That same day, these Defendants filed in the district court a Motion for Stay Pending Appeal. 2 Doc. No. 68. Briefing is completed on that motion and the parties now await the district courts decision. SUMMARY OF THE ARGUMENT
With respect to state governments involvement, marriage is regulation. It is a means of enticing individuals whose sexual intercourse may produce children to enter voluntarily into a relationship that the government recognizes and regulates for the sake of protecting and providing for any children the couples sexual union may produce. The only couples that fall into this category are opposite-sex couples, which is why (at least as a governmental matter) marriage has traditionally been limited to them. Nowadays, challenges to traditional marriage definitions and regulatory structures are hardly novel, but they are no less startling and noteworthy for their stated objectiveto extend voluntary government regulation, as a matter of constitutional imperative, to couples defined by sexual activity the Supreme Court declared off limits to mandatory government regulation in Lawrence v. Texas.
2 Defendant Karen Martin is not a party to this appeal and did not participate in the stay motion. Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
8 The reason same-sex couples seek this recognition, of course, is that, while a form of regulation as a governmental matter, marriage also carries positive social and cultural connotations, as well as some exclusive governmental benefits and protections. But government is not society or culture and cannot compel social acceptance by fiat. And the point of marriages associated benefits and protections is to encourage child-rearing environments where parents care for their biological children in tandem. Same-sex couples do not, as sexual intimates, prompt the same regulatory concerns as opposite-sex couples. Accordingly, States need not extend the marriage regulatory scheme to same-sex couples. This appeal arises from a preliminary injunction ostensibly requiring Defendants to recognize a Massachusetts same-sex marriage on constitutional grounds. The constitutional claims fundamentally lack merit, but even aside from that, a preliminary injunction is not appropriate in this case. First, the Supreme Court and lower federal courts have stayed all contested injunctionseven final, permanent injunctionsenforcing similar same-sex marriage claims. These stays demonstrate that, on balance, injunctive relief of any sort concerning same-sex marriage is not justified until the Supreme Court addresses the issue. Second, the injunction targets alleged psychological harms such as stigma, indignity, and the like, but such harms are not cognizable under Article III, nor are they traceable to any Defendant in the case. The only concrete, tangible harm traceable to a Defendant is a potential harm having to do with Quasneys death certificate. But Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
9 that is not an appropriate target for preliminary relief because it can adequately be addressed with a final, permanent injunction, if necessary. On the merits, the Quasney-Sandler couples claims must fail for the fundamental points made above, but also, more doctrinally, because the rights they claim have no grounding in constitutional text, history, or structure. There is no due process or equal protection right to have ones out-of-state same-sex marriage recognized at home, and no due process or equal protection right to same-sex marriage outright. Supreme Court cases recognizing a right to marriage have only to do with opposite-sex couples, not same-sex couples. The Supreme Courts merits decision rejecting same-sex marriage claims in Baker v. Nelson still controls, and is unmitigated by last years decision in United States v. Windsora case expressly confined to its facts that in any case reaffirms broad state authority over marriage. The most troubling aspect of the constitutional argument for same-sex marriage, however, is that it has no limiting principle. Neither plaintiffs in this case nor courts awarding same-sex marriage rights in other cases have identified any government objective to be attained by regulating the relationships of same-sex couples. The short-range implication of the efforts to constitutionalize same-sex marriage is that all relationships are entitled to such recognition and regulation, whether they involve sex or not, whether they involve two people or more. The long-range implication is that government has no discernible reason to recognize and regulate marriage as a limited set of relationships. Ultimately, that is, there is Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
10 no constitutional argument for same-sex marriage, only an argument against marriage. This Court should reject that argument and reverse the district court. STANDARD OF REVIEW A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Preliminary injunctive relief must be narrowly tailored to remedy the specific harm shown. Aviation Consumer Action Project v. Washburn, 535 F.2d 101, 108 (D.C. Cir. 1976). A district courts grant of a preliminary injunction is reviewed de novo as to its legal conclusions, for abuse of discretion as to its balance of the equities, and for clear error as to its factual findings. See United Air Lines, Inc. v. Air Line Pilots Assn, Intl, 563 F.3d 257, 269 (7th Cir. 2009). In the injunction context, irreparable harm is harm that is not rectifiable by the entry of a final judgment. Walgreen Co. v. Sara Creek Prop. Co., 966 F.2d 273, 275 (7th Cir. 1992) (citations omitted). And while in some cases [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), [c]onstitutional harm is not necessarily synonymous with the irreparable harm necessary for issuance of a preliminary injunction. Hohe v. Casey, 868 F.2d 69, 73 (3d Cir. 1989). Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
11 Even where constitutional violations are alleged, there must be a clear showing of irreparable injury which is neither remote nor speculative, but actual and imminent. Manning v. Hunt, 119 F.3d 254, 264-65 (4th Cir. 1997) (internal quotation marks omitted). See also Siegel v. LePore, 234 F.3d 1163, 1177-78 (11th Cir. 2000) (per curiam) (rejecting the proposition that the irreparable injury needed for a preliminary injunction can properly be presumed from a substantially likely equal protection violation (citation omitted)). In addition to irreparable harm, a plaintiff seeking a preliminary injunction must also show that the probability of success on the merits is sufficiently highor the injury from the enforcement of the order sufficiently greatto warrant a conclusion that the balance of error costs tilts in favor of relief. Illinois Bell Tel. Co. v. WorldCom Techs., Inc., 157 F.3d 500, 503 (7th Cir. 1998). When the party opposing the motion for a preliminary injunction is a political branch of government, the restraint for issuing such an injunction is particularly high due to public policy considerations, as the court must consider that all judicial interference with a public program has the cost of diminishing the scope of democratic governance. Id. ARGUMENT
I. Until the Supreme Court Addresses the Constitutionality of Traditional Marriage Definitions, Injunctive Relief of Any Type Against Such Laws Is Inappropriate
Indianas traditional definition of marriage merely governs the terms of governmental regulation and benefits; it does not interfere with private conduct. Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
12 Accordingly, this constitutional challenge to that longstanding definition is fundamentally unsuited to preliminary injunctive relief. There is no cognizable irreparable harm caused by the traditional definition of marriagethe only meaning of marriage that has ever existed in Indianawhile the parties await a decision on the merits of this case. A. In challenges to traditional marriage definitions, courts around the Nation, including the Supreme Court, have ruled that injunctions are not appropriate prior to final appellate resolution of the constitutionality of such definitions
On January 6, 2014, the Supreme Court stayed a permanent injunction issued by the United States District Court for the District of Utah in Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013), pending final disposition of an appeal to the Tenth Circuit. Herbert v. Kitchen, 134 S. Ct. 893 (Jan. 6, 2014). In that case, three same-sex couples challenged Utahs constitutional amendment and statutes upholding the traditional definition of marriage. Kitchen, 961 F. Supp. 2d at 1187. The district court entered a permanent injunction, now fully stayed by the Supreme Court, that required officials to issue marriage licenses to same-sex couples and to recognize same-sex marriages validly performed in other States. Id. at 1215. To date, in light of Supreme Court guidance on the issue, in no case does a fully contested preliminary or final permanent injunctive decree precluding enforcement of traditional marriage definitions remain in full effect. Wolf v. Walker, No. 14-cv-64-bbc, 2014 WL 2693963, at *6 (W.D. Wis. June 13, 2014) ([S]ince [Kitchen], every statewide order enjoining the enforcement of a ban on same-sex marriage has been stayed, either by the district court or the court of Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
13 appeals, at least when the state requested a stay.). The thrust of these cases is difficult to miss: The traditional definition of marriage has been around a long time. Its validity is hotly contested, but the outcome of these legal disputes is uncertain, such that the status quo should remain until the Supreme Court squarely addresses the issue. B. Preliminary injunctive relief is inappropriate because Plaintiffs have not asserted any legally cognizable irreparable harm traceable to any Defendant
According to the district court, preliminary injunctive relief is appropriate in this case because Indianas non-recognition statute harms the Plaintiffs in numerous tangible and intangible ways[.] Short App. 5. Specifically, the district court concluded that Indiana Code 31-11-1-1 harms Quasney and Sandler by: (1) denying them the dignity of marital status, id.; (2) causing Niki to drive to Illinois where her marriage will be recognized in order to receive medical care, id. at 5, 11; (3) denying Quasney a particular form of death certificate, id. at 11; and (4) failing to recognize the couples Massachusetts marriage and thus causing them constitutional harm, id. at 10-11. None of these alleged harms, however, is sufficient to justify preliminary injunctive relief. 1. To begin, perception of slight to ones dignity is a type of psychological harm not cognizable under Article III. The district court held that pass[ing] away without enjoying the dignity that official marriage status confers constitutes concrete, tangible injuries that are fairly traceable to Defendants and can be remedied by a preliminary injunction. Short App. 11-12. But in Steel Company v. Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
14 Citizens for a Better Environment, 523 U.S. 83 (1998), the Court rejected this very theory for relief, stating that psychic satisfaction is not an acceptable Article III remedy because it does not redress a cognizable Article III injury. Id. at 107; see also Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 485-86 (1982) ([P]sychological consequences presumably produced by observation of conduct with which one disagrees . . . is not an injury sufficient to confer standing under Art. III, even though the disagreement is phrased in constitutional terms.). This Court, too, has denied relief based on a perceived slight, or a feeling of exclusion[.] See, e.g., Freedom from Religion Found., Inc. v. Obama, 641 F.3d 803, 806-07 (7th Cir. 2011) ([H]urt feelings differ from legal injury.) In Harris v. City of Zion, 927 F.2d 1401 (7th Cir. 1991), it held that [t]he requirement that the plaintiff allege an injury-in-fact, whether economic or noneconomic, excludes simple indignation as a basis for Article III standing. That the plaintiff may be offended by the defendants conduct is not enough to confer standing. Id. at 1405; see also Gonzales v. North Twp. of Lake Cnty., 4 F.3d 1412, 1416 (7th Cir. 1993) (Offense to moral . . . sensitivities does not constitute an injury in fact and is insufficient to confer standing.). Here, aside from the particular death certificate they seek, the Quasney- Sandler couple alleges no unequal treatment by any Defendant, so their alleged dignitary harms are not cognizable under Article IIIlet alone sufficient to warrant injunctive relief. Article III standing to seek an injunction respecting the death Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
15 certificate does not equate with standing to seek a broader injunction vaguely demanding unspecified recognition of their marriage. As the Supreme Court has plainly held, standing rights are not dispensed in gross, but must be evaluated with respect to each claim for relief. Davis v. FEC, 554 U.S. 724, 734 (2008). 2. Next, no Defendant even remotely causes Quasney to seek medical care in Illinois rather than at a local hospital. Quasneys allegations on the subject blame local hospital personnelwho would not afford her the family rate at their health clubnot any Defendant. App. 53-54. The hospitals decision to base its health club family rate on Indianas definition of marriage is its own doing and not a necessary consequence of Indiana law, much less of any actions or omissions by any Defendant. Defendants do not control Indiana hospitals and cannot require personnel at those hospitals to accord recognition to Quasney and Sandler as a married couple, so there is nothing they can do to address the situation. Indeed, there is no reason to believe that Quasney even benefits from the present injunction in relation to her careshe has never asserted that, with an injunction in hand, she has sought treatment locally rather than by driving to Illinois. Quasneys decision to seek medical treatment in Illinois does not constitute Article III injury that justifies federal jurisdiction, much less preliminary injunctive relief, because it has no direct connection to these Defendants or the Indiana traditional marriage definition. 3. Quasney also claims she will be injured if she passes away before conclusion of the litigation and her death certificate lists her as unmarried. A Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
16 preliminary injunction respecting Quasneys death certificate is inappropriate, however, because any harm would not be irreparable. As the declaration of Hilari A. Sautbine, a staff attorney for the Indiana State Department of Health, makes clear, a certificate of death can be amended at the request of any interested person. App. 69. Any refusal to honor such a request is subject to legal action in state court. Id. at 69-70. If it later turns out that Quasneys out-of-state same-sex marriage is entitled to recognition in Indiana, her certificate of deathwhich is an electronic recordcould easily be corrected. Accordingly, there is no likely irreparable harm with respect to the accuracy of the certificate of death itself as a permanent record. Quasney claims to suffer cognizable harm remediable by an injunction based on her knowledge of what her death certificate will say, id. at 55, but that claim fails as well. This is nothing more than an injunction targeting psychological harm, as there is no present unequal treatment to remedy. The possibility of future unequal treatment can justify a preliminary injunction only where the future harm could not adequately be redressed following judgment, which is not the case here. Furthermore, even with a preliminary injunction governing her death certificate in place, Quasney cannot know anything that would assuage any perceived insults to her dignity. She claims to suffer indignity knowing that Indiana does not recognize her marriage or afford it equal status to the marriages of opposite-sex couples. Id. It is hard to follow how the preliminary injunction entered by the district court addresses any such indignity. All Quasney knows is that a district court has ordered the State to do something respecting her death Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
17 certificate when she passes away. At present she cannot know whether that action will actually occur, because of course she may outlive the litigation, or, if sadly she does not, the death certificate may ultimately be changed to show her as unmarried if Defendants prevail in the end, even if it lists her as married for a time by dint of a federal judges decree. So, with a preliminary injunction, Quasney cannot know what her death certificate will say permanently. All she can know is that her death certificate will permanently list her as married if and only if her legal position ultimately carries the day. Neither that knowledge, nor the likelihood that her position will prevail on the merits, can be affected by the issuance of a preliminary injunction. Accordingly, the rationale for the preliminary injunction is reduced to circularity: A preliminary injunction was warranted only because it gave Quasney the satisfaction of knowing that a preliminary injunction was issued. It is hard to imagine a more existentially slippery form of preliminary relief or one less justified by Rule 65 and case law. 4. The district courts final ground for injunctive reliefthe alleged violation of the Quasney-Sandler couples constitutional rightsis also an insufficient basis for a preliminary injunction in this case. Ongoing violations of constitutional rights can constitute irreparable harm justifying an injunction only where the defendants are actually responsible for such ongoing violations. See Preston v. Thompson, 589 F.2d 300, 301 (7th Cir. 1978) (upholding preliminary injunction requiring prison officials to provide two showers a week to all inmates Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
18 and a daily hour of yard recreation to certain other inmates in order to remedy due process violation). Here, no current cognizable injuries suffered by Quasney and Sandler are traceable to any Defendant. Nothing that Defendants have said or done has caused Quasney to seek treatment in Illinois rather than Indiana, or caused any of the other tangible or intangible harms that Quasney and Sandler allege. Nor can any of the Defendants take or forego any action that can restore their dignity. See Sevcik v. Sandoval, 911 F. Supp. 2d 996, 1018 (D. Nev. 2012) (explaining that [a]ny stigma arising out of the States refusal to recognize same-sex relationships as marriages simply cannot be removed by judicial decree). The district court stated that a preliminary injunction enjoining Defendants from enforcing the non-recognition statute against Plaintiffs will . . . redress their claimed injury. Short App. 5. But no Defendant has ever enforced the non- recognition statute against Quasney and Sandleror against anyone else, for that matter. The statutes cited by the district court in support of this point have nothing to do with Quasney. Indiana Code 4-6-1-6 pertains to the Attorney Generals general duties to attend to litigation, but that has no bearing on Quasney (or on any other plaintiff, for that matter). See Sherman v. Cmty. Consol. Sch. Dist. 21 of Wheeling Twp., 980 F.2d 437, 441 (7th Cir. 1992) (rejecting lawsuit against a state Attorney General based only on his general duty to enforce the laws of the State). Indiana Code 31-11-4-2 precludes clerks from issuing marriage licenses in contravention of Section 31-11-1-1, but Quasney and Sandler do not seek a marriage Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
19 license. Thus, enjoining Defendants cannot plausibly redress any constitutional injuries to them. * * * Quasney and Sandler have not demonstrated sufficient cognizable harm to justify a preliminary injunction. An injunction against these Defendants seeking to assuage the couples asserted injuries, without any connection to actions or duties of the Defendants, should be reversed. II. Plaintiffs Due Process and Equal Protection Same-Sex Marriage Claims Fail on the Merits
The district court concluded that the Quasney-Sandler couples due process and equal protection claims are likely to succeed, implicitly declaring that the wave of persuasive cases supporting Plaintiffs position permits no dissent. Short App. 7-8 (stating that the court is not persuaded that . . . Indianas anti-recognition law will suffer a different fate than those around the country and citing recent same- sex marriage cases decided on due process grounds). Any prognostication in favor of Plaintiffs is premature, however. The only federal appellate case on point upheld Nebraskas traditional marriage definition. See Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 871 (8th Cir. 2006). This Court should likewise uphold Indianas traditional marriage definition on the merits. A. For state government, marriage is regulation
Fundamentally, as far as state government is concerned, marriage is a regulatory scheme. Government has a compelling interest in making sure children are properly cared for, so it uses marriage as a way to attract and regulate those Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
20 whose sexual intercourse produces children, with the objective that they will stay together and raise the children in tandem. A demand for same-sex marriage as a matter of constitutional right is about extending that carrot-and-stick regulation, not about demanding that government affirm homosexual behavior just for the sake of doing so. Some legal benefits of marriagethe regulatory carrotsare exclusive to that institution (meaning they cannot be replicated by private agreement). They include, among other things, testimonial privileges (Ind. Code 34-46-3-1(4)), joint tax filing (Ind. Code 6-3-4-2), the right to receive a share of a deceased spouses estate even against the spouses will (Ind. Code 29-1-2-1), and the presumption that fathers are the legal parents of children born to their marriages (Ind. Code 31-14-7-1). But many exclusive protections of marriage carry the heavy hand of government and constitute regulatory sticks. These include not only the aforementioned presumption of parentage, but also spousal support obligations enforceable both by civil remedy (Ind. Code 31-16-14-1, -4) and criminal sanction (Ind. Code 35-46-1-6); joint liability for unpaid debts (Bartrom v. Adjustment Bureau, Inc., 618 N.E.2d 1, 8 (Ind. 1993)); an adulterous spouses forfeiture of a share in the estate or trust of a deceased spouse (Ind. Code 29-1-2-14; Ind. Code 30-4-2.1-9); prohibition on entering into another marriage absent legal dissolution (Ind. Code 31-11-1-3); requirement of a judicial decree according to statutory standards and protocols to effectuate legal dissolution (Ind. Code 31-15-2-3, -16); Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
21 and the just and reasonable division of all property upon legal dissolution, regardless of who acquired the property or when (Ind. Code 31-15-7-4). As the Court considers claims of constitutional right, it is important that it not lose sight of the essential regulatory nature of government-conferred marriage. B. No substantive constitutional right to same-sex marriage exists
While the Supreme Court has said that [m]arriage is one of the basic civil rights of man, fundamental to our very existence and survival, Loving v. Virginia, 388 U.S. 1, 12 (1967) (internal quotation marks omitted), neither it (nor this Court) has held that the constitutional right to marry encompasses same-sex marriages. Cf. Richard A. Posner, Sex and Reason 312-13 (1992) ([B]ut of course the Court [in Loving] was thinking of heterosexual marriage.). To the contrary, in Baker v. Nelson, 409 U.S. 810 (1972), decided just five years after Loving, the Court dismissed for want of a substantial federal questiona decision on the meritsa case presenting the right to same-sex marriage as both a matter of due process and equal protection. App. 75. The Supreme Courts decision in United States v. Windsor, 133 S. Ct. 2675 (2013), striking down Congresss decision to confine marriage to opposite-sex couples for federal purposes even if a same-sex marriage was recognized by a state, does not undermine Baker. First, simply as a matter of doctrinal contours, Windsor is self-limited. In no uncertain terms, the Windsor majority forcefully stated that [t]his opinion and its holding are confined to [New Yorks] lawful marriages. Id. at Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
22 2696. It is therefore improper to extrapolate from this opinion any rule that affects any other States marriage laws. Nor, even aside from that disclaimer, does the logic of Windsor imply that traditional state marriage laws are invalid. At the time Congress enacted Section 3 of the federal Defense of Marriage Act (DOMA) in 1996, the federal government largely treated all marriages recognized by a State as valid. When States started recognizing same-sex marriages beginning in 2003, that was no longer true because DOMA limited federal recognition to opposite-sex couples. Congresss decision to change the terms for accepting state marriagesnot the baseline definition of marriage itselfis what troubled the Court. See id. at 2693-94. Thus, the Court invalidated Section 3 of DOMA as having the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. Id. at 2696 (emphasis added). It did so principally because Section 3 of DOMA was an unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage . . . . Id. at 2693 (emphases added). It was critical to the Courts analysis that New York had previously granted marital interests that DOMA then threatened. Id. at 2689. While the Constitution gives its blessing to New York to recognize out-of- jurisdiction same-sex marriages, id. at 2692 (explaining that New Yorks actions were without doubt a proper exercise of its sovereign authority within our federal system, [which] allow[s] the formation of consensus respecting the way the members of a discrete community treat each other in their daily contact and Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
23 constant interaction with each other), it is a considerable leap to conclude that Windsor establishes a singular vision of a fundamental right to marriage that must be respected by all States. See Richard Posner, Should There Be Same-Sex Marriage? And If So, Who Should Decide? 95 Mich. L. Rev. 1578, 1579 (1997) (finding unconvincing the argument that the courts in the name of the Constitution should force acceptance of same-sex marriage on all the states at once). Traditional state marriage definitions are, as Windsor amply affirms, the usual course of business. Id. at 2691. Supreme Court precedent more broadly does not support the notion that there is a fundamental constitutional right to same-sex marriage, or that any fundamental right to marry includes same-sex couples. Fundamental rights are those that are objectively, deeply rooted in this Nations history and tradition . . . and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed. Washington v. Glucksberg, 521 U.S. 702, 720- 21 (1997) (internal quotations and citations omitted). A careful description of the asserted fundamental liberty interest is required, and courts must exercise the utmost care whenever [they] are asked to break new ground in this field . . . . Id. at 720, 721 (internal quotations and citations omitted). Marriage is a foundational and ancient social institution whose meaning, until recently, was universally understood as limited to the union of a man and a woman. Windsor, 133 S. Ct. at 2689. No separate fundamental right to same-sex marriage is deeply rooted in this Nations history and tradition . . . and implicit in Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
24 the concept of ordered liberty. Glucksberg, 521 U.S. at 720-21. See also Posner, Should There Be Same-Sex Marriage?, supra, at 1579 ([H]omosexual marriage has nowhere been a common practice, even in societies in which homosexuality was common.). Barely a decade ago, in 2003, Massachusetts became the first State to extend the definition of marriage to same-sex couples. Goodridge v. Dept of Pub. Health, 798 N.E.2d 941, 969 (Mass. 2003). Other state supreme courts followed suit, see Kerrigan v. Commr of Pub. Health, 957 A.2d 407, 482 (Conn. 2008), Varnum v. Brien, 763 N.W.2d 862, 906 (Iowa 2009), but only twelve States and the District of Columbia have extended marriage to same-sex unions legislatively. Same-sex marriage cannot be transformed into a fundamental right by repackaging marriage as the freedom to select the partner of ones choice, Doc. 36 at 8, because that definition leaves out the only part of the asserted right that matters: that the claimants seek this right as same-sex couples. C. Due process and equal protection principles do not compel recognition of other States same-sex marriages
The district court found that, as a general matter, Indiana recognizes out- of-state marriages but does not so recognize out-of-state same-sex marriages. Short App. 9. From this observation alone it concluded that Plaintiffs were likely to succeed on their constitutional claim for interstate recognition. Id. Indianas treatment of other States marriages, however, turns on public policy considerations and, more importantly, a common set of assumptions as to what constitutes a marriage. The district courts analysis that whether a State must recognize Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
25 interstate same-sex marriages depends on that States idiosyncratic case law addressing other marriagesrather than national constitutional normswould deprive States of equal footing under the Constitution. Ultimately, whether Indiana can refuse to recognize out-of-state same-sex marriages turns entirely on whether Indiana may itself adhere to the traditional definition of marriage. The staggering implications of Plaintiffs broader claim for interstate marriage recognition starkly illustrate its foundational flaws. 1. There is no due process right to interstate marriage recognition, particularly where a marriage contravenes public policy
To begin, there is no federal due process right to have a license issued in one Statewhether for professional, weapons, driving, or marriage purposestreated as valid by government and courts in another. See Hawkins v. Moss, 503 F.2d 1171, 1176 (4th Cir. 1974) ([L]icenses to practice law granted by . . . one state, have no extraterritorial effect or value and can vest no right in the holder to practice law in another state.); see also Hemphill v. Orloff, 277 U.S. 537, 544, 549, 551 (1928) (holding, against a due process challenge, that a corporation permitted to conduct business in Massachusetts may not do so in Michigan without obtaining a certificate of authority from the Michigan Secretary of State). Otherwise, States would have to recognize and treat as valid one anothers law licenses, medical licenses, concealed-carry gun permits, drivers licenses, and notary public commissions, just to name a few. 3
3 Even if an out-of-state marriage is viewed as a purely private contractwhich it is not state and federal constitutions permit rejection of out-of-state contracts that contravene Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
26 A constitutional theory in contravention of these baseline principles would effectively require Indiana to conform its marriage policy to the varying marriage policies enacted in other States. Rather than fostering the States freedom to experiment with different approaches to difficult social questions, a right to interstate marriage recognition would empower one laboratory to commandeer the others, essentially nationalizing the marriage policy of the most inventive State, including those that might one day permit plural marriages. This is plainly contrary not only to the usual constitutional rule, but also to the Courts specific observations about state marriage law prerogatives in Windsor, 133 S. Ct. at 2689- 91. Marriage-recognition principles are rooted in the common law of comity, not due process or any other substantive state or federal constitutional doctrine. The common law choice-of-law starting point is usually the lex loci rule, which says a marriage valid in the State of licensure is valid in other States as well. But that is not, and never has been, the end of the matter. The Restatement (Second) of Conflict of Laws 283(2) (1971) states that even if a marriage satisfies the requirements of the state where the marriage was contracted, that marriage will not be recognized as valid if it violates the strong public policy of another state which had the most significant relationship to the spouses and the marriage at the time of the marriage. This public policy exception comports with the Nations history, legal traditions, and practices, and indeed dates back before the
public policy. See Goodwin v. George Fischer Foundry Sys., Inc., 769 F.2d 708, 712-13 (11th Cir. 1985) (A state may refuse to enforce a contract, valid in the state where made, if the contract conflicts with the public policy of that state.). Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
27 Fourteenth Amendment. See Joseph Story, Commentaries on the Conflict of Laws 113a, at 168 (Little Brown, & Co. 6th ed. 1865) (noting that exceptions to out-of- state marriage recognition included those positively prohibited by the public law of a country from motives of policy). Such public policy exceptions exist across the country. See, e.g., Cook v. Cook, 104 P.3d 857, 860 (Ariz. Ct. App. 2005) ([W]e have long recognized that the legislature of this state, notwithstanding the general rule, may declare what marriages are valid (or void) in Arizona even if the marriage pertains to persons who were in good faith domiciled in the state where the ceremony was performed and the marriage is valid in that state.) (internal quotations omitted); Kelderhaus v. Kelderhaus, 467 S.E.2d 303, 304-05 (Va. Ct. App. 1996) (holding that a bigamous marriage entered into in California is void as a matter of law because it is contrary to the laws of Virginia and [its] public policy) (internal citations and quotations omitted); People v. Ezeonu, 588 N.Y.S.2d 116, 117-18 (N.Y. Crim. Div. 1992) (holding that bigamous marriage entered into in Nigeria is repugnant to public policy of New York and therefore void); Hesington v. Estate of Hesington, 640 S.W.2d 824, 826-27 (Mo. Ct. App. 1982) (denying recognition of a common-law marriage consummated on a temporary trip to another State); Catalano v. Catalano, 170 A.2d 726, 728-29 (Conn. 1961) (refusing to recognize uncle-niece marriage lawfully contracted in Italy); Bucca v. State, 128 A.2d 506, 510 (N.J. Super. Ct. Ch. Div. 1957) (same); Osoinach v. Watkins, 180 So. 577, 581 (Ala. 1938) (refusing to recognize a marriage lawfully contracted in Georgia between a man and Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
28 his uncles widow); Cunningham v. Cunningham, 206 N.Y. 341, 349 (1912) (holding that a minor female who validly married an adult male in New Jersey could annul her marriage in New York as repugnant to . . . public policy and legislation). In none of these cases was there any suggestion whatever that federal due process rights might guarantee interstate marriage recognition. Indiana is entirely free, therefore, to treat as void any marriages from other States that contravene state public policy. Statutorily, the State not only refuses to recognize out-of-state same-sex marriages, but also any out-of-state marriage entered into for the purpose of evading Indianas marriage lawsin terms equally applicable to both same-sex and opposite-sex couples. Indiana Code 31-11-8-6 provides that: [a] marriage is void if the parties to the marriage:
(1) are residents of Indiana;
(2) had their marriage solemnized in another state with the intent to:
(A) evade IC 31-11-4-4 [requiring a marriage license] or IC 31-11-4-11 [precluding issuance of a license if the applicant is mentally incompetent or under the influence]; and
(B) subsequently return to Indiana and reside in Indiana; and
(3) without having established residence in another state in good faith, return to Indiana and reside in Indiana after the marriage is solemnized.
Furthermore, as a matter of common law, in what is apparently the only Indiana Supreme Court decision that addresses an out-of-jurisdiction marriage that Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
29 could not have been entered into in Indiana, the court refused to recognize the marriage on public policy grounds. Sclamberg v. Sclamberg, 41 N.E.2d 801, 802-03 (Ind. 1942) (treating as void a marriage between uncle and niece). The parties in that case conceded voidness, but conceding what the law obviously required does not undermine the legal principle employed. The Indiana Supreme Court has otherwise made it clear that the lex loci principle applies only against a backdrop where all agree as to what constitutes a valid marriage. More than one hundred forty years ago, the court asked, [W]hat . . . then constitutes the thing called a marriage? What is it in the eye of the jus gentium [law of nations]? It is the union of one man and one woman, so long as they both shall live, to the exclusion of all others, by an obligation which, during that time, the parties can not, of their own volition and act, dissolve, but which can be dissolved only by authority of the State. Roche v. Washington, 19 Ind. 53, 57 (1862). Continuing, the court said, [n]othing short of this is a marriage. And nothing short of this is meant, when it is said, that marriages, valid where made, will be upheld in other States. Id. This passage confirms the implicit understanding underlying the lex loci principlethat it works only if all States basically agree on what constitutes a valid marriage. When other States recognize same-sex marriages, but Indiana does not, that prerequisite is not met. The district court cited one decision from the Indiana Court of Appeals that gave retrospective effect to a marriage from another jurisdiction that could not have been undertaken in Indiana, Mason v. Mason, 775 N.E.2d 706, 709 (Ind. Ct. App. Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
30 2002) (recognizing, for purposes of divorce action and division of property, marriage of first cousins who married under age 65). But one case from the Indiana Court of Appeals issued in 2002 that essentially seeks to do equity in a particular circumstance does not conclusively establish Indiana common law governing the prospective effect of out-of-state marriages that contravene Indiana public policy. Besides, one fairly recent Indiana intermediate court decisionMasoncannot trump earlier decisions of the Indiana Supreme Court regarding the circumstances in which Indiana will recognize out-of-state marriages. The fundamental issue, moreover, is not about the particulars of Indiana marriage-recognition precedents, but about whether Indianas statutory refusal to recognize out-of-state same-sex marriages, as a means of carrying out state public policy, is consistent with the American constitutional tradition. Ample case law from around the country, only a small fraction of which is cited above, demonstrates that it is. Indiana does not suffer some special disability in this regard simply because the out-of-state recognition issue has not been litigated enough to provide a robust body of Indiana decisions. The Constitution does not mean one thing in other states but another in Indiana when it comes to out-of-state recognition of marriages that contravene state public policy. See, e.g., King v. Mullins, 171 U.S. 404, 422 (1898) (The due process of law enjoined by the fourteenth amendment must mean the same thing in all the states.); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 231-32 (1995) (opinion of OConnor, J.) (explaining that the Constitution imposes upon federal, state, and local governmental actors the same Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
31 obligation to respect the personal right to equal protection of the laws). 2. Indianas refusal to recognize the Quasney-Sandler marriage does not contravene the Equal Protection Clause
The district court concluded that Indiana likely violates the Quasney-Sandler couples equal protection rights because out-of-state opposite-sex marriages are generally afforded recognition but out-of-state same-sex marriages are not. Short App. 9. First, however, it is not clear Quasney and Sandler have standing to assert this claim. Quasney and Sandler were married in Massachusetts, but were not at the time residents of Massachusetts; they were residents of Indiana. App. 9. Knowing that they could not be married in Indiana, they decided to get married elsewhere, which runs afoul of Indiana Code 31-11-8-6, quoted above. This statute is neutral with respect to whether the marriage is same-sex or opposite-sex, so to the extent they married in another State to evade Indianas marriage laws, Quasney and Sandler are being treated exactly the same as would be a similarly situated opposite-sex couple. Steve Sanders, The Constitutional Right to (Keep Your) Same-Sex Marriage, 110 Mich. L. Rev. 1421, 1433-34 (2012) ([E]vasive marriages are essentially about the right to marry in the first instance. Therefore, [w]hen an Indiana couple flies to Boston for the weekend to get married, they . . . have no reasonable expectation from the outset that Indiana will honor their marriage.). Plaintiffs do not purport to challenge Section 31-11-8-6. Regardless, for the reasons described in Part II.D.1., infra, the proper level of scrutiny here is rational basis, and to the extent out-of-state opposite-sex marriages Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
32 are generally treated as valid under Indiana law but same-sex marriages are not, that differential treatment is fully justifiable. Generally speaking, opposite-sex couples whose marriages are recognized here could get married in Indiana anyway, but same-sex couples could not. While Indiana could refuse recognition to all opposite-sex marriages from other States, doing so would be pointless given that the vast majority out-of-state opposite-sex couples who move here could easily obtain Indiana licenses and have their marriages solemnized. Furthermore, laws pertaining to opposite-sex marriage do not differ significantly from one State to the next, and the population of opposite-sex couples who (1) wish to marry; (2) would not be authorized to marry in Indiana; (3) live in (or find) a State authorizing them to marry, and (4) return or relocate to Indiana, is self-evidently quite small. Government no longer encounters many first cousins, minor teenagers, or mentally disabled individuals seeking marriage. Accordingly, even if Indianas general recognition of out-of-state opposite-sex marriages results in occasional retrospective recognition of a marriage that contravenes Indianas marriage restrictions (such as in Mason), such a possibility does not present an existential threat to vindication of Indiana marriage policy. In contrast, the population of same-sex couples married in other States who will return or relocate to Indiana is presumably quite large, and accepting those marriages would permit wholesale evasion of Indianas traditional marriage definition and fatally undercut vindication of state marriage policy. Same-sex couples living here could easily be married in Illinois (or one of the sixteen other Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
33 states and District of Columbia that provide same-sex marriage), return to Indiana and demand prospective recognition, thereby rendering Indianas own definition of marriage meaningless. So in a very visible and undeniable way, recognizing out-of- state same-sex marriages would be tantamount to providing for same-sex marriage. What is more, the decision by some States to recognize same-sex marriages marks a significant departure not only from Indiana policy but also from the fundamental understanding of the purpose of marriage embodied by our States laws. For Indiana, marriage is a regulatory scheme designed to encourage responsible procreation so as to ameliorate the consequences of unplanned pregnancies. See Morrison v. Sadler, 821 N.E.2d 15, 30 (Ind. Ct. App. 2005). For States recognizing same-sex marriages, the purpose of marriage is obviously something elsesomething that cannot be reconciled with Indianas marriage philosophy. Notably, the same is not true with respect to other variations in state marriage laws, which may reflect marginal differences about the proper age of majority or the proper distance of consanguinity, but which do not call into question the fundamental purpose of the entire enterprise. Indiana has a legitimate indeed, compellinginterest in maintaining the integrity of its fundamental rationale for civil marriage rather than letting it be redefined by other States. *** Fundamentally, the constitutional validity of Indianas decision not to recognize out-of-state same-sex marriages turns on the constitutional validity of its traditional marriage definition. If Indiana can constitutionally adhere to that Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
34 definition and thereby refuse to provide for same-sex marriages, it can also refuse to recognize same-sex marriages from other States. D. Indianas traditional marriage definition is constitutional As established above, there is no fundamental right to same-sex marriage and no fundamental right to interstate marriage recognition. Moreover, Indianas traditional marriage definition does not draw classifications based on any suspect or quasi-suspect classes. Accordingly, both for purposes of due process analysis and equal protection analysis, that definition is valid as long as it is rationally related to a legitimate government purpose. Quite plainly, it is related to the compelling state government need to encourage potentially procreative couples to stay together for the sake of raising children that may result from their sexual intercourse. This interest does not apply to same-sex couples, so the State need not extend marriage regulation to such couples. 1. Limiting marriage regulation to the union of a man and a woman does not implicate a suspect (or quasi-suspect) class
The traditional definition of marriage existed at the very origin of the institution and predates by millennia the current political controversy over same- sex marriage. It neither targets, nor disparately impacts, either sex; nor does it classify based on sexual orientation or parentage. Accordingly, there is no basis for subjecting traditional marriage definitions to heightened scrutiny.
35 a. Traditional marriage does not discriminate based on sex
The traditional definition of marriage draws no distinction based on sex. As the court observed in Sevcik, 911 F. Supp. 2d at 1005, laws protecting traditional marriage are not directed toward persons of any particular gender, nor do they affect people of any particular gender disproportionately such that a gender-based animus can reasonably be perceived. See also, e.g., Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1252, 1286 (N.D. Okla. 2014); Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 1098-99 (D. Haw. 2012) (listing cases); Richard Posner, Should There Be Same-Sex Marriage? And If So, Who Should Decide?, 95 Mich. L. Rev. 1578, 1582 (1997) (There is no legal barrier to homosexuals marrying persons of the opposite sex; in this respect there is already perfect formal equality between homosexuals and heterosexuals.). 4
Accordingly, there is no parallel to Loving v. Virginia, 388 U.S. 1 (1967), in this regard because race and sex are not constitutionally fungible concepts. See Hernandez v. Robles, 805 N.Y.S.2d 354, 371 (N.Y. App. Div. 2005) (Catterson, J., concurring) (To elevate the issue of same sex unions to that of discrimination on the basis of race does little service to the legacy of the civil rights movement, and ignores the history of race relations in this country.). The racially discriminatory classification in Loving was designed to maintain White Supremacy to the clear favor of one racial class. See Loving, 388 U.S. at 11. A Loving analogy involving sex
4 Judge Posners observation is supported by the record in this case, which demonstrates that Indianas traditional marriage laws permit all Hoosiers to marry, including Plaintiffs Bonnie Everly, Linda Judkins, and Dawn Carver. See Doc. Nos. 36-3 at 6, 36-4 at 5, and 36-6 at 6. Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
36 discrimination would, for example, ban only lesbians from marrying women, but not gay men from marrying other men. That is plainly not the case here, where men and women are equally affected by Indianas traditional marriage definition. b. Traditional marriage does not discriminate based on sexual orientation
Furthermore, traditional marriage laws in no way target homosexuals as such. With traditional marriage, the distinction is not by its own terms drawn according to sexual orientation. Homosexual persons may marry . . . but like heterosexual persons, they may not marry members of the same sex. Sevcik, 911 F. Supp. 2d at 1004. The prior opposite-sex marriages of Plaintiffs Everly, Judkins, and Carver are instructive in this regard. See Doc. Nos. 36-3 at 6, 36-4 at 5, and 36-6 at 6. They demonstrate that Indianas marriage laws do not negatively impact all homosexuals, some of whom marry members of the opposite sex and some of whom do not wish to marry at all. Nor do Indianas marriage laws negatively affect only homosexuals, as Indiana law also burdens those interested in other non-traditional marriages. If marriage law must be scrutinized for impact on everyones ability to marry based on their sexual preferences, such a rule would presumably set the stage for claims for plural marriages and marriages within prohibited lines of consanguinity. While traditional marriage laws impact heterosexuals and homosexuals differently, they do not create classifications based on sexuality, particularly considering the benign history of traditional marriage laws generally. See, e.g., Washington v. Davis, 426 U.S. 229, 242 (1976) (holding that disparate impact on a Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
37 suspect class is insufficient to justify strict scrutiny absent evidence of discriminatory purpose). When a facially neutral statute is challenged on equal protection grounds, the plaintiff must show that a state legislatur[e] . . . selected or reaffirmed a particular course of action at least in part because of, not merely in spite of, its adverse effects [on] an identifiable group. Pers. Admr of Mass. v. Feeney, 442 U.S. 256, 279 (1979) (emphasis added) (internal quotation marks omitted). Here, deducing any such discriminatory intent (unaccompanied by any actual statutory classification) is both unsupported and highly anachronistic, as Indiana has never licensed or recognized same-sex marriages. Modern-day accusations of homosexual animus quite plainly have no historical purchase. There is no plausible argument that the traditional definition of marriage was invented as a way to discriminate against homosexuals. Indeed, in Lawrence, the Supreme Court examined only the past fifty years for the history of laws directed at homosexuals because there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter. Lawrence, 539 U.S. 558, 568 (2003). Implicit in this statement is an acknowledgement that a traditional marriage definition is not a law[] directed at homosexual conduct as a distinct matter. Again, there is no appropriate comparison with Loving. Unlike traditional marriage laws, antimiscegenation laws contravened common law and marriage tradition in Western society. The entire phenomenon of banning interracial marriages originated in the American colonies: [T]here was no ban on Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
38 miscegenation at common law or by statute in England at the time of the establishment of the American Colonies. Harvey M. Applebaum, Miscegenation Statutes: A Constitutional and Social Problem, 53 Geo. L.J. 49, 49-50 (1964). Loving, in short, invalidated efforts to thwart the traditional parameters of marriage (which took no account of race) based on racial animus. It involved relationships that were plainly within the historical understanding and purposes of marriage. c. Homosexuals do not constitute a suspect class Regardless, the Supreme Court has never held that homosexuality constitutes a suspect class. And the law in this circuit, as well as most others, is that homosexual persons do not constitute a suspect class. See Schroeder v. Hamilton Sch. Dist., 282 F.3d 946, 953-54 (7th Cir. 2002) ([H]omosexuals are not entitled to any heightened protection under the Constitution.); see also Cook v. Gates, 528 F.3d 42, 61 (1st Cir. 2008); Veney v. Wyche, 293 F.3d 726, 731-32 (4th Cir. 2002); Baker v. Wade, 769 F.2d 289, 292 (5th Cir. 1985) (en banc); Equal. Found. of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289, 294 (6th Cir. 1997); Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 866-67 (8th Cir. 2006); Price-Cornelison v. Brooks, 524 F.3d 1103, 1113-14 & n.9 (10th Cir. 2008); Lofton v. Secy of the Dept of Children & Family Servs., 358 F.3d 804, 818 (11th Cir. 2004); Steffan v. Perry, 41 F.3d 677, 684 n.3 (D.C. Cir. 1994) (en banc); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989). But see SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471, 481 (9th Cir. 2014) (applying heightened Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
39 scrutiny to juror challenges based on sexual orientation; subject to a sua sponte en banc call). Neither Windsor, nor Romer, nor Lawrence supports heightened scrutiny for legislation governing marriage. Romer expressly applied rational basis scrutiny, while Lawrence and Windsor implied the same. Romer v. Evans, 517 U.S. 620, 631- 32 (1996); Lawrence, 539 U.S. at 578; Windsor, 133 S. Ct. at 2696. In Windsor the Court invalidated Section 3 of DOMA because no legitimate purposea hallmark of rational basis reviewjustified the law. Id. at 2696. Suspect class status is reserved for groups that are politically powerless in the sense that they have no ability to attract the attention of the lawmakers. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 445 (1985). Just this winter Indianas lawmakers, having passed once already a resolution to enshrine the traditional definition of marriage in the Indiana Constitution, and nearing a vote to put the measure to statewide referendum in November 2014, effectively started the process over and killed the measure for this year. Tony Cook & Barb Berggoetz, Same-Sex Marriage Ban Wont be on November Ballot, The Indianapolis Star (Feb. 14, 2014), available at http://www.indystar.com/story/news/politics/2014/02/13/hjr-3- last-minute-maneuver-could-spare-2nd-sentence-/5455299/. This is far from the only political victory advocates for homosexual rights have scored in recent years; it is only the most dramatic close to home. See Morgan Little, Gay Marriage Movement Wins Significant Victories in 2013, LA Times (Dec. 9, 2013), available at http://www.latimes.com/nation/nationnow/la-pn-gay-marriage- Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
40 movement-gains-2013-20131206,0,1888807.story#axzz2zdVzLoIA (summarizing legislative and judicial victories of 2013 and stating that the gay rights movement as a whole is only becoming more popular nationwide, leading many to speculate that its the fastest moving civil rights movement in U.S. history.) National success persuading voters and lawmakers to provide for same-sex marriagethe very issue over which plaintiffs claim protected statusconfirms the sort of political clout that prevents recognition of homosexuals as a suspect class. Cf. Frank Bruni, The New Gay Orthodoxy, N.Y. Times, Apr. 5, 2014, available at http://www.nytimes.com/2014/04/06/opinion/sunday/bruni-the-new-gay-orthodoxy. html (claiming that the debate is essentially over, in the sense that the trajectory is immutable and the conclusion foregone[:] The legalization of same-sex marriage from north to south and coast to coast is merely a matter of time, probably not much of it at that). Even as far back as 1997 it was apparent that same-sex marriage rights were sought not by the disenfranchised but by an educated, articulate, and increasingly politically effective minority that is seeking to bypass the normal political process . . . . Richard Posner, Should There Be Same-Sex Marriage? And If So, Who Should Decide?, 95 Mich. L. Rev. 1578, 1584 (1997). Accordingly, the label suspect class or even quasi-suspect class is a poor fit in this circumstance. See Romer, 517 U.S. at 640 n.1 (Scalia, J., dissenting) (pointing out that the Court implicitly rejected [plaintiffs] argument that homosexuals constitute a suspect or quasi-suspect class). Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
41 2. Traditional marriage satisfies constitutional review
Because no fundamental rights or suspect classes are implicated, the proper test under the federal due process and equal protection clauses is rational basis review. Courts must examine the issue from the States perspective, not the challengers perspective. In particular, this means that the State may justify limits on government benefits and burdens by reference to whether including additional groups would accomplish the governments underlying objectives. Johnson v. Robison, 415 U.S. 361, 383 (1974) (When . . . the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not, we cannot say that the statutes classification of beneficiaries and nonbeneficiaries is invidiously discriminatory.). This framework accords with the longstanding principle that [t]he Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same, Tigner v. Texas, 310 U.S. 141, 147 (1940), and, therefore, where a group possesses distinguishing characteristics relevant to interests the State has the authority to implement, a States decision to act on the basis of those differences does not give rise to a constitutional violation. Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 366-67 (2001) (internal quotations and citation omitted). Accordingly, the proper constitutional question has nothing to do with justifications for excluding access to marriage and its benefitsan inquiry that inherently presupposes the existence of a right to such access and thereby Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
42 amounts to a rejection of rational-basis review. Rather, the relevant question is whether an opposite-sex definition of marriage furthers legitimate interests that would not be furthered, or furthered to the same degree, by allowing same-sex couples to marry. Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 1107 (D. Haw. 2012); Andersen v. King Cnty., 138 P.3d 963, 984 (Wash. 2006) (en banc); Morrison v. Sadler, 821 N.E.2d 15, 23 (Ind. Ct. App. 2005); Standhardt v. Superior Court ex rel. Cnty. of Maricopa, 77 P.3d 451, 463 (Ariz. Ct. App. 2003). The State has no greater burden to justify its decision not to license, recognize, or regulate same-sex marriages than it has to justify refusing to regulate any group. It need only articulate reasons to confer benefits on opposite-sex couples that do not apply to same-sex couples. The exclusive capacity and tendency of heterosexual intercourse to produce children, and the States need to ensure that those children are cared for, provide those reasons. a. States recognize opposite-sex marriages to encourage responsible procreation, and this rationale does not apply to same-sex couples
Civil marriage recognition exists for important reasons having nothing to do with same-sex couples. It arises from the need to protect the only procreative sexual relationship that exists and to make it more likely that unintended children, among the weakest members of society, will be cared for. See Morrison, 821 N.E.2d at 15, 29 (marriage exists to encourage responsible procreation by opposite-sex couples); id. at 25 (The institution of marriage not only encourages opposite-sex couples to form a relatively stable environment for the natural procreation of Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
43 children in the first place, but it also encourages them to stay together and raise a child or children together if there is a change in plans.). This analysis is dominant in our legal system and should continue to carry the day. 5
Traditional marriage protects a norm where sexual activity that can beget children should occur in a long-term, cohabitive relationship. See, e.g., Hernandez v. Robles, 855 N.E.2d 1, 7 (N.Y. 2006) (The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father.). It provides the opportunity for children born within it to have a biological relationship to those having original legal responsibility for their well- being, and accordingly is the institution that provides the greatest likelihood that both biological parents will nurture and raise the children they beget. Unlike opposite-sex couples, the sexual activity of same-sex couples implies no unintentional pregnancies. Whether through surrogacy or reproductive technology, same-sex couples can become biological parents only by deliberately choosing to do so, requiring a serious investment of time, attention, and resources. Id. at 24. Consequently, the State does not necessarily have the same need to
5 See Citizens for Equal Protection v. Bruning, 455 F.3d 859, 867 (8th Cir. 2006); Lofton v. Secy of the Dept of Children and Family Servs., 358 F.3d 804, 818-19 (11th Cir. 2004); Sevcik v. Sandoval, 911 F. Supp. 2d 996, 1015-16 (D. Nev. 2012); Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 1112-13 (D. Haw. 2012); Smelt v. County of Orange, 374 F. Supp. 2d 861, 880 (C.D. Cal. 2005), affd in part, vacated in part, 477 F.3d 673 (9th Cir. 2006); Wilson v. Ake, 354 F. Supp. 2d 1298, 1309 (M.D. Fla. 2005); In re Kandu, 315 B.R. 123, 147-48 (Bankr. W.D. Wash. 2004); Adams v. Howerton, 486 F. Supp. 1119, 1124 (C.D. Cal. 1980), affd 673 F.2d 1036 (9th Cir. 1982); In re Marriage of J.B. & H.B., 326 S.W.3d 654, 677-78 (Tex. App. 2010); Conaway v. Deane, 932 A.2d 571, 619-21, 630-31 (Md. 2007); Hernandez v. Robles, 855 N.E.2d 1, 7 (N.Y. 2006); Andersen v. King County, 138 P.3d 963, 982-83 (Wash. 2006) (en banc); Standhardt v. Superior Court, 77 P.3d 451, 463-65 (Ariz. Ct. App. 2003); Dean v. District of Columbia, 653 A.2d 307, 337 (D.C. 1995); Singer v. Hara, 522 P.2d 1187, 1195 (Wash. Ct. App. 1974); Baker v. Nelson, 191 N.W.2d 185, 186 (Minn. 1971). Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
44 provide such parents with the incentives and regulatory restraints of marriage. Id. at 25; see also In re Marriage of J.B. & H.B., 326 S.W.3d 654, 677 (Tex. Ct. App. 2010) (Because only relationships between opposite-sex couples can naturally produce children, it is reasonable for the state to afford unique legal recognition to that particular social unit in the form of opposite-sex marriage.). The fact that non-procreating opposite-sex couples may marry does not undermine marriage as the optimal procreative context. Opposite-sex couples without children who are married model the optimal, socially expected behavior for other opposite-sex couples whose sexual intercourse may well produce children. See Morrison, 821 N.E.2d at 27 (There was a rational basis for the legislature to draw the line between opposite-sex couples, who as a generic group are biologically capable of reproducing, and same-sex couples, who are not. This is true, regardless of whether there are some opposite-sex couples that wish to marry but one or both partners are physically incapable of reproducing.); see also Singer v. Hara, 522 P.2d 1187, 1195 (Wash. Ct. App. 1974) (confirming marriage as a protected legal institution primarily because of societal values associated with the propagation of the human race[] even though married couples are not required to become parents and even though some couples are incapable of becoming parents and even though not all couples who produce children are married). Moreover, inquiring of every applicant for a marriage license whether they can or intend to procreate would impose serious, constitutionally questionable intrusions on individual privacy. The State is not required to go to such extremes Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
45 simply to prove that the regulatory purpose of marriage is to promote procreation and child rearing in the traditional family context. It suffices to observe that only members of the opposite sex have even a chance at procreating together, so it is fair to limit marriage regulation to opposite-sex unions as an initial matter, regardless whether there are further regulations of marriage. The State may prefer childrearing by biological parents, whom our society . . . [has] always presumed to be the preferred and primary custodians of their minor children. Reno v. Flores, 507 U.S. 292, 310 (1993). But that does not mean it must foreclose all other parenting scenarios by outlawing adoptions or otherwise preventing parents from raising children to whom they are not biologically related. The States interest in ensuring that children are properly cared for may take many forms, the fundamental one being traditional marriage regulation. And the mere ability of same-sex couples to become parents does not put such couples on the same footing as opposite-sex couples, whose general ability to procreate, especially unintentionally, legitimately gives rise to state policies encouraging the legal union of such sexual partners. Morrison, 821 N.E.2d at 25 ([T]he legislative classification of extending marriage benefits to opposite-sex couples but not same-sex couples is reasonably related to a clearly identifiable, inherent characteristic that distinguishes the two classes: the ability or inability to procreate by natural means.). Parental rights are an important aspect of traditional marriage, but it does not follow that marriage rights go wherever parental rights lead. The purpose of Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
46 traditional marriage as a regulatory scheme is not to encourage just any two people who could be good parents to assume parental responsibility for children. It is instead to encourage the two biological parents to care for their children in tandem. Neither same-sex couples nor any other inherently non-procreative grouping of individuals fits that bill. b. Many courts have rejected the theory that traditional marriage is about homosexual animus
Plaintiffs have posited that traditional marriage regulation is somehow about harming homosexuals and promoting gender stereotypes. Doc. No. 36 at 12, 15-16. They complain about the stigma that States create when they regulate opposite- sex marriages but not same-sex marriages. Id. at 23-24. But as Justice OConnor wrote in her concurrence in Lawrence, legitimate state interests, such as preserving the traditional institution of marriage, exist to promote the institution of marriage beyond mere moral disapproval of an excluded group. Lawrence v. Texas, 539 U.S. 558, 585 (2003) (OConnor, J., concurring). Traditional marriage regulation is not about sending a message, App. 14, concerning homosexuality or sexual roles. It is about biology, about regulating sexual relationships that create children that must be cared for. The plurality in Hernandez, 855 N.E.2d at 8, observed that [u]ntil a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. Id. See also Standhardt, 77 P.3d at 465 (Arizonas Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
47 prohibition of same-sex marriages furthers a proper legislative end and was not enacted simply to make same-sex couples unequal to everyone else.); In re Marriage of J.B. & H.B., 326 S.W.3d at 680 (rejecting argument that Texas laws limiting marriage and divorce to opposite-sex couples are explicable only by class- based animus). Indeed, all courts upholding traditional marriage definitions at least tacitly reject the theory that homosexual animus is at work. 3. No other limiting principle for marriage is apparent
Neither Plaintiffs nor judicial decisions invalidating traditional marriage definitions have offered meaningful alternative rationales or definitions. At the hearing on the motions for preliminary injunction and summary judgment, the district court directly asked counsel for Plaintiffs what alternative theory of marriage she would propose. The response was telling. Rather than offer a reason why the government would recognize and regulate marriage if not for the sake of encouraging biological parents to remain together for children produced of their sexual union, counsel stated as follows: [W]hile all of us who are married might put it slightly differently, we might have different examples to use to show what marriage means to us and why it is so important to us, I think that theres something timeless and universal about our experience in choosing to marry that one unique and irreplaceable person who completes us. App. 90. In other words, counsel offered reasons why individuals personally enter into marriages, but no reason why the State licenses, recognizes, and regulates sexual relationships as marriages. Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
48 Courts have done no better. The court in Bostic v. Rainey, 970 F. Supp. 2d 456 (E.D. Va. 2014), for example, declared that any public commitment to form an exclusive relationship and create a family with a partner with whom the person shares an intimate and sustaining emotional bond is entitled to marriage recognition. Id. at 472. This proposal for redefinition, however, in no way explains why government has any interest in recognizing marriage or in regulating sexual relationships. The district court in Bostic spoke of an intimate and sustaining emotional bond, but never said why that matters to the State. Such an omission is glaring and significant. If the desire for social recognition and validation of self- defined intimate relationships are the bases for civil marriage, no adult relationships can be excluded a priori from making claims upon the government for recognition and, oddly, regulation. A central argument for recognizing same-sex marriages arises from a fashionable insistence that the modern family is not what it used to be. Indeed, there seems to be no end to the variety of de facto family permutations that can arise. By virtue of statutory amendment and judicial fiat, some States bestow parental rights and responsibilities even on entire groups of co-parents. In recent years, Delaware and the District of Columbia have passed laws that recognize third de facto parents who have parental rights and responsibilities. D.C. Code 16- 831.01 et seq.; 13 Del. Code 8-201. Courts in several other States have also recognized three parents. See In re Parentage of L.B., 122 P.3d 161, 176-77 (Wash. 2005) (en banc) (recognizing third de facto parent); C.E.W. v. D.E.W., 845 A.2d Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
49 1146 (Me. 2004) (same); V.C. v. M.J.B., 748 A.2d 539 (N.J. 2000) (recognizing third psychological parent); LaChappelle v. Mitten, 607 N.W.2d 151 (Minn. Ct. App. 2000) (recognizing third-parent rights); see also In re M.C., 195 Cal. App. 4th 197, 214, 223 (2011). But none of these social changeswhether one views them as good, bad, or inconsequentialjustifies regulation of same-sex couples as marriages. Surely no one argues that the liberty of adults to engage freely in consensual sex means States must also acknowledge and regulate each individuals sexuality; indeed, Lawrence v. Texas, 539 U.S. 558, 578 (2003), holds to the contrary. Nor, then, does the governments interest in the sexuality of its citizens suddenly spring forth at the origination of particular romantic or cohabitational relationships as such. There has to be something more to justify government regulation. See Willystine Goodsell, A History of the Family as a Social and Educational Institution 7 (The Macmillan Company 1915) (It seems clear enough that the sexual instinct of itself could not have brought about permanent relationships between male and female.). For qualified opposite-sex couples, the something more that justifies regulation as marriage is the natural capacity of their sexual relationships to produce children unintentionally. This natural capacity gives rise to the states interest in encouraging responsible procreation, i.e., where the sexual partners live in a long-term, committed relationship for the sake of any children they may produce, even unintentionally. See id. at 7-8 (The source of marriage . . . must probably be looked for in the utter helplessness of the newborn offspring . . . .). Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
50 The ability of same-sex couples to raise children together is not the same thing. The primary rationale for traditional marriage regulation is responsible procreation, not responsible parenting more generally. Hence, what is missing with same-sex couples is societys interest in encouraging couples to consider and plan for the children that inevitably result from impulsive decisions to act on sexual desires. The sexual activity of same-sex couples implies no consequences similar to that of opposite-sex couples that demand a regulatory response. It is no response for same-sex couples to say that the State also has an interest in encouraging those who acquire parental rights without procreating (together) to maintain long-term, committed relationships for the sake of their children. Such an interest is not the same as the interest that justifies marriage as a special regulation for sexual partners as such. Traditional marriage reflects the ideal of family life, recognizing the love between a mother and a father and the ability of this relationship to bear children. The same is true for opposite-sex couples that do not procreate because they model the optimal ordering of family life. Responsible parenting is not a theory supporting marriage for same-sex couples because it cannot answer two critical questions: Why two people? Why a sexual relationship? In other words, if marriage rights must follow parental rights, and if States cannot restrict joint parental rights to opposite-sex couples as an optimal setting for childrearing, there would be no basis for precluding joint parentageand, hence, marriageby any social grouping, regardless of the existence of a sexual Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
51 relationship. Sisters, brothers, platonic friends, groups of three or moreall would be on equal footing for purposes of the right to parent jointly and, thus, the right to marry. 6
Consequently, responsible parenting is not a justification for same-sex-couple marriage, as distinguished from regulation of any other human relationships. It is instead a rationale for eliminating marriage as government recognition of a limited set of relationships. Once the natural limits that inhere in the relationship between a man and a woman can no longer sustain the definition of marriage, the conclusion that follows is that any grouping of adults would have an equal claim to marriage. See, e.g., Jonathan Turley, One Big, Happy Polygamous Family, NY Times, July 21, 2011, at A27 ([Polygamists] want to be allowed to create a loving family according to the values of their faith.). Marriage is not a device traditionally used to acknowledge acceptable sexuality, living arrangements, or parenting structures. It is a regulatory means to encourage and preserve something far more compelling and precise: the relationship between a man and a woman in their natural capacity to have children. Marriage attracts and then regulates couples whose sexual conduct may create children in order to ameliorate the burdens society ultimately bears when
6 In this regard it is important to bear in mind that, under this model, it is only the potential for a group of adults to acquire parental rightsnot the actual conferral of parental rights on any particular groupingthat would be the necessary predicate for marriage. In other words, taken to its logical conclusion, Plaintiffs argument for marriage equality would insist that, just as opposite-sex couples are eligible for marriage by reference to their theoretical procreative capacity, so too would other groups be eligible for marriage by reference to their theoretical ability to acquire joint parental rights, regardless whether they actually (or even intend) to do so.
52 unintended children are not properly cared for. Neither same-sex couples nor any other social grouping presents the same need for government involvement, so there is no similar rationale for recognizing and regulating them. CONCLUSION For the foregoing reasons, the Preliminary Injunction should be REVERSED and VACATED.
s/ Robert V. Clutter Robert V. Clutter Kirtley, Taylor, Sims, Chadd & Minnette, P.C. 117 W. Main Street Lebanon, IN 46052 Tel: (765) 483-8549 Fax: (765) 483-9521 bclutter@kirtleytaylorlaw.com Counsel for Penny Bogan
s/ Darren J. Murphy Darren J. Murphy Assistant Hamilton County Attorney 694 Logan St. Noblesville, IN 46060 Tel: (317) 773-4212 Fax: (317) 776-2369 dmurphy@ori.net Counsel for Peggy Beaver Respectfully submitted,
Gregory F. Zoeller Attorney General of Indiana s/ Thomas M. Fisher Thomas M. Fisher Solicitor General Office of the Attorney General IGC South, Fifth Floor 302 W. Washington Street Indianapolis, IN 46204 Tel: (317) 232-6255 Fax: (317) 232-7979 Tom.Fisher@atg.in.gov Counsel for Greg Zoeller and William C. VanNess II, M.D.
s/ Nancy Moore Tiller Nancy Moore Tiller Nancy Moore Tiller & Associates 11035 Broadway, Suite A Crown Point, IN 46307 Tel: (219) 662-2300 Fax: (219) 662-8739 nmt@tillerlegal.com Counsel for Michael A. Brown
I verify that this brief, including footnotes and issues presented, but excluding certificates, contains 13,454 words according to the word-count function of Microsoft Word, the word-processing program used to prepare this brief.
s/ Thomas M. Fisher Thomas M. Fisher Solicitor General Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
54 CERTIFICATE OF SERVICE
I hereby certify that on June 20, 2014, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Seventh Circuit by using the CM/ECF system, which sent notification of such filing to the following:
Barbara J. Baird The Law Office Of Barbara J Baird bjbaird@bjbairdlaw.com
Paul D. Castillo Camilla B. Taylor Christopher R. Clark Lambda Legal Defense & Education Fund, Inc. pcastillo@lambdalegal.org ctaylor@lambdalegal.org cclark@lambdalegal.org
Robert V. Clutter Kirtley, Taylor, Sims, Chadd & Minnette, P.C. bclutter@kirtleytaylorlaw.com
Darren J. Murphy Assistant Hamilton County Attorney dmurphy@ori.net
Jordan Heinz Brent Phillip Ray Kirkland & Ellis LLP jordan.heinz@kirkland.com brent.ray@kirkland.com
Nancy Moore Tiller Nancy Moore Tiller & Associates nmt@tillerlegal.com
Elizabeth A. Knight Porter County Administrative Center eknight@porterco.org
s/ Thomas M. Fisher Thomas M. Fisher Solicitor General
Office of the Indiana Attorney General Indiana Government Center South, Fifth Floor 302 W. Washington Street Indianapolis, IN 46204-2770 Telephone: (317) 232-6255 Facsimile: (317) 232-7979 Tom.Fisher@atg.in.gov Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81
55 REQUIRED SHORT APPENDIX
Pursuant to Circuit Rule 30, Appellants submit the following as their Required Short Appendix. Appellants Short Appendix contains all of the materials required under Circuit Rule 30(a).
By: s/ Thomas M. Fisher Thomas M. Fisher Solicitor General
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,
ENTRY ON PLAINTIFFS MOTION FOR A PRELIMINARY INJUNCTION Case 1:14-cv-00355-RLY-TAB Document 65 Filed 05/08/14 Page 1 of 14 PageID #: 713 SHORT APPENDIX 1 Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81 2
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. Case 1:14-cv-00355-RLY-TAB Document 65 Filed 05/08/14 Page 2 of 14 PageID #: 714 SHORT APPENDIX 2 Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81 3
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 plaintiffs 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 Case 1:14-cv-00355-RLY-TAB Document 65 Filed 05/08/14 Page 3 of 14 PageID #: 715 SHORT APPENDIX 3 Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81 4
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 [movants] 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 Courts 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 defendants challenged behavior, and likely to be redressed by a favorable ruling. Davis v. Fed. Election Commn, 554 U.S. 724, 733 (2008). Defendants argue that the harms alleged by Plaintiffs as arising from Indianas 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. Case 1:14-cv-00355-RLY-TAB Document 65 Filed 05/08/14 Page 4 of 14 PageID #: 716 SHORT APPENDIX 4 Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81 5
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 Indianas 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 Utahs 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. Case 1:14-cv-00355-RLY-TAB Document 65 Filed 05/08/14 Page 5 of 14 PageID #: 717 SHORT APPENDIX 5 Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81 6
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 Indianas statute prohibiting the recognition of same-sex marriages and in fact, voiding such marriages, violates the Fourteenth Amendments Due Process Clause and Equal Protection Clause. 1. Equal Protection Clause Plaintiffs argue that Indianas 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 States 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 Case 1:14-cv-00355-RLY-TAB Document 65 Filed 05/08/14 Page 6 of 14 PageID #: 718 SHORT APPENDIX 6 Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81 7
heterosexual couples who, for whatever reason, are not capable of producing children, to further the states interest in being good male-female role models. In the wake of the Supreme Courts decision in United States v. Windsor, 134 S.Ct. 2675 (2013), district courts from around the country have rejected the idea that a states non-recognition statute bears a rational relation to the states 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.1:12- 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). 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 Courts 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 Case 1:14-cv-00355-RLY-TAB Document 65 Filed 05/08/14 Page 7 of 14 PageID #: 719 SHORT APPENDIX 7 Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81 8
advanced by the State in support of Indianas non-recognition statute do not distinguish this case from the district court cases cited above. The court is not persuaded that, at this stage, Indianas 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 ones 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 ones 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). Case 1:14-cv-00355-RLY-TAB Document 65 Filed 05/08/14 Page 8 of 14 PageID #: 720 SHORT APPENDIX 8 Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81 9
Defendants counter that there is no due process right to have ones 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 ones 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). Indianas 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 States 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 Case 1:14-cv-00355-RLY-TAB Document 65 Filed 05/08/14 Page 9 of 14 PageID #: 721 SHORT APPENDIX 9 Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81 10
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 Intl, Inc. v. Chosum Intl, Inc., 234 F. Supp. 2d 905, 920 (S.D. Ind. 2002) (Though not dispositive, tardiness weighs against a plaintiffs 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 courts 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 Case 1:14-cv-00355-RLY-TAB Document 65 Filed 05/08/14 Page 10 of 14 PageID #: 722 SHORT APPENDIX 10 Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81 11
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. Arthurs 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, Case 1:14-cv-00355-RLY-TAB Document 65 Filed 05/08/14 Page 11 of 14 PageID #: 723 SHORT APPENDIX 11 Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81 12
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 Indianas 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 Constitutions 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 States concern that injunctions of this sort will cause confusion with the administration of Indianas marriage Case 1:14-cv-00355-RLY-TAB Document 65 Filed 05/08/14 Page 12 of 14 PageID #: 724 SHORT APPENDIX 12 Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81 13
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 Indianas 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 Quasneys and Amy Sandlers, 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 Indianas 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 courts 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. Case 1:14-cv-00355-RLY-TAB Document 65 Filed 05/08/14 Page 13 of 14 PageID #: 725 SHORT APPENDIX 13 Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81 14
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 courts 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________________ RICHARD L. YOUNG, CHIEF JUDGE United States District Court Southern District of Indiana
Distributed Electronically to Registered Counsel of Record.
Case 1:14-cv-00355-RLY-TAB Document 65 Filed 05/08/14 Page 14 of 14 PageID #: 726 SHORT APPENDIX 14 Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81 __________________________________ RICHARD L. YOUNG, CHIEF JUDGE United States District Court Southern District of Indiana