1:14-cv-00405 #30

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

MICHELLE BOWLING, SHANNON )
BOWLING and LINDA BRUNER, )
)
Plaintiffs, )
)
vs. ) Case No. 1:14-cv-0405-RLY-TAB
)
MICHAEL PENCE, in his official capacity as )
Governor of the State of Indiana, GREGORY )
ZOELLER, in his official capacity as Attorney )
General for the State of Indiana, )
MICHAEL ALLEY, in his capacity as )
Commissioner of the Indiana Department of )
Revenue; and ANITA SAMUEL, in her capacity )
as Executive Director of the Indiana Department )
of State Personnel, )
)
Defendants. )
______________________________________________________________________________

PLAINTIFFS' RESPONSE IN OPPOSITION TO DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT AND REPLY BRIEF IN SUPPORT OF PLAINTIFFS'
MOTION FOR SUMMARY JUDGMENT
______________________________________________________________________________

Richard A. Mann
Lisa M. Joachim
Todd D. Small
Megan L. Clearwaters
Jennifer R. Mann

Attorneys for Plaintiffs

Case 1:14-cv-00405-RLY-TAB Document 30 Filed 06/26/14 Page 1 of 57 PageID #: 304
TABLE OF CONTENTS

TABLE OF AUTHORITIES.........................................................................................................iii

INTRODUCTION...........................................................................................................................1

MOTION TO STRIKE1

ADDITIONAL MATERIAL FACTS NOT AT ISSUE..1

I. THE GOVERNOR AND ATTORNEY GENERAL ARE PROPER PARTIES................3

A. Indianas Anti-Recognition Statute Is Distinguished From The Statutes
In The Cases Upon Which Defendants Rely...6

B. The Governor Enforces The Indiana Anti-Recognition Statute..7

C. The Attorney General Enforces And Defends The Indiana Anti-Recognition
Statute11

II. THE TAX INJUNCTION ACT DOES NOT BAR PLAINTIFFS ACTION..13

III. DUE TO DOCTRINAL DEVELOPMENTS BAKER V. NELSON IS NO
LONGER CONTROLLING AND DOES NOT BAR PLAINTIFFS
CHALLENGE TO INDIANAS ANTI-RECOGNITION STATUTE.....15

IV. DEFENDANTS ENFORCEMENT OF INDIANAS ANTI-RECOGNITION
STATUTE VIOLATES PLAINTIFFS EQUAL PROTECTION RIGHTS18

A. Indianas Anti-Recognition Statute Classifies Based On Sex And
Sexual Orientation.18

B. Heightened Scrutiny Applies To Classifications Based On Sexual
Orientation19

V. THE FUNDAMENTAL RIGHT TO MARRY ENCOMPASSES THE RIGHT TO
MARRY A PERSON OF ONES CHOICE REGARDLESS OF GENDER
AND THE COURT SHOULD FIND INDIANAS ANTI-RECOGNITION
STATUTE UNCONSTITUTIONAL...26

A. Societal Shifts Recognize The Fundamental Right To Marry Includes The
Right To Marry Regardless Of Race27

i

B. Societal Changes Acknowledge The Equality Between Genders In
Marriage...29

C. Societal Shifts Have Led To Changes In Divorce Laws..31

VI. DEFENDANTS JUSTIFICATIONS FOR ENFORCEMENT OF INDIANAS
ANTI-RECOGNITION STATUTE FAIL TO MEET EVEN RATIONAL
BASIS REVIEW..32

A. Defendants Traditional Marriage Justification Fails Rational Basis..33

B. Defendants Procreation Justification Fails Rational Basis.36

VII. INDIANAS ANTI-RECOGNITION STATUTE DENIES PLAINTIFFS
CONSTITUTIONAL RIGHT OF ACCESS TO COURTS40

CONCLUSION...44

CERTIFICATE OF SERVICE45

ii

TABLE OF AUTHORITIES

Cases

Allied Artists Pictures Corp. v. Rhodes,
473 F.Supp. 560 (S.D. Ohio 1979)....................................................................................... 5, 8

Ameritech Corp. v. McCann,
297 F.3d 582 (7th Cir. 2002) ............................................................................................... 4, 5

Ankenbrandt v. Richards,
504 U.S. 689 (1992) .............................................................................................................. 42

Baker v. Nelson,
191 N.W.2d 185(Minn. 1971) ............................................................................................... 15

Baskin v. Bogan,
1:14-cv-00355-RLY-TAB, Dkt. No. 89 (S.D. Ind. June 25, 2014)...10, 12, 17, 32, 38

Ben-Shalom v. Marsh,
881 F.2d 454 (7th Cir. 1989) ................................................................................................. 23

Bishop v. United States,
962 F.Supp.2d. 1252 (N.D. Okla. 2014) .................................................................... 17, 38, 39

Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet,
512 U.S. 687 (1994) ........................................................................................................ 25, 26

Boddie v. Connecticut,
401 U.S. 371 (1971) .............................................................................................................. 41

Bostic v. Rainey,
2014 WL 561978 (E.D. Va. 2014) ....................................................................... 17, 22, 33, 38

Bourke v. Beshear,
2014 WL 556729 (W.D. Ky. 2014)...8, 17, 35, 36

Bowers v. Hardwick,
478 U.S. 186 (1986) .............................................................................................................. 35

iii

Brown v. Bd. of Educ. of Topeka
347 U.S. 483 (1954) .............................................................................................................. 28

Cece v. Holder,
733 F.3d 662 (7th Cir. 2013) ................................................................................................. 24

City of Cleburne, Tex. v. Cleburne Living Center,
473 U.S. 432 (1985) .......................................................................................22, 23, 24, 25, 26

City of Richmond v. J.A. Croson Co.,
488 U.S. 469 (1989) .............................................................................................................. 25

Conley v. Gibson,
355 U.S. 41 (1957) ................................................................................................................ 42

County of Sacramento v. Lewis,
523 U.S. 833 (1998) .............................................................................................................. 33

Davis v. Fed. Election Comm'n,
554 U.S. 724 (2008) ................................................................................................................3

Dean Foods Co. v. Brancel,
187 F.3d 609 (7th Cir. 1999) ...................................................................................................5

DeBoer v. Snyder,
2014 WL 1100794 (E.D. Mich. 2014) ............................................................................... 8, 17

DeLeon v. Perry,
2014 WL 715741 (W.D. Tex. 2014)....8, 17, 22, 24, 38

Dunn v. Carey,
808 F.2d 555 (7th Cir. 1986) ................................................................................................. 14

Edelman v. Jordan,
415 U.S. 651 (1974) .............................................................................................................. 16

Entertainment Software Ass'n v. Blagojevich,
469 F.3d 641 (7th Cir. 2006) ...................................................................................................5

iv

Escobar v. Holder,
657 F.3d 537 (7th Cir. 2011) ................................................................................................. 24

Ex parte Young,
209 U.S. 123 (1908) ............................................................................................................ 4, 5

Fed. Commc'n Comm'n v. BeachCommc'ns,
508 U.S. 307 (1993) ............................................................................................................. 21

Fed. Nat'l Mortgage Ass'n. v. Lefkowitz,
383 F.Supp. 1294 (S.D.N.Y. 1974) ...................................................................................... 5, 8

Frontiero v. Richardson,
411 U.S. 677 (1973) ........................................................................................................ 23, 31

Geiger v. Kitzhaber,
2014 WL 2054264 (D. Or. 2014) ................................................................................. 8, 17, 39

Griswold v. Connecticut,
381 U.S. 479 (1965) ........................................................................................................ 26, 38

Henneger v. Lomas,
44 N.E. 462 (Ind. 1896).30

Henry v. Himes,
2014 WL 1418395 (S.D. Ohio 2014)...22, 34

Hibbs v. Winn,
542 U.S. 88 (2004) .......................................................................................................... 13, 14

Hicks v. Miranda,
422 U.S. 332 (1975) ............................................................................................................. 16

Hollingsworth v. Perry,
133 S.Ct. 2652 (U.S. 2013).............................................................................................. 16, 17

In re Dairy Mart Convenience Store, Inc.,
411 F.3d 367 (2nd Cir. 2005) ..................................................................................................5

v

In re Marriage of Myers,
387 N.E.2d 1360 (Ind. 1979) ................................................................................................. 31

In re Marriage of Thomas,
794 N.E.2d 500 (Ind. Ct. App. 2003) ..................................................................................... 43

In re Wal-Mart Stores, Inc.,
2009 WL 7823752 (7th Cir. Nov. 12, 2009) ......................................................................... 14

Johnson v. Orr,
551 F.3d 564 (7th Cir. 2008) ........................................................................................... 14, 15

Kitchen v. Herbert,
2014 WL 2868044 (10th Cir. 2014)....6, 10, 17, 26, 27, 38, 40

Kitchen v. Herbert,
961 F.Supp. 2d 1181 (D. Utah 2013) ............................................................... 8, 26, 32, 34, 40

Kotch v. Pilot,
330 U.S. 552 (1947) .............................................................................................................. 21

Larson v. Valente,
456 U.S. 228 (1982) .............................................................................................................. 25

Latta v. Otter,
2014 WL 1909999 (D. Idaho 2014)8, 17, 22, 35, 37, 38, 39

Lawrence v. Texas,
539 U.S. 558 (2003) ............................................................... 16, 20, 21, 22, 23, 24, 26, 33, 35

Leatherman v. Tarrant County,
507 U.S. 163 (1993) .............................................................................................................. 42

Long v. Van de Kamp,
961 F.2d 151 (9th Cir. 1992) ............................................................................................... 6, 7

Loving v. Virginia. ,
388 U.S. 1 (1967) ................................................................................................ 18, 19, 28, 32

vi

Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) ................................................................................................................3

Lyng v. Castillo,
477 U.S. 635 (1986) .............................................................................................................. 22

Mass. Bd. of Ret. v. Murgia,
427 U.S. 307 (1976) .............................................................................................................. 22

Mendez v. Heller,
530 F.2d 457 (2d Cir. 1976) ................................................................................................ 6, 7

Morrison v. Sadler,
821 N.E.2d 15 (Ind. Ct. App. 2005) ........................................................................... 12, 36, 37

Nass v. State ex rel. Unity Team, Local,
9212, 718 N.E.2d 757 (Ind. Ct. App. 1999) .............................................................................8

Nyquist v. Mauclet,
432 U.S. 1 (1977) .................................................................................................................. 22

Obergefell v. Wymyslo,
962 F.Supp.2d 968 (S.D. Ohio 2013) ..............................................................17, 22, 23, 24, 38

Okpalobi v. Foster,
244 F.3d 405 (5th Cir. 2001) ............................................................................................... 6, 7

Orr v. Orr,
440 U.S. 268 (1979) .............................................................................................................. 31

Palmer v. Thompson,
403 U.S. 217 (1971) .............................................................................................................. 29

Palmore v. Sidoti,
466 U.S. 429 (1984) .............................................................................................................. 29

Pennington v. Steward,
10 N.E.2d 619 (Ind. 1937) ..................................................................................................... 30

vii

Reno v. Flores,
507 U.S. 292 (1993) .............................................................................................................. 32

Romer v. Evans,
517 U.S. 620 (1996) ........................................................................................................ 16, 20

Schroeder v. Hamilton Sch. Dist.,
282 F.3d 946 (7th Cir. 2002) ................................................................................................. 21

Sclamberg v. Sclamberg,
41 N.E.2d 801 (Ind. 1942) ................................................................................................... 43

Shell Oil Co. v. Noel,
608 F.2d 208 (1st Cir. 1979) ................................................................................................ 6, 7

Sherman v. Cmty. Consol. Sch. Dist. 21 of Wheeling Twp.,
980 F.2d 437 (7th Cir. 1992) ............................................................................................... 6, 7

Simon v. E. Ky. Welfare Rights Org.,
426 U.S. 26 (1976) ..................................................................................................................3

SmithKline Beecham Corp v. Abbott Laboratories,
740 F.3d 471 (9th Cir. 2014) ................................................................................................. 20

Snyder v. Smith,
2014 WL 1153142 (S.D. Ind. 2014)....................................................................................... 42

Socialists Workers Party v. Rockefeller,
314 F.Supp. 984(S.D.N.Y. 1970) summarily aff'd, 400 U.S. 806 (1970) .............................. 5, 8

State v. Gibson,
1871 WL 5021 (Ind. 1871) .................................................................................................... 27

Tanco v. Haslam,
2014 WL 997525 (M.D. Tenn. 2014) ................................................................................ 8, 17

Troue v. Marker,
252 N.E.2d 800 (Ind. 1969) ................................................................................................... 30

viii

Tucker v. State,
35 N.E.2d 270 (Ind. 1941) .......................................................................................................8

Turner v. Safley,
482 U.S. 78 (1987) .......................................................................................................... 38, 39

U.S. v. Windsor,
133 S.Ct. 2675 (2013) .............................................................................. 16, 17, 20, 21, 22, 43

Verizon Md., Inc. v. Public Serv. Comm'n of Md.,
535 U.S. 635 (2002) ................................................................................................................5

Washington v. Davis,
426 U.S. 229 (1976) .............................................................................................................. 19

Whitewood v. Wolf,
2014 WL 2058105 (M.D. Penn. 2014)......17, 22, 23

Williams v. North Carolina,
325 U.S. 226 (1945) .............................................................................................................. 42

Williamson v. Lee Optical,
348 U.S. 483 (1955) .............................................................................................................. 21

Windsor v. United States,
699 F.3d 169 ............................................................................................................. 17, 22, 24

Wolf v. Walker,
2014 WL 2558444 (W.D. Wis. 2014)..8, 17, 21, 22, 24, 25, 33, 34, 35, 36, 39

Zabolocki v. Redhail,
434 U.S. 374 (1978) .................................................................................................. 28, 29, 32
Statutes

28 U.S.C. 1341 ....................................................................................................................... 13

Ind. Code 10-13-3-1 ............................................................................................................... 25

Ind. Code 4-15-2.2-14 .......................................................................................................... 6, 9

ix

Ind. Code 4-3-6-3 .....................................................................................................................8

Ind. Code 4-6-1-6 ................................................................................................................... 11

Ind. Code 6-8.1-2-2...6, 9

Ind. Code 31-10-2-1 ......................................................................................................... 36, 37

Ind. Code 31-11-1-1 ........................................................................................................ passim

Ind. Code 31-11-11-1..12

Ind. Code 31-11-11-3..12

Ind. Code 31-11-11-7 ............................................................................................................. 12

Ind. Code 31-11-8-6 ............................................................................................................... 18

Ind. Code 31-15-7-5 ............................................................................................................... 43

Iowa Code 598.5 .................................................................................................................... 43

Other Authorities

U.S. Const. amend. XIV 1..........................................................................................................42

Ind. Const. Article I, 12 .......................................................................................................... 42

Ind. Const. Art. 5 1 ...................................................................................................................7

Ind. Const. Art. 5 16 .................................................................................................................7

Fed. R. Civ. P. 8 .................................................................................................................... 8, 41

Fed. R. Civ. P. 56 ........................................................................................................................1

150 Cong. Rec. H6580, 6587 (daily ed. July 22, 2004) (statement of Rep. Pence)..11

2004 Ind. Op. Atty Gen. No. 3 (Mar. 26, 2004)...........................................................................12

x

2004 Ind. Op. Atty Gen. No. 4 (Apr. 29, 2004).......12

H.J. Res. 3, 118th Gen. Assem., Second Reg. Sess. (Ind. 2014)...................................................25

Brief of the State of Indiana et al as Amici Curiae in Support of Reversal,
Kitchen v. Herbert, Bishop v. Smith, Barton v. Smith,
Nos. 13-4178, 14-5003, 14-5006 (10th Cir. Feb. 2, 2014)............................................................13

George Chauncey, Why Marriage? (Basic Books 2004).......30

http://www.freedomtomarry.org/pages/where-state-laws-stand (last visited June 24, 2014)........25

Indiana Department of Personnel website, http://www.in.gov/spd/2284.htm 9

Indiana Department of Personnel Handbook,
http://www.in.gov/spd/files/employee_handbook.pdf ................................................................... 9

Indiana Department of Revenue website, http://www.in.gov/dor/4895.htm ..................2, 9, 10, 14

More Than Just a Couple: 614 Reasons Why Marriage Equality
Matters in Indiana: A Compendium of the Rights and Responsibilities
of Civil Marriage in the Indiana Code available at
http://www.indianaequalityaction.org/wordpress/wp-content/uploads/2012/11/More-Than-Just-a-
Couple.pdf (last visited June 24, 2014)...6

Office of the Governor Statement on Federal Court Ruling on Indianas Marriage Statute,
http://www.in.gov/activecalendar/EventList.aspx?view=EventDetails&eventidn=176231&infor
mation_id=202906&type=&syndicate=syndicate (June 25, 2014)...10

Stephanie Coontz, Marriage, a History (2005).............................................................................34

Tim Evans, Indiana couples file federal lawsuit to recognize
same-sex marriage, INDIANAPOLIS STAR, Mar. 7, 2014, available at
http://www.indystar.com/story/news/2014/03/07/indiana-couples-file-federal-
lawsuit-to-recognize-same-sex-marriage/6171287/.................................................................11, 12

xi

INTRODUCTION
This Court has jurisdiction over Plaintiffs 1983 cause of action against Defendants and
should hold that Indiana Code 31-11-1-1(b) (hereinafter Indianas Anti-Recognition statute)
is unconstitutional; therefore, Defendants should be enjoined from its enforcement.
MOTION TO STRIKE

Federal Rule of Civil Procedure 56 supplies the framework for filing a motion for
summary judgment. Fed. R. Civ. P. 56. Pursuant to Rule 56(b), a motion for summary judgment
may be filed at any time until 30 days after the close of all discovery or unless a different
time is set by local rule or the court orders otherwise. Fed. R. Civ. P. 56(b) (emphasis added).
The parties agreed that all dispositive motions were to be filed no later than April 21, 2014.
Minute Entry [dkt. 20 at 1]. Defendants Motion for Summary Judgment was not filed until May
29, 2014, and at no time did Defendants file a request for additional time. Defs. Motion for
Summary Judgment [dkt. 25]. Therefore, Defendants' Motion for Summary Judgment should be
stricken as untimely filed. As a result, the issues raised in the Defendants' Motion for Summary
Judgment are not properly before the Court. Without waiving this objection, Plaintiffs will
address the issues set forth in the Defendants' Motion for Summary Judgment.
ADDITIONAL MATERIAL FACTS NOT AT ISSUE
Michelle, Shannon, and Linda (hereinafter Plaintiffs) suffer tangible, dignitary, and
stigmatic harms as a result of Indianas Anti-Recognition statute. Ex. 5 (Supp. Decl. of
Michelle), 2; Ex. 6 (Supp. Decl. of Shannon), 2; Ex. 7 (Supp. Decl. of Linda), 2. Defendants
enforcement of Indianas Anti-Recognition statute make Michelle and Shannon feel like second-
class citizens. Ex. 5, 2; Ex. 6, 2. Plaintiffs are discriminated against and humiliated by not
1

having their legally solemnized marriages recognized. Ex. 5, 3; Ex. 6, 3; Ex. 7, 3. Plaintiffs
sexual orientation is not a choice. Ex. 5, 4; Ex. 6, 4; Ex. 7, 4. Plaintiffs sexual orientation is
fundamental to their personal identity. Ex. 5, 4; Ex. 6, 4; Ex. 7, 4. Defendants enforcement
of Indianas Anti-Recognition statute forces Plaintiffs to choose between giving up their personal
identities or being discriminated against and humiliated. Ex. 5, 5; Ex. 6, 5; Ex. 7, 5.
Linda filed a Praecipe for Final Hearing in her dissolution on April 2, 2014. Ex. 7, 7.
Marion Superior Court declined to set the matter for Final Hearing and instead set it for a Status
Conference on June 6, 2014. Ex. 7, 8. At the Status Conference both Linda and her wife asked
to proceed to Final Hearing and be granted a dissolution. Ex. 7, 9. Marion Superior Court
denied this request and dismissed the action sua sponte. Ex. 7, 9-10. Linda filed a Motion to
Correct Errors, which was denied. Ex. 7, 11-12. Linda will file, in a timely manner, a Notice
to Appeal with the Indiana Court of Appeals. Ex. 7, 13. The dismissal of Lindas Petition for
Dissolution has added stress to her life. Ex. 7, 14. Linda has been diagnosed with Post-
Traumatic Stress Disorder due to her fear that her wife will cause her physical harm and the
emotional strain of not being able to dissolve her marriage. Ex. 7, 15. Furthermore, Linda
cannot reasonably relocate to another state in order to establish residency to file for a divorce due
to her employment, home, and proximity to family and friends. Ex. 7, 16.
The Director of the Indiana Department of State Personnel and the Commissioner of the
Indiana Department of Revenue are both appointed by the Governor. Ind. Code 4-15-2.2-14(a);
Ind. Code 6-8.1-2-2. The Indiana Department of Revenue (hereinafter DOR) is under the
control of the governor. Ind. Code 6-8.1-2-2. Per the DORs website same-sex spouses who
file federal returns with a married filing status must each complete a sample federal
returnentering information as if single. DOR website http://www.in.gov/dor/4895.htm.
2

The institution of marriage is not static. Ex. 8 (Decl. of Michael Grossberg). Rather,
there is broad agreement among historians of marriage in the United States that the institution
has changed significantly over time to address changing social and ethical needs. Ex. 8, at 3.
There is no evidence that Indianas Anti-Recognition statute furthers the goal of
responsible procreation. Ex. 9 (Supp. Decl. of Brian Powell). Marriage has multiple purposes
that advance the public good, whether or not children are present. Ex. 9.
I. THE GOVERNOR AND ATTORNEY GENERAL ARE PROPER PARTIES
Defendants argue that the Governor and Attorney General are entitled to summary
judgment because "neither the Governor nor the Attorney General has any authority to enforce,
or other role respecting, Indiana Code 31-11-1-1...." Defs. Opp. Br. [dkt. 26 at 17]. In the
same section of their brief, Defendants also argue that "the Eleventh Amendment bars this action
against the Governor and the Attorney General because the State of Indiana, as a sovereign
entity, has not consented to be sued by the Plaintiffs." Defs. Opp. Br. [dkt. 26 at 17].
Defendants acknowledge that their standing and Eleventh Amendment immunity arguments
overlap. Defs. Opp. Br. [dkt. 24 at 17].
Plaintiffs, to have standing, "must present an injury that is concrete, particularized, and
actual or imminent; fairly traceable to the defendant's challenged behavior; and likely to be
redressed by a favorable ruling." Davis v. Fed. Election Comm'n, 554 U.S. 724, 733 (2008).
The Supreme Court has stated, "There must be a causal connection between the injury and the
conduct complained of--the injury has to be 'fairly...trace[able] to the challenged action of the
defendant, and not...th[e] result [of] the independent action of some third party not before the
court.'" Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992) (quoting Simon v. E. Ky.
3

Welfare Rights Org., 426 U.S. 26, 41-42 (1976)). There is no question that Plaintiffs have
standing, as they have a personal interest in the outcome of this case.
Plaintiffs have standing to sue the Governor and Attorney General as the Plaintiffs have
set forth specific injuries which are fairly traceable to the Governor's and Attorney General's
continued enforcement of Indiana's Anti-Recognition statute. Specifically, in their Complaint
and Affidavits, Plaintiffs set forth the tangible harms, as well as the discrimination, humiliation,
and dignitary harms, they suffer as a result of the Governor's and Attorney General's enforcement
of Indiana Anti-Recognition statute). Compl. [dkt. 1 at 12-15, 55, 58, 59]; Pls. Ex. 1 [dkt. 21-
1 at 4- 5, 14, 15, 16, 20, 21, 22]; Pls. Ex. 2 [dkt. 21-2 at 4-5, 13, 14, 15, 19, 20, 21]; Pls.
Ex. 3 [dkt. 21-3 at 3-4 10, 11, 12, 16, 17, 18]. Plaintiffs will continue to suffer these harms if
the Defendants are not enjoined from enforcing Indiana's Anti-Recognition statute.
The Eleventh Amendment generally provides that "'an unconsenting state is immune
from suits brought in federal courts by her own citizens'.... However, a state's sovereign
immunity is not absolute." Ameritech Corp. v. McCann, 297 F.3d 582, 585 (7th Cir. 2002)
(citations omitted). For example, "a suit against state officials may proceed in the limited
circumstances identified by the Supreme Court in Ex Parte Young." Id. (citing Ex parte Young,
209 U.S. 123 (1908)).
In Ex Parte Young the Supreme Court held, "In making an officer of the state a party
defendant in a suit to enjoin the enforcement of an act alleged to be unconstitutional, it is plain
that such officer must have some connection with the enforcement of the act." Ex parte Young,
209 U.S. at 157 (emphasis added). The Supreme Court further stated, "The fact that the state
officer by virtue of his office has some connection with the enforcement of the act, is the
important and material fact, ... whether it arises out of the general law, or is specially created by
4

the act itself...." Id.; See also Entertainment Software Ass'n v. Blagojevich, 469 F.3d 641, 645
(7th Cir. 2006) (finding the "some connection" requirement was satisfied where attorney general
had power to enforce the statute); Allied Artists Pictures Corp. v. Rhodes, 473 F.Supp. 560, 567
(S.D. Ohio 1979) ("This Court is not the first to find that a governor's general duty to take care
that state laws are faithfully executed, as mandated by a state constitution, is sufficient
'enforcement' power to allow plaintiffs to invoke the Young fiction.") (citing Fed. Nat'l
Mortgage Ass'n. v. Lefkowitz, 383 F.Supp. 1294, 1298 (S.D.N.Y. 1974) (three-judge court);
Socialists Workers Party v. Rockefeller, 314 F.Supp. 984, 988 fn. 7 (S.D.N.Y. 1970) (three-judge
court), summarily aff'd, 400 U.S. 806 (1970)). To overcome the sovereign immunity, "It is not
necessary that the officer's enforcement duties be noted in the act." In re Dairy Mart
Convenience Store, Inc., 411 F.3d 367, 372-373 (2nd Cir. 2005).
The Young doctrine provides, "'a private party can sue a state officer in his or her official
capacity to enjoin prospective action that would violate federal law.'" Ameritech Corp., 297 F.3d
at 585-586 (quoting Dean Foods Co. v. Brancel, 187 F.3d 609, 613 (7th Cir. 1999)). The
Supreme Court has stated, "In determining whether the doctrine of Ex Parte Young avoids an
Eleventh Amendment bar to suit, a court need only conduct a 'straightforward inquiry into
whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly
characterized as prospective.'" Verizon Md., Inc. v. Public Serv. Comm'n of Md., 535 U.S. 635,
645 (2002) (citation omitted).
There is no question that Plaintiffs, in their complaint, allege an ongoing violation of their
constitutional rights and that the relief sought by Plaintiffs is prospective. Compl. [dkt. 1 at 1-3,
1-4]. As such, the exception recognized by the Supreme Court in Ex parte Young applies and
the Governor and Attorney General are proper parties.
5

A. Indianas Anti-Recognition Statute Is Distinguished From The Statutes In
The Cases Upon Which Defendants Rely

Indiana's Anti-Recognition statute is a law that impacts and affects hundreds of other
laws. Compl. [dkt. 1 at 12-15, 55, 58, 59]; See More Than Just a Couple: 614 Reasons Why
Marriage Equality Matters in Indiana: A Compendium of the Rights and Responsibilities of Civil
Marriage in the Indiana Code available at http://www.indianaequalityaction.org/wordpress/wp-
content/uploads/2012/11/More-Than-Just-a-Couple.pdf (last visited June 24, 2014). As such, the
Governor, as the chief executive officer of Indiana, and the Attorney General, as Indiana's chief
legal officer, have the ability to and actually do enforce Indiana's Anti-Recognition statute. See
Kitchen v. Herbert, 2014 WL 2868044, at 6 (10th Cir. 2014) (willingness to exercise their
duty to ensure enforcement meets the Ex Parte Young exception.) (citations omitted).
Defendants, in support of their argument that the Governor and Attorney General are not
proper parties, cite to several cases in which a defendant was dismissed from a plaintiff's suit.
Defs. Opp. Br. [dkt. 26 at 18]. However, the cases relied upon by Defendants in their brief are
distinguishable from this case. First, the statutes being challenged in the cases cited by
Defendants do not have the impact that Indiana's Anti-Recognition statute does on hundreds of
other statutes. See Shell Oil Co. v. Noel, 608 F.2d 208 (1st Cir. 1979); Mendez v. Heller, 530
F.2d 457 (2d Cir. 1976) ; Okpalobi v. Foster, 244 F.3d 405, 409 (5th Cir. 2001) (en banc);
Sherman v. Cmty. Consol. Sch. Dist. 21 of Wheeling Twp., 980 F.2d 437 (7th Cir. 1992); Long v.
Van de Kamp, 961 F.2d 151 (9th Cir. 1992). The other statutes affected by Indiana's Anti-
Recognition statute are implemented and enforced by the different executive branch
administrative agencies, including but not limited to the DOR and the DOP. The director and
commissioner, respectively, of the DOP and DOR are appointed by the Governor. Ind. Code 4-
15-2.2-14(a); Ind. Code 6-8.1-2-2.
6

In addition, the cases relied on by Defendants are distinguishable because, in those cases,
a party was dismissed because the defendant either did not intend to enforce, did not have the
ability to enforce, or had not taken action to enforce the statute at issue. Shell Oil Co., 608 F.2d
at 213 (case was dismissed on the ground that there was no actual controversy because there
was "no showing that defendants intend to enforce" the statute at issue.); Mendez, 530 F.2d at
460 (in a challenge to a divorce statute's residency requirement, attorney general was not a
proper party because there was "no connection with the enforcement..."); Okpalobi, 244 F.3d at
421 (en banc) (Governor and Attorney General not proper parties when "there is no act, no threat
to act, and no ability to act," in Plaintiff's cause of action challenging a state statute which
created "a private cause of action against medical doctors performing abortions."); Sherman, 980
F.2d at 441 ("Attorney General, who has never threatened the Shermans with prosecution and as
far as we can tell has no authority to do so" was not proper party in a suit challenging a statute
that required children to say Pledge of Allegiance); Long, 961 F.2d at 151-152 (Court dismissed
case under the Eleventh Amendment and under Article III for lack of "case or controversy"
because "the Attorney General has not in any way indicated that he intends to enforce..." the
statute at issue). Unlike the cases cited by Defendants, the Attorney General and Governor both
have stated that they intend to, both have the ability to, and both have taken steps to enforce
Indiana's Anti-Recognition statute.
B. The Governor Enforces The Indiana Anti-Recognition Statute
Pursuant to the Indiana Constitution, "the executive power of the State shall be vested in
a Governor." Ind. Const. Art. 5 1 . Further, the Indiana Constitution states, "The Governor
shall take care that the laws are faithfully executed." Ind. Const. Art. 5 16. The Indiana
Supreme Court has stated "that the executive power is the power to execute the laws, to carry
7

them into effect as distinguished from the power to make the laws and the power to judge
them..." Tucker v. State, 35 N.E.2d 270, 290 (Ind. 1941).
The Governor's authority over the executive has been stated as follows:
The Governor has the responsibility of ensuring the efficient operation of the executive
branch of government. Ind. Code 4-3-6-3 provides in part that the Governor shall re-
examine from time to time the organization of all agencies of State government and
determine what changes are necessary to accomplish various purposes including "to
promote the better execution of laws, the more effective management of the executive
and administrative branch of the government and of its agencies and functions, and
expeditious administration of the public business." In turn, the Governor's authority to
regulate the terms and conditions of employment for executive branch employees is
inherent in a number of statutes.

Nass v. State ex rel. Unity Team, Local 9212, 718 N.E.2d 757, 763 (Ind. Ct. App. 1999)
(citations omitted), trans. denied. The Governor clearly has "some connection" to the
enforcement of Indiana's Anti-Recognition statute. The Governor's constitutional charge to "take
care that the laws are faithfully executed," has been found to be sufficient enforcement power to
overcome the Eleventh Amendment. Ind. Const. Art. 5 16; See Allied Artists Pictures Corp.,
473 F.Supp. at 567; Fed. Nat'l Mortgage Ass'n., 383 F.Supp. at 1298; Socialists Workers Party,
314 F.Supp. 984, summarily aff'd, 400 U.S. 806 (1970).
1
The Governor's constitutional mandate
creates "some connection" with the enforcement of Indiana's Anti-Recognition statute, making
the Governor a proper party.
Plaintiff, Shannon Bowling, is a state employee. Pls. Ex. 2 [dkt. 21-2 at 3, 7]. The
Governor has the "authority to regulate the terms and conditions of employment for executive
branch employees..." Nass, 718 N.E.2d at 763. As a state employee, Shannon is eligible to
1
Governor and/or Attorney General are proper parties as is evidenced by the other federal district court challenges
to other state's similar statutory and constitutional same-sex marriage bans. See Latta v. Otter, 2014 WL 1909999
(D. Idaho 2014) ; Wolf v. Walker, 2014 WL 2558444 (W.D. Wis. 2014); Geiger v. Kitzhaber, 2014 WL 2054264 (D.
Or. 2014); De Leon v. Perry, 2014 WL 715741 (W.D. Tex. 2014); Bourke v. Beshear, 2014 WL 556729 (W.D. Ky.
2014); DeBoer v. Snyder, 2014 WL 1100794 (E.D. Mich. 2014); Tanco v. Haslam, 2014 WL 997525 (M.D. Tenn.
2014); Kitchen v. Herbert, 961 F.Supp.2d 1181 (D. Utah 2013).

8

participate in the State's benefit plans, which are administered by the DOP. Pls. Ex. 2 [dkt. 21-2
at 3, 8]. The director of the DOP is appointed by the Governor and serves at the governors
pleasure. Ind. Code 4-15-2.2-14(a)(b). It is undisputed that the mission of the DOP is "to
deliver integrated Human Resources services, allowing the governor's office and agencies to
effectively achieve their state goals and objectives." DOPs website,
http://www.in.gov/spd/2284.htm; Pls. Ex. 2 [dkt. 21-2 at 3, 9]. It is undisputed that the DOP
relies on Ind. Code 31-11-1-1 to define spouse for State's benefit plans to be "a member of the
opposite-sex to whom you are legally married." DOPs Employee Group Insurance Benefit
Handbook, http://www.in.gov/spd/files/employee_handbook.pdf; Pls. Ex. 2 [dkt. 21-2 at 3, 12].
This definition of spouse does not allow Shannon's wife, Michelle Bowling, or Michelle's
children to be eligible for coverage under the State's benefit plans. Pls. Ex. 2 [dkt. 21-2 at 4,
13-15]. The Governors, through the DOP, refusal to recognize same-sex couples for purposes
of State's employee benefits creates direct connection with the enforcement of Indiana's Anti-
Recognition statute. As a result, an Order enjoining the Governor, through the DOP, from
implementing and enforcing his policies following the Indiana Anti-Recognition statute will
directly redress the harms suffered by Plaintiffs Shannon and Michelle.
Indiana Statute provides that the DOR, is under the control of the governor, who shall
appoint or employ the commissioner. Ind. Code 6-8.1-2-2. The DORs website states:
In accordance with IC 31-11-1-1, Indiana does not recognize same-sex marriages.
Therefore, same-sex couples who file federal returns with a married filing status much
each file their Indiana income tax returns with filing status of single.

In order to calculate Indiana income tax liability, same-sex spouses who file federal
returns with a married filing status must each complete a sample federal
returnentering information as if single.

9

DORs website, http://www.in.gov/dor/4895.htm; Pls. Ex. 1 [dkt. 21-1 at 4, 19]; Pls. Ex. 2 [dkt.
21-2 at 4, 18]; Pls. Ex. 3 [dkt. 21-3 at 4, 15]. As a result of the DORs requirements, which
are under the control of the Governor, Shannon and Michelle were required to spend additional
time and preparation fees to prepare and file two separate Indiana income tax returns with a
filing status of single and to prepare three federal income tax returns. Pls. Ex. 1 [dkt. 21-1 at 5,
20]; Pls. Ex. 2 [dkt. 21-2 at 5, 19]. Through the Governors statutorily required control of the
DOR, Plaintiffs injuries
2
are a direct result of the Governor implementing and enforcing
Indianas Anti-Recognition statute.
After this Courts rulings in the companion cases, the Governor issued the following
press release acknowledging his authority to enforce the statute:
Governor Pence supports the Attorney Generals efforts to appeal the federal courts
ruling and defend Indianas right to define the institution of marriage for the residents of
our state. Because the Governor believes in the rule of law, the State of Indiana will
comply with the federal courts order as this case moves through the appeals process.

Office of the Governor Statement on Federal Court Ruling on Indianas Marriage Statute,
http://www.in.gov/activecalendar/EventList.aspx?view=EventDetails&eventidn=176231&infor
mation_id=202906&type=&syndicate=syndicate (June 25, 2014). In Kitchen, the 10
th
Circuit
found the Ex Parte Young exception applied because state agencies with responsibility for the
recognition of out-of-state marriages are being directed by the Governor. Kitchen, 2014 WL
2868044, at 6.
The Governor's personal statements reflect his support for the policies he has effectuated
in implementing Indiana's Anti-Recognition statute. Specifically, the Governor, while he was a
2
This Court found that Plaintiffs have alleged a concrete injury by having to fill out three federal tax returns in
order to file separate returns for Indiana. Baskin v. Bogan, Case No. 1:14-cv-00355-RLY-TAB, Dkt. No. 89, at 10
(S.D. Ind. June 25, 2014).
10

Congressman for the State of Indiana in the United States House of Representatives, when
discussing the defense of "traditional marriage" stated:
The Bible says "If the foundations are destroyed, what can the righteous do?" And
marriage is such a foundation in our society. Marriage was ordained by God, established
by law. It is the glue of the American family and the safest harbor to raise children. We
must preserve and defend this foundation in our society, and we begin by defending the
right of States like Indiana to define marriage as it has ever been defined and will always
be defined in the hearts of the overwhelming majority of the American people.

150 Cong. Rec. H6580, 6587 (daily ed. July 22, 2004) (statement of Rep. Pence). In response to
federal lawsuits challenging Indiana's Anti-Recognition statute, the Governor's spokesperson
stated, "Governor Pence Supports Indiana's marriage law, and he will fully cooperate with the
Attorney General as he defends Indiana's law in court." Tim Evans, Indiana couples file federal
lawsuit to recognize same-sex marriage, INDIANAPOLIS STAR, Mar. 7, 2014, available at
http://www.indystar.com/story/news/2014/03/07/indiana-couples-file-federal-lawsuit-to-
recognize-same-sex-marriage/6171287/.
The Governor implements policies enforcing Indianas Anti-Recognition statute through
the DOP and DOR which directly harms the Plaintiffs. As such, the Governor is a proper party.
C. The Attorney General Enforces And Defends The Indiana Anti-Recognition
Statute

The Attorney General is required to "consult with and advise the several prosecuting
attorneysand when, in his judgment, the interest of the public requires itassist in the
prosecution; and shall represent the state in any matter involving the rights or interests of the
state." Ind. Code 4-6-1-6. Defendants, without citing to any authority, argue that the Attorney
General does not have the authority to enforce Indiana's Anti-Recognition statute. Defs. Opp.
Br. [dkt. 26 at 19].
11

Plaintiffs, in their complaint, challenge Indiana Code 31-11-1-1 and all other related
laws. Compl. [dkt. 1 at 4, 12] As this Court has already found in the companion case, the
Attorney General is a proper party. Baskin, Case No. 1:14-cv-00355-RLY-TAB Dkt. No. 89, at
9-10. This Court specifically relied upon the Attorney Generals general prosecutorial authority.
Id. at 9. While Indiana Code 31-11-1-1 does not include a criminal provision, other Indiana
statutes allow the Attorney General to prosecute public officials and same-sex marriage
applicants. Id. at 9 (citing Ind. Code 31-11-11-7; 31-11-11-1; 31-11-11-3).
Unlike the cases cited by Defendants in their brief, the Attorney General has made public
statements that he intends to enforce Indiana's Anti-Recognition statute. Specifically, the
Attorney General, in response to federal lawsuits challenging Indiana's Anti-Recognition statute,
stated:
I will represent the state and defend our statute now and on any appeal to the best of my
skill and ability, as I swore an oath to do. As state government's lawyer, I must defend
the state's authority to define marriage at the state level within Indiana's borders.

Tim Evans, Indiana couples file federal lawsuit to recognize same-sex marriage, INDIANAPOLIS
STAR, Mar. 7, 2014, available at http://www.indystar.com/story/news/2014/03/07/indiana-
couples-file-federal-lawsuit-to-recognize-same-sex-marriage/6171287/. The Attorney General
has also issued official opinions advising public officials that Indiana Code 31-11-1-1 prohibits
the recognition of same sex marriages. See 2004 Ind. Op. Atty Gen. No. 4 (Apr. 29, 2004);
2004 Ind. Op. Atty Gen. No. 3 (Mar. 26, 2004).
In addition to the Attorney General's public statements, the Attorney General has taken
action to enforce and defend Indiana's Anti-Recognition statute in other cases. Specifically, the
Attorney General "intervened on behalf of the clerks" in the state court case challenging
Indiana's Anti-Recognition statute. Morrison v. Sadler, 821 N.E.2d 15, 18 (Ind. Ct. App. 2005).
12

Furthermore, the Attorney General, as the main author, filed an Amicus Brief in the 10th Circuit
in support of other statutes similar to Indiana's Anti-Recognition statute. Brief for the State of
Indiana et al. as Amici Curiae in Support of Reversal, Kitchen v. Herbert, Bishop v. Smith,
Barton v. Smith, Nos. 13-4178, 14-5003, 14-5006 (10th Cir. Feb. 2, 2014). Therefore, the Ex
parte Young exemption applies as there is "some connection" with the Attorney General and the
enforcement of Indiana's Anti-Recognition statute. As such, the Attorney General is a proper
defendant.
Even if the Court finds that the Governor and Attorney General are not proper parties, the
Court will still have to address the merits of Plaintiffs' case as Defendants, in their Answer, have
admitted that Plaintiffs have brought "at least one claim over which the Court would have federal
question jurisdiction..." Ans. [dkt. 27 at 5-6, 15].
II. THE TAX INJUNCTION ACT DOES NOT BAR PLAINTIFFS ACTION
Defendants argue that this Court lacks subject-matter jurisdiction to enter an injunction
against Defendant Michael Alley, in his official capacity as Commissioner of the Indiana DOR
(herein "Commissioner"), because of the Tax Injunction Act (herein "TIA"). Defs. Opp. Br.
[dkt. 26 at 19].
The TIA provides, "The district courts shall not enjoin, suspend or restrain the
assessment, levy or collection of any tax under State law where a plain, speedy and efficient
remedy may be had in the court of such State." 28 U.S.C. 1341. Relying on the legislative
history, the Supreme Court stated, "The Act was designed expressly to restrict 'the jurisdiction of
the district courts of the United States over suits relating to the collection of State taxes.'" Hibbs
v. Winn, 542 U.S. 88, 104 (2004) (citation omitted). The Supreme Court went on to state,
"Nowhere does the legislative history announce a sweeping congressional direction to prevent
13

'federal-court interference with all aspects of state tax administration.'" Id. at 105 (citation
omitted).
In In re Wal-Mart Stores, Inc., the Seventh Circuit, relying on the Supreme Court's most
recent decision to address the TIA, stated, "The Court clarified that the Act bars federal
jurisdiction only when 'state taxpayers seek federal-court orders enabling them to avoid paying
state tax.'" 2009 WL 7823752, at 1 (7th Cir. Nov. 12, 2009) (emphasis added) (quoting Hibbs,
542 U.S. at 107). Stated differently, the TIA only "blocks taxpayers from suing in federal court
to tie up a state's 'rightful tax revenue' or to avoid paying state taxes both of which would reduce
the flow of tax revenue." Johnson v. Orr, 551 F.3d 564, 571 (7th Cir. 2008) (citations omitted);
See also Dunn v. Carey, 808 F.2d 555, 558 (7th Cir. 1986) (TIA does not bar lawsuits that
"might increase state taxes").
Here, Plaintiffs are not challenging the collection of State taxes or seeking a federal court
order to avoid paying state taxes. Instead, Plaintiffs are challenging the DORs tax filing
guidance which requires Plaintiffs to file Indiana income tax returns with a filing status of single.
As set forth in the undisputed material facts, the DOR's website provides, "In accordance with IC
31-11-1-1...same-sex couples who file federal returns with married filing status must each file
their Indiana income tax returns with a filing status of single." DORs website,
http://www.in.gov/dor/4895.htm; Pls. Ex. 1 [dkt. 21-1 at 4, 19]; Pls. Ex. 2 [dkt. 21-2 at 4, 18];
Pls. Ex. 3 [dkt. 21-3 at 4, 15]. As a result of DOR's policy, Plaintiffs were required to spend
additional time and preparation fees to prepare and file two separate Indiana tax returns with a
filing status of "single" and to prepare three federal income tax returns. Pls. Ex. 1 [dkt. 21-1 at 5,
20]; Pls. Ex. 2 [dkt. 21-2 at 5, 19]. As a result of duplicate filings, the DOR incurs additional
expense in processing those filings.
14

As Defendants admit in their brief, "Indiana has a flat 3.4% tax rate for individual
income," so there would be no reduction in state taxes if Plaintiffs filed joint state income tax
returns. See Defs. Opp. Br. [dkt. 26 at 19-20]. As such, the TIA does not bar Plaintiffs' claims
against the Commissioner as Plaintiffs' claims would not impede the collection of taxes or
reduce the flow of tax revenue." Johnson, 551 F.3d at 571. Therefore, this Court has subject-
matter jurisdiction to enter an injunction against the Commissioner.
Nonetheless, even if the Court finds that the Commissioner is not a proper party, the
Court will still have to address the merits of Plaintiffs' case as the Defendants, in their Answer,
have admitted that Plaintiffs have brought "at least one claim over which the Court would have
federal question jurisdiction." Ans. [dkt. 27 at 5-6, 15].
III. DUE TO DOCTRINAL DEVELOPMENTS BAKER V. NELSON IS NO LONGER
CONTROLLING AND DOES NOT BAR PLAINTIFFS CHALLENGE TO
INDIANAS ANTI-RECOGNITION STATUTE

Preliminarily, Defendants argue that this Court has no authority to consider whether
Indiana's Anti-Recognition statute violates the United States Constitution because it does not
involve a "substantial federal question." Defs. Opp. Br. [dkt 26 at 33]. Defendants rely on Baker
v. Nelson, an appeal from the Minnesota Supreme Court which held that same-sex couples did
not have the right to marry under the Due Process or Equal Protection Clause. See Baker v.
Nelson, 409 U.S. 810 (1972) (per curiam). In Baker, the Supreme Court summarily dismissed
the appeal by issuing a one sentence order stating that "[t]he appeal is dismissed for want of a
substantial federal question" without further explanation from the Court. Id. at 810. Defendants
argue that Baker is binding precedent because it was decided on its merits and was not overruled
by Windsor.
15

The Supreme Court has held that orders from cases that are disposed of by summary
dismissal "are not of the same precedential value as would be an opinion of this Court treating
the question on the merits." Edelman v. Jordan, 415 U.S. 651, 671 (1974).
3
Although a
dismissal for lack of a substantial federal question is a decision on its merits, the Supreme Court
has found exception where a precedent that has not been overruled may be disregarded when
later doctrinal developments indicate otherwise." Hicks v. Miranda, 422 U.S. 332, 344 (1975)
(citations omitted).
Defendants fail to acknowledge the doctrinal development of the Supreme Court's line of
cases decided subsequent to Baker in 1971 and through Windsor in 2013, which have determined
that classifications based on sex and sexual identity raise substantial federal questions. Romer v.
Evans, 517 U.S. 620 (1996) (holding that a state constitutional amendment in Colorado
preventing protected status based upon homosexuality or bisexuality did not satisfy the U.S.
Constitution); See also Lawrence v. Texas, 539 U.S. 558 (2003) (overruling Bowers v. Hardwick
and finding that laws criminalizing sodomy were unconstitutional and that intimate consensual
sexual conduct was part of the liberty protected the U.S. Constitution). Most notably,
Defendants disregard the fact that the Supreme Court has already re-examined Baker and found
that a substantial federal question does exist when it struck down Section 3 of the Federal
Defense of Marriage Act as unconstitutional in Windsor and considered its companion case
Hollingsworth v. Perry. U.S. v. Windsor, 133 S.Ct. 2675, 2695 (2013); Hollingsworth v. Perry,
133 S.Ct. 2652 (U.S. 2013) (dismissing the appeal for lack of standing, not for lack of a
3
The Supreme Court cited a dissenting opinion of Justice Brandeis: "In cases involving the Federal Constitution,
where correction through legislative action is practically impossible, this Court has often overruled its earlier
decisions. The Court bows to the lessons of experience and the force of better reasoning, recognizing that the
process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function." Edelman,
415 U.S. at 671. (Brandeis, J., dissenting) (citation omitted).

16

substantial federal question); See also Wolf v. Walker, 2014 WL 2558444 at 5 (W.D. Wis. 2014)
(noting that the Supreme Court, including the dissenters, ignored Baker in the Windsor decision
which illustrates that Baker is no longer controlling); Latta v. Otter, 2014 WL 1909999 at 9
(D.Idaho 2014) (finding that the Windsor Court affirmed the United States Court of Appeals for
the Second Circuit, which expressly held that Baker did not foreclose review of the federal
marriage definition, quoting, "'Even if Baker might have resonance...in 1971, it does not today'"
(quoting Windsor v. United States, 699 F.3d 169, 17880 (2d Cir.2012))).
Post-Windsor, the United States 10th Circuit Court of Appeals, this Court, and this
Court's sister districts
4
have all found the summary dismissal in Baker does not preclude
constitutional challenges to the bans on same-sex marriage and has no lasting precedential effect
in 2014. Kitchen v. Herbert, 2014 WL 2868044, at 10 (10th Cir. 2014); Baskin, Case No. 1:14-
cv-00355-RLY-TAB, at 13-14. Nonetheless, Defendants argue that the Plaintiffs herein and
every sister district have misinterpreted Windsor and have ignored the State's ability to regulate
marriage. Defs. Opp. Br. [dkt. 26 at 34]. Defendants claim that because the Supreme Court's
holding in Windsor is "plain" and "narrow" and because the Supreme Court did not explicitly
overrule Baker, the regulation of marriage should be left to the "usual" course of business of the
State. Defs. Opp. Br. [dkt. 26 at 33-34].
The Windsor Court was explicitly clear that federalism and "[s]tate laws defining and
regulating marriagemust respect the constitutional rights of persons." Windsor, 133 S.Ct. at
2691. Indiana's Anti-Recognition statute, which defines marriage as between a man and a
4
See Wolf v. Walker, 2014 WL 2558444 (W.D. Wis. 2014), Whitewood v. Wolf, 2014 WL 2058105 (M.D. Penn
2014); Geiger v. Kitzhaber, 2014 WL 2054264 (D. Ore. 2014); Latta v. Otter, 2014 WL 1909999 (D.Idaho 2014);
Bishop v. United States, 2014 WL 116013 (N.D. Okla. 2014); De Leon v. Perry, 2014 WL 715741 (W.D. Tex.
2014); Obergefell v. Wymyslo, 962 F.Supp.2d 968 (S.D. Ohio 2013); Bourke v. Beshear, 2014 WL 556729 (W.D.
Ky. 2014); DeBoer v. Snyder, 2014 WL 1100794 (E.D. Mich. 2014); Bostic v. Rainey, 2014 WL 561978 (E.D. Va.
2014); Tanco v. Haslam, 2014 WL 997525 (M.D. Tenn. 2014); Kitchen v. Herbert, 961 F.Supp.2d 1181 (D. Utah
2013).
17

woman, does not respect the constitutional rights of the citizens of Indiana. Because doctrinal
development has rendered Baker suspect and no longer binding, and because the laws defining
marriage are subject to constitutional guarantees, this Court must find that Indiana's Anti-
Recognition statute is unconstitutional.
IV. DEFENDANTS ENFORCEMENT OF INDIANAS ANTI-RECOGNITION
STATUTE VIOLATES PLAINTIFFS EQUAL PROTECTION RIGHTS

Defendants assert Plaintiffs lack standing to challenge Indiana's Anti-Recognition statute
due to Indiana Code 31-11-8-6. Defs. Opp. Br. [dkt. 26 at 30]. However, 31-11-8-6 does not
apply to the pending matter. This statute states that marriages entered into in other states with
the purpose of evading two Indiana statutes, neither of which is Indiana's Anti-Recognition
statute, are void. Ind. Code 31-11-8-6. Furthermore, Defendants' argument is circular because
even if Indiana Code 31-11-8-6 incorporates Indiana's Anti-Recognition statute, it can only
incorporate this statute so long as it passes constitutional muster. If Indiana's Anti-Recognition
statute is held to be unconstitutional, Indiana Code 31-11-8-6 will remain a valid statute by its
terms.
A. Indiana's Anti-Recognition Statute Classifies Based On Sex And Sexual
Orientation

Defendants argue that Indiana's Anti-Recognition statute does not classify based on sex
because "men and women are equally affected by Indiana's traditional marriage definition."
Defs. Opp. Br. [dkt. 26 at 39]. Defendants raise a similar argument that Indiana's Anti-
Recognition statute does not classify based on sexual orientation. Id. Defendants argue that
homosexual and heterosexual persons are treated the same under the statute because both are
prevented from marrying a person of the same-sex. Id. However, both of these arguments
regarding classification based on sex and sexual orientation are akin to that put forth in Loving v.
18

Virginia. 388 U.S. 1 (1967). In Loving the state argued that laws criminalizing interracial
marriages did not violate the Equal Protection Clause because both black and white individuals
were equally punished under such laws. Id. at 7-8. The Supreme Court rejected such reasoning
in that case and such reasoning should similarly be rejected in this case. Id. at 8-9 ("[T]he fact of
equal application does not immunize the statute from the very heavy burden of justification
which the Fourteenth Amendment has traditionally required of state statutes drawn according to
race.").
Defendants rely in part on Washington v. Davis as support for the argument that Indiana's
Anti-Recognition statute does not create a classification based on sexual orientation as it equally
applies to heterosexuals and homosexuals. Defs. Opp. Br. [dkt. 26 at 39] (citing 426 U.S. 229
(1976)). However, in Washington there was no claim of intentional or purposeful discrimination.
Id. at 235. The disparate impact on the members of different races in that case was not the
purpose for the recruiting procedures; therefore, the procedures were constitutional. Id. at 246.
Here, however, it is clear that the disparate impact is the intent of Indiana's Anti-Recognition
statute. The language of the statute distinguishes that marriages between members of the same-
sex are void and will not be recognized in Indiana. Ind. Code 31-11-1-1. Therefore, by its
very terms the statute treats differently marriages between opposite-sex couples and marriages
between same-sex couples entered outside of the state. This disparate treatment is not merely a
tangential effect, but rather is the very purpose of the statute.
B. Heightened Scrutiny Applies To Classifications Based On Sexual Orientation
Homosexuals are a suspect class; therefore, heightened scrutiny must be applied in an
Equal Protection analysis. The Supreme Court has not explicitly stated what level of scrutiny
applies to sexual orientation. However, Supreme Court precedent does indicate that the Court
19

applies heightened scrutiny when reviewing equal protection claims related to sexual orientation
classifications. In Romer v. Evans the Supreme Court did not state which level of scrutiny
applied because the state constitutional amendment at issue failed to even meet rational basis.
517 U.S. at 632. However, the Supreme Court seemed to apply a heightened standard of review.
Lawrence, 539 U.S. at 580 (O'Connor, J., concurring) (The Supreme Court in Romer conducted
"a more searching" inquiry than it had in previous rational basis cases).
In Lawrence v. Texas the Supreme Court again did not explicitly state the level of
scrutiny applied in finding that the Texas law criminalizing sexual conduct between persons of
the same-sex was unconstitutional. Lawrence, 539 U.S. 558. However, the analysis employed
by the Court indicates heightened scrutiny applied. The Supreme Court required the state to
provide a "legitimate state interest which [could] justify its intrusion into the individuals
personal and private life." Id. at 560. This statement makes clear that the Supreme Court was
not merely inquiring whether there was a rational basis for the law, but rather shifted the burden
to the state to provide an interest justifying the particular law.
The Supreme Court in Windsor, while not explicitly stating the level of scrutiny applied
in holding that the federal DOMA was unconstitutional, applied heightened scrutiny in its
analysis. United States v. Windsor, 133 S.Ct. 2675, 2693 (2013); See Windsor, 133 S.Ct. at 2706
(Scalia, J., dissenting). The Ninth Circuit Court of Appeals considered the analysis applied by
the Supreme Court in Windsor and concluded that the Court applied heightened scrutiny.
SmithKline Beecham Corp v. Abbott Laboratories, 740 F.3d 471, 481 (9th Cir. 2014) (rehg en
banc denied). First, the Supreme Court in Windsor did not consider whether there was any
conceivable rational purpose for federal DOMA. Id. at 481. Rather, the Supreme Court
examined the actual purpose of the law. Windsor, 133 S.Ct. at 2693-2694; SmithKline, 740 F.3d
20

471, 481-482. This examination of the actual purpose of the law, rather than any conceivable
rational purpose, is a more exacting scrutiny than rational basis. Fed. Commc'n Comm'n v. Beach
Commc'ns, 508 U.S. 307, 315 (1993) (In applying rational basis review the Supreme Court
stated, "It is entirely irrelevant for constitutional purposes whether the conceived reason for the
challenged distinction actually motivated the legislature.").
Second, the Supreme Court required that Congress "justify disparate treatment of that
group." Windsor, 133 S.Ct. at 2693. Just as in Lawrence, the Supreme Court placed the burden
on the proponent of the law, rather than presuming that the law in question is constitutional as
would be required under rational basis review. Id.; See Williamson v. Lee Optical, 348 U.S. 483
(1955); Kotch v. Pilot, 330 U.S. 552 (1947). Furthermore, this language indicates a balancing of
interests; however, in applying rational basis "it is for the legislature, not the courts, to balance
the advantages and disadvantages of the new requirement." Lee Optical, 348 U.S. at 487 (1955).
The Seventh Circuit has previously applied rational basis review to classifications based
on sexual orientation. However, this was before the most recent holdings from the Supreme
Court. The court stated in Schroeder v. Hamilton School District that no heightened protection
applied to homosexuals; however, that statement was dicta. 282 F.3d 946, 950-951 (7th Cir.
2002); Wolf v. Walker, 2014 WL 2558444 at 26 (W.D. Wis. 2014). Furthermore, the Seventh
Circuit relied on Bowers v. Hardwick for this statement, but Bowers has since been overruled by
Lawrence. Lawrence v. Texas, 539 U.S. at 578; Schroeder, 282 F.3d at 950-951. Recently,
another district court in this circuit concluded that because the statement in Schroeder was dicta
and in light of the Supreme Court rulings since, "Schroeder does not resolve the question of the
appropriate standard of review to apply to discrimination against gay persons." Wolf, 2014 WL
2558444 at 26. That court, as well as several other federal district courts, went on to conclude
21

that sexual orientation is subject to heightened scrutiny. Id. at 29; See also Latta v. Otter, 2014
WL 1909999 at 17-18 (D. Idaho 2014); Whitewood v. Wolf, 2014 WL 2058105 at 14 (M.D. Pa
2014); Wolf, 2014 WL 2558444 at 31; De Leon v. Perry, 2014 WL 715741 at 14 (W.D. Tex.
2014); Henry v. Himes, 2014 WL 1418395 at 14 (S.D. Ohio 2014); Bostic v. Rainey, 2014 WL
561978, fn 16 (E.D. Va. 2014); Obergefell v. Wymyslo, 962 F.Supp.2d 968, 991 (S.D. Ohio
2013). Therefore, this Court should follow the Supreme Court's most recent decisions which
apply a heightened level of scrutiny to classifications based on sexual orientation.
The Supreme Court has distinguished four characteristics which are determinative to
whether heightened scrutiny applies to a class under Equal Protection. Such factors are: (1) the
class has been subjected to discrimination; (2) the distinguishing characteristics of the class do
not affect a class member's ability to contribute to society; (3) the class exhibits obvious,
immutable, or distinguishing characteristics that define it as a discrete group; and (4) the class is
a minority or politically powerless. Lyng v. Castillo, 477 U.S. 635, 638 (1986) (citing Mass. Bd.
of Ret. v. Murgia, 427 U.S. 307, 313-314 (1976)); City of Cleburne, Tex. v. Cleburne Living
Center, 473 U.S. 432, 440-441 (1985). Of these factors, the history of discrimination and the
ability of the class members to equally contribute to society are the most important. Windsor v.
United States, 699 F.3d 169, at 181 (2d Cir. 2012), aff'd, United States v. Windsor, 133 S.Ct.
2675 (2013) (citing Cleburne, 473 U.S. at 442 n. 10, at 472 n. 24; Nyquist v. Mauclet, 432 U.S.
1, 9 n.11 (1977)).
Defendants do not argue that homosexuals, as a class, have not been subjected to
discrimination, most likely because such an argument cannot reasonably be made. The
discrimination to which homosexuals have been subjected has been well documented by
numerous courts, including the Supreme Court and the Seventh Circuit. Lawrence, 539 U.S. at
22

571; Ben-Shalom v. Marsh, 881 F.2d 454, 465 (7th Cir. 1989); Whitewood v. Wolf, 2014 WL
2058105, at 12-13 (M.D. Pa 2014); Obergefell v. Wymyslo, 962 F. Supp. 2d 968, 987-988.
Similarly, Defendants do not argue that homosexuals cannot equally contribute to
society. Defendants cloud this factor and, rather than dispute homosexuals' ability to equally
contribute, Defendants state that the distinguishing characteristic to same-sex couples is their
inability to procreate together. Defs. Opp. Br. [dkt. 26 at 41-42]. However, the classification at
issue is sexual orientation of the individual. The fundamental right to marry is an individual
right. Lawrence, 539 U.S. at 574. The right to have one's marriage, which is lawful in the state
where legally solemnized, recognized in Indiana is also an individual right. If the classification
at issue was procreative couples and non-procreative couples, it would not only be same-sex
couples whose marriages were not recognized by the state. Rather, all married couples entering
Indiana would be required to attest that they are capable of procreating together in order to
receive recognition for their marriage.
Furthermore, in City of Cleburne, upon which Defendants rely, the Supreme Court makes
clear that the class at issue, the mentally disabled, "have a reduced ability to cope with and
function in the everyday world." 473 U.S. 432, 442 (1985). In determining that this made
heightened scrutiny inappropriate for the mentally disabled, the Supreme Court relied upon the
ruling in Frontiero v. Richardson in which the Supreme Court held that an individual's sex (the
distinguishing characteristic) does not bear a relation to the ability to contribute to society;
therefore, heightened scrutiny applied. 411 U.S. 677, 686 (1973). Using this analysis, the
Supreme Court in Cleburne articulated that the distinguishing characteristic of mental disability
did in fact bear a relation to the ability to contribute to society. 473 U.S. at 442. The
distinguishing characteristic at issue in this case of sexual orientation is more akin to sex and is
23

unrelated to an individual's ability to contribute to society; therefore, heightened scrutiny is
appropriate.
Defendants only briefly mention that Plaintiffs "claim that sexual orientation...is an
'immutable' characteristic." Defs. Opp. Br. [dkt. 26 at 39]. However, Defendants offer no
argument or evidence disputing this. A characteristic is immutable if it is so central to an
individual's identity that they should not be required to choose between publicly acknowledging
the characteristic (in this case a person's sexual orientation) and individual rights. Obergefell,
962 F. Supp. 2d at 991 (citing Lawrence, 539 U.S. at 576-577); See also Cece v. Holder, 733
F.3d 662, 669 (7th Cir. 2013) (In a ruling regarding immigration, the court explains that sexual
orientation is included as "a characteristic that is either immutable or is so fundamental to
individual identity or conscience that a person ought not be required to change." The Seventh
Circuit continued, "We respect an individual's right to maintain characteristics that are
'fundamental to their individual identities.'") (quoting Escobar v. Holder, 657 F.3d 537, 545 (7th
Cir. 2011)); De Leon v. Perry, 2014 WL 715741, at *13 (W.D. Tex. 2014). Sexual orientation is
fundamental to a person's identity and is, therefore, an immutable characteristic. Ex. 5, 4; Ex. 6
4; Ex. 7, 4; Wolf, 2014 WL 2558444 at 28 (citing De Leon, 975 F.Supp.2d at 651). Plaintiffs
sexual orientation is not a choice. Ex. 5, 4; Ex. 6, 4; Ex. 7, 4.
Defendants dispute that homosexuals lack political power. Defs. Opp. Br. [dkt. 26 at 42].
That this is the only one of the four factors to determine whether heightened scrutiny applies that
Defendants actually dispute is telling in itself. Political powerlessness is not as important as the
other factors in this analysis. Windsor v. United States, 699 F.3d 169, 182 (2d Cir. 2012); See
Cleburne, 473 U.S. at 472 n. 24 (Marshall, J., concurring in part and dissenting in part) ("The
'political powerlessness' of a group may be relevant, but that factor is neither necessary, as the
24

gender cases demonstrate, nor sufficient, as the example of minors illustrates."). This is clear by
the fact that "discrimination against white citizens is subject to strict scrutiny." Wolf, 2014 WL
2558444 at 28 (citing City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989)).
Defendants attempt to support this argument with the fact that House Joint Resolution 3
will not be put on the ballot in November of 2014. Defs. Opp. Br. [dkt. 26 at 42]. The proposed
constitutional amendment's absence from the November ballot in no way disputes the fact that
homosexuals lack political power. HJR3 passed with an amendment, and the only reason HJ R3
will not be on the November ballot is due to the requirement that proposed amendments must
pass twice in separately elected General Assemblies. Furthermore, the only change made to this
proposed constitutional amendment was to remove the language which would have applied to
same-sex and opposite-sex couples alike. The current proposed amendment would still ban
same-sex marriages and their recognition in the state of Indiana. H.J. Res. 3, 118th Gen. Assem.,
Second Reg. Sess. (Ind. 2014). Homosexuals political powerlessness is further evidenced by
the fact that thirty-one (31) states have passed statutes and/or constitutional prohibitions against
same-sex marriage. http://www.freedomtomarry.org/pages/where-state-laws-stand (last visited
June 24, 2014).
Finally, Indiana law itself supports that homosexuals are a suspect class requiring
heightened scrutiny. Indiana defines a "Bias Crime" as one perpetrated "because of the color,
creed, disability, national origin, race, religion, or sexual orientation of the injured persons."
Ind. Code 10-13-3-1
5
(emphasis added). Of the classes listed, all except disability are subject
to strict scrutiny. Cleburne at 440; Larson v. Valente, 456 U.S. 228, 246 (1982); Bd. of Educ. of
Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 715 (1994) (O'Connor, J., concurring)
5
It is noteworthy that sex is a classification subject to intermediate scrutiny; however, Indiana has not included it as
a protected class in this statute.
25

(Religion under the Equal Protection Clause is subject to strict scrutiny). As previously
discussed, the Supreme Court has held that disability is not subject to heightened scrutiny as it
may bear a relation to an individual's ability to participate in or contribute to society. Cleburne,
473 U.S. 432, 441. This distinction does not apply to sexual orientation.
Indianas Anti-Recognition statute discriminates on the basis of sexual orientation, which
is a suspect class. Therefore, heightened scrutiny applies.
V. THE FUNDAMENTAL RIGHT TO MARRY ENCOMPASSES THE RIGHT TO
MARRY A PERSON OF ONES CHOICE REGARDLESS OF GENDER AND
THE COURT SHOULD FIND INDIANAS ANTI-RECOGNITION STATUTE
UNCONSTITUTIONAL

The fundamental right to marry has historically been a liberty interest and a right personal
to the individual. Lawrence, 539 U.S. at 574. Based on lessons of experience, the Supreme
Court has recognized:
We deal with a right of privacy older than the Bill of Rightsolder than our political
parties, older than our school system. Marriage is a coming together for better or for
worse, hopefully enduring, and intimate to the degree of being sacred. It is an association
that promotes a way of life, not causes; a harmony in living, not political faiths; a
bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a
purpose as any involved in our prior decisions.

Griswold v. Connecticut, 381 U.S. 479, 486 (1965). Although marriage and the right to marry a
person of one's choice has been a liberty right older than the Bill of Rights, rules and laws
pertaining to marriage have changed repeatedly since statehood in 1816 and will continue to do
so in the future. Ex. 8, p. 3. With regard to same-sex marriage, it is not the Constitution that
has changed, but the knowledge of what it means to be gay or lesbian. Consistent with our
Constitutional tradition of recognizing the liberty of those previously excluded [homosexuals]
possess a fundamental right to marry and to have their marriages recognized. Kitchen, 2014 WL
26

2868044 at 21 (quoting Kitchen v. Herbert, 961 F.Supp. 2d 1181, 1203 (D. Utah 2013)).
Therefore, Plaintiffs have a fundamental right to have their same-sex marriage recognized.
Notable societal changes in race, gender and divorce have caused courts and legislature
to further define the fundamental right to marry. Similarly, societal changes involving sex and
sexual identity presently have led this Court's sister districts to recognize that the fundamental
right to marry includes same-sex marriage.
A. Societal Shifts Recognize The Fundamental Right To Marry Includes The
Right To Marry Regardless Of Race

Despite recognizable societal changes, Defendants argue that "none of these societal
changeswhether one views them as good, bad or inconsequentialjustifies marriage for same-
sex couples. Defs. Opp. Br. [dkt. 26 at 52]. Defendants argue that the issue of same-sex
marriage has no comparison to race and there is no parallel to Loving v. Virginia. Defs. Opp. Br.
[dkt. 26 at 38]. Defendants claim that there was no ban against miscegenation at common law or
by statute when the American colonies were formed, whereas same-sex relationships were never
considered marriages "anywhere at any time until recently (in some jurisdictions)." Defs. Opp.
Br. [dkt. 26 at 40].
Historically, "centuries of racially-based restrictions on marriage choice, prohibiting
and/or criminalizing marriages between whites and persons of color, began in the colonial
Chesapeake region and then spread to most states, including the Defendant States." Ex. 8, at 5.
Indiana instituted one of the nations first bans on interracial marriage in 1818. Ex. 8 at 7.
Indiana's statutory definition of marriage at that time provided that a marriage was void: "when
one of the parties is a white person, and the other possessed of one-eighth or more of negro
blood...at the time of the marriage." State v. Gibson, 1871 WL 5021, at 10 (Ind. 1871)
(upholding the ban on interracial marriage and finding that "if the people of other states desire to
27

permit a corruption of bloodthey have the power to adopt such a policy."). The definition
stayed in effect until it was repealed in 1965, two years prior to the Supreme Court decision in
Loving. Ex. 8, at 7. Despite Defendants claims, Loving and the uninterrupted line of judicial
decisions involving race are directly analogous to the issue of same-sex marriage today.
Defendants refusal to recognize same-sex marriage is similar to Indiana's definition of marriage
prior to 1965unconstitutional.
In the landmark case of Brown v. Board of Education of Topeka, the Supreme Court
repudiated the separate-but-equal doctrine and found that segregation of children, solely on the
basis of race, deprived minority children equal opportunities under the Equal Protection and Due
Process Clause. 347 U.S. 483, 495 (1954). In reaching its decision, the Supreme Court renounced
its earlier precedent and stated, "In approaching this problem, we cannot turn the clock back to
1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written.
We must consider public education in the light of its full development and its present place in
American life throughout the Nation." Id. at 492-493. (emphasis added).
The Supreme Court, considering marriage and race in the light of its full development
and its present place in American life through the nation, struck down miscegenation statutes in
Loving. Loving, 388 U.S. at 9. Virginia argued that the Framers did not intend the Amendment
to make unconstitutional state miscegenation laws but the Supreme Court rejected Virginia's
"historical sources" as against the "letter and spirit of the Amendments." Id. at 9. Rather, the
Supreme Court ruled, "The freedom to marry has long been recognized as one of the vital
personal rights essential to the orderly pursuit of happiness by free men. Id. at 12. To deny that
right to marry the person of ones choice "is surely to deprive all the State's citizens of liberty
without due process of law." Id.; see also Zabolocki v. Redhail, 434 U.S. 374, 384 (1978)
28

(holding that "although Loving arose in the context of racial discrimination, prior and subsequent
decisions of this Court confirm that the right to marry is of fundamental importance for all
individuals.).
The Supreme Court reviewed a custody case involving race where a Caucasian mother
lost custody of her child because she had married an African American man. Palmore v. Sidoti,
466 U.S. 429, 424 (1984). The Supreme Court ruled that the reality of private biases and the
possible injury they might inflict are not permissible considerations for removal of an infant
child from a mixed-race family. Id. at 434. The Supreme Court noted that "the Constitution
cannot control such prejudices but neither can it tolerate them. Private biases may be outside the
reach of the law, but the law cannot, directly or indirectly, give them effect." Id. at 433. The
Supreme Court further noted, Public officials sworn to uphold the Constitution may not avoid a
constitutional duty by bowing to the hypothetical effects of private racial prejudice that they
assume to be both widely and deeply held. Id. (citing Palmer v. Thompson, 403 U.S. 217, 260
261 (1971) (White, J., dissenting)).
Similar to the Supreme Courts recognition that the fundamental right to marry has
always included the right to marry the person of ones choice without regard to race, the
fundamental right to marry includes the right to marry the person of ones choice without regard
to gender.
B. Societal Changes Acknowledge The Equality Between Genders In Marriage
Traditionally, marriage laws have treated men and women unequally and asymmetrically.
Ex. 8, at 5. Seen as "essential to marriage for centuries," this inequality was eliminated to
emphasize partnership rather than specific gender roles. Ex. 8, at 5. The line of judicial decisions
29

and abolishment of antiquated statutes involving gender are illustrative of how marriage has
changed and support the abolishment of the ban on same-sex marriage and recognition thereof.
Over the centuries, "legislative and judicial authorities in the states altered marriage rules
in ways not envisioned at the founding of the United States." Ex. 8, at 5. Due to the societal
changes over the course of the nineteenth century, legislators raised the age of marriage from the
traditional common law ages of twelve for females and fourteen for males to eighteen for both
sexes. Ex. 8, at 6. Additionally, "the doctrine of coverture (marital unity) gave the husband and
wife reciprocal responsibilities while treating them as a single unit and a wife ceded her legal and
economic identity to her husband and was covered by him." Ex. 8, at 5. The Indiana Supreme
Court illustrated Indiana's "traditional" definition of marriage when it said:
The legal existence of the woman was suspended, or merged in that of the husband....The
husband, by virtue of the marriage, was entitled to all the personal propertyof his wife,
which, when reduced to possession, became his absolute property, and was also entitled
to exclusive possession, use, and control of her real estate during their joint lives.

Henneger v. Lomas, 44 N.E.462, 463 (Ind. 1896). In 1847, Indiana legislators first granted
wives control over their premarital real property. Ex. 8, at 7.
Similar to all societal changes, the women's suffrage movement faced opposition from
those who argued tradition as a basis to oppose womens equal rights.
6
It was not until 1937 that
a wife was no longer considered property of her husband in the eyes of the law and by general
acceptance of society. See Pennington v. Steward, 10 N.E.2d 619, 622 (Ind. 1937).
Further, in the last fifty years, changes were rapid. In 1969, the Indiana Supreme Court
granted a married woman the right to recover damages for the loss of her husband's consortium
because she was seen as a companion rather than a servant. Troue v. Marker, 252 N.E.2d 800
6
Traditionalists argued that "Woman's suffrage would irrevocably undermine the family as it has been known for
millennia...and social stability itself depended on well-ordered families united in that purpose." George Chauncey,
Why Marriage? 68 (Basic Books 2004).
30

(Ind. 1969). In 1973 the Supreme Court decided that benefits given by the United States military
to the family of service members cannot be differently awarded based on gender. Frontiero, 411
U.S. at 691. It was not until 1977 that Indiana legislators rewrote the state's rape statute to
include as victims spouses who were living apart or one that had filed for divorce. Ex. 8 at 7.
Finally in 1998, Indiana abolished the exceptions altogether by mandating sex crimes between
spouses be treated like all other criminal offenses. Ex. 8, at 7. The Supreme Court struck down
a state statute which distinguished between the sexes and found that women also needed to
support their husbands. Orr v. Orr, 440 U.S. 268 (1979).
Similar to the societal changes recognizing the equality of genders, reliance on tradition
and history does not justify the Defendants refusal to recognize that the fundamental right of
marriage applies to same-sex marriage.
C. Societal Shifts Have Led To Changes in Divorce Laws

Indianas divorce laws have changed in response to shifts in society. During its inception
as a state, grounds for divorce were few in Indiana and one spouse was required to sue on the
basis of fault. Ex. 8, at 5. Changes in Indianas divorce laws are evident by:
After joining other states rejecting English tradition and making divorce a judicial
responsibility instead of a legislative one, the Hoosier State became Americas first
divorce mill in 1852 by adopting minimal residency requirements only to scrap that
policy in 1873 and then in 1972 become the third state in the union to adopt no-fault
divorce.

Ex. 8, at 7. It was not until the 1970s that child custody in Indiana was no longer determined by
gender as a presumption of maternal custody, but based on the best interests of the child. See In
re Marriage of Myers, 387 N.E.2d 1360 (Ind. 1979). As time passed and inequalities in gender
were struck down, dissolution statutes changed as well.
31

VI. DEFENDANTS JUSTIFICATIONS FOR ENFORCEMENT OF INDIANAS
ANTI-RECOGNITION STATUTE FAIL TO MEET EVEN RATIONAL BASIS
REVIEW

Defendants allege justifications for upholding Indiana's Anti-Recognition statute based
on the "traditional marriage" and "responsible procreation" grounds. Defs. Opp. Br. [dkt. 26 at
52]. Defendants describe marriage as "a 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." Defs. Opp. Br. [dkt. 26 at 55]. While Defendants have an interest in regulating
marriage, Indiana's Anti-Recognition statute infringes Plaintiffs fundamental right to marriage;
therefore, strict scrutiny applies. Zabloki, 434 U.S. at 388; Loving, 388 U.S. at 12; Baskin, 1:14-
cv-00355-RLY-TAB Dkt. 89 at 20; Kitchen, 2014 WL 2868044, at 21. Defendants may not
restrict Plaintiffs' fundamental rights unless the law is "narrowly tailored to serve a compelling
interest." Reno v. Flores, 507 U.S. 292, 302 (1993).
Although the awareness of homosexuality has grown, the animus remains. Defendants'
alleged justification for enforcement of Indiana's Anti-Recognition statute is based on "long
history and tradition" and "responsible procreation," but in reality it is nothing more than a guise
for the public and moral disapproval over same-sex relationships. Research, which includes a
subset of Indiana residents, shows that views regarding same-sex marriage are rooted primarily
in religious and moral disapproval. Ex. 9, at 6. Of Americans interviewed in Powells study,
65% of those opposed to same-sex marriage based their opposition on religious and moral
disapproval. Ex. 9, at 6. Whereas, fewer than 5% mentioned childbearing as a reason, while
even less than 1% stated a position even loosely related to Defendants' justification for
"responsible procreation." Ex. 9, at 6. Nationally, the General Social Survey from 2013
32

concluded that 90% of Americans who oppose same-sex marriage base their opposition on moral
and religious disapproval or animus. Ex. 9, at 7.
The asserted justifications for Indiana's Anti-Recognition statute are not narrowly tailored
to serve a compelling interest, let alone rationally related to a legitimate interest under rational
basis and, therefore, must be declared unconstitutional and the Defendants be enjoined from
enforcement.
A. Defendants Traditional Marriage Justification Fails Rational Basis
First, Defendants contend that "traditional marriage" has existed for "millennia" and
"preserving this traditional definition of marriage" serves a legitimate interest. Defs. Opp. Br.
[dkt. 26 at 38]. Although laws and tradition may be important in addressing the issue of same-
sex marriage, the Supreme Court has noted, [H]istory and tradition are the starting point but not
in all cases the ending point of the substantive due process inquiry. Lawrence, 539 U.S. at 571-
572 (citing County of Sacramento v. Lewis, 523 U.S. 833, 857 (1998)). Tradition alone cannot
provide a rational basis for a law. Bostic, 2014 WL 561978, at 15 (noting that tradition alone
cannot justify denying same-sex couples the right to marry any more than it could justify
Virginias ban on interracial marriage.).
Furthermore, Defendants' "traditional marriage" contention is misguided. Although
Defendants argue that "what it calls 'traditional marriage' has existed for millennia, there is broad
agreement among historians of marriage in the United States that the institution has changed
significantly over time to address changing social and ethical needs." Ex. 8, at 3; See also Wolf,
2014 WL 2558444 at 33 (finding that defendants overstated their argument that [t]he traditional
33

view of marriagebetween a man and woman ...has been recognized for millennia.")
7
; Henry
v. Himes, 2014 WL 1418395 at 11 (S.D. Ohio 2014) (in reviewing the defendants argument for
"preserving the traditional definition of marriage" the Court stated "vague, speculative, and/or
unsubstantiated state interests rise nowhere near the level necessary to counterbalance the
specific, quantifiable, particularized injuries suffered by same-sex couples when their existing
legal marriages and the attendant protections and benefits are denied to them by the state.");
Kitchen, 961 F.Supp.2d at 1214. (finding that the defendants interest in preserving its traditional
definition of marriage is not sufficient to survive rational basis review).
Historians have also found no basis for Defendants definition of traditional marriage in
either law or fact because changing to address social and ethical needs, rather than stasis, has
been the hallmark of marriage.
8
Ex. 8, at 4, 6-7. The "traditional view" of marriage in our State's
history has included discriminatory laws based on race and gender, of which it is doubtful
Defendants would wish to reinstate.
At one time, Indiana recognized common law marriage. In 1884, the Indiana Supreme
Court upheld the validity of marriage even if the parties had not followed all of the statutory
provisions. Ex. 8, at 6. Common law marriage was eventually abolished by statute in 1958
because the "policy ran afoul of changing judicial understandings of marriage in the early
twentieth century, particularly growing concern about common law marriage as a source of
marital uncertainty and family instability since informally created unions were difficult to
document when called into question than those formally solemnized." Ex. 8, at 6. It is also
7
The court noted that "throughout history, the most traditional form of marriage has not been between one man
and one woman, but between one man and multiple women." Wolf, 2014 WL 2558444 at 33 (citing Stephanie
Coontz, Marriage, a History 10 (2005)).

8
Also recognizing change, historians have found that "while marriage has changed throughout the centuries, it
retains its basis in voluntary and mutual consent, love and support and economic partnership." Ex. 8, at 6.
34

doubtful that Defendants would want to reinstate common law marriage. Indianas Anti-
Recognition statute creates a source of marital uncertainty, family instability, illegitimacy and
fraud which the abolishment of common law marriage was intended to prevent. Plaintiffs have
documented and legally solemnized marriages and they should be recognized as such.
The institution of marriage is not static and has "endured because it has been flexible,
open to adjustment by courts and legislatures in accord with changing standards." Ex. 8, at 6.
The Supreme Court, in addressing laws related to homosexual conduct, found, "Persons in a
homosexual relationship may seek autonomy for those purposes just as heterosexual persons do."
Lawrence, 539 U.S. at 574. See also Wolf, 2014 WL 2558444 at 37 (holding that if the state
respects the decision of heterosexual citizens to determine for themselves how to define
marriage, same-sex couples must get the same autonomy). In addressing the ban on same-sex
marriage, changes in recent history are more significant: "In all events we think that our laws and
traditions in the past half century are of most relevance here. These references show an emerging
awareness that liberty gives substantial protection to adult persons in deciding how to conduct
their private lives in matters pertaining to sex." Lawrence, 539 U.S. at 571-572.
Justice Scalia, dissenting in Lawrence, stated, Preserving the traditional institution of
marriage is just a kinder way of describing the States moral disapproval of same-sex couples.
539 U.S. at 602 (citation omitted) (emphasis in the original); See also Bowers v. Hardwick, 478
U.S. 186, 196 (1986) (Burger, J.) (noting that Decisions of individuals relating to homosexual
conduct have been subject to state intervention throughout the history of Western civilization.
Condemnation of those practices is firmly rooted in JudeoChristian moral and ethical
standards.); See Latta, 2014 WL 1909999 at 21 (holding that history demonstrates that moral
disapproval of homosexuality was an underlying, animating factor); Bourke v. Beshear, 2014
35

WL 556729 at 11 (W.D. Ky. 2014) (holding, "Assigning a religious or traditional rationale for a
law, does not make it constitutional when that law discriminates against a class of people without
other reason").
B. Defendants Procreation Justification Fails Rational Basis
Defendants argue that responsible procreation justifies Indianas Anti-Recognition
statute. Defs. Opp. Br. [dkt. 26 at 45]. As noted in Wolf, "a more recent twist on this argument
is that marriage is needed to help opposite-sex couples procreate responsibly. Wolf, 2014 WL
2558444 at 41 (quoting Morrison v. Sadler, 821 N.E.2d 15, 27 (Ind. Ct. App. 2005)). Marriage
has multiple purposes that advance the public good, whether or not children are present. Ex. 9, at
4. Indiana's Anti-Recognition statute lacks any compelling or legitimate basis and, in fact, has
several opposite effects.
Indiana's Anti-Recognition statute does not further the Defendants' stated goal because
[i]f responsible procreation is [Defendants] goal, there is no persuasive evidence that the
prohibition of same-sex marriage is implicated in reducing the likelihood of nonmarital
procreation. Ex. 9, at 5. In fact, births to unmarried women have increased. Ex. 9, at 5.
Studies have shown that "states that have permitted same-sex marriage (e.g., Massachusetts
[which legalized same-sex marriage in 2004], Vermont [2009] and Iowa [2009]) fare better (i.e.
lower percentages of nonmarital births and a less steep increase in nonmarital birth rates) on
average than do states that prohibit same-sex marriage." Ex. 9, at 5. Ironically, Indiana's rate of
non-marital births exceeds the national average. Ex. 9, at 5.
Indiana's Anti-Recognition statute also conflicts with Defendants interest in child
welfare.
9
Defendants claim that same-sex couples with children lack the need of government
9
Indiana's Family Law Code was codified to: (1) recognize the importance of family and children in our society;
(2) recognize the responsibility of the state to enhance the viability of children and family in our society; (3)
36

involvement because opposite-sex couples need marriage to stay together after procreation. Defs.
Opp. Br. [dkt. 26 at 45] (citing Morrison, 821 N.E.2d at 27). Social scientists and historians
alike generally agree that marriage confers important socio-emotional, economic, and other
advantages to its marital partners and their children, as well as increases family stability and
cultural legitimacy for family members. Ex. 8, at 4; Ex. 9, at 4. As Powell opined, "Since the
principle behind responsible procreation--and according to Defendants, the state interest in
promoting marriage--presumably is for children to live in a stable environment and to be
nurtured and raised by their parents (i.e. responsible childrearing), the continued ban on same-
sex marriage is inconsistent with the goal and state interest." Ex. 9, at 4.
Indiana's Anti-Recognition statute has the opposite effect on children of same-sex
couples as they are subjected to the precise disadvantages "responsible procreation" is intended
to prevent. Ex. 9, at 4-5. Specifically, according to the 2010 Census, there were 11,074 reported
same-sex couples in Indiana, 19% of which were raising children of one partner or spouse by
birth, marriage or adoption. Ex. 9, at 3. Thousands of children (which include Shannon and
Michelle's children) are harmed by not receiving any of the benefits accorded to children of
married opposite-sex couples. Ex. 9, at 3; Ex. 1 [dkt. 21-1 at 4, 15]; Ex. 2 [dkt. 21-2 at 4, 14];
See also Kitchen, 2014 WL 2868044, at 17 (holding laws banning same-sex marriage affect child
welfare by deny[ing] to the children of same-sex couples the recognition essential to stability,
predictability, and dignity.); Latta, 2014 WL 1909999 at 21, 24 (finding that the benefits of
marriage are equally advantageous for children and adolescents in families headed by same-sex
and different-sex couples and, although there is an interest in child welfare, limiting benefits and
fiscal resources toward naturally procreative relationships as optimal family structures was not
acknowledge the responsibility each person owes to the other; and (4) strengthen family life by assisting parents to
fulfill their parental obligations. Ind. Code 31-10-2-1. The ban is against Defendants' purpose for child welfare.
37

connected to this interest); Obergefell, 2013 WL 6726688, at 20 (holding there is no rational
connection between Ohios same-sex marriage recognition bans and the asserted goal of
responsible childrearing, given that Ohios ban does not prevent gay couples from having
children).
Indiana's Anti-Recognition statute is also irrational, as marriage is not conditioned on
procreation and child-rearing. See Turner v. Safley, 482 U.S. 78, 95-96 (1987) (holding Supreme
Court concluded that prisoners retained the right to marry despite inability to procreate);
Griswold, 381 U.S. at 485. Defendants provide absolutely no evidence that allowing same-sex
marriages will have any effect on when, how, or why opposite-sex couples choose to marry. See
Kitchen, 2014 WL 2868044 at 23 (quoting Bostic v. Rainey, 970 F.Supp.2d 456, 478479 (E.D.
Va. 2014) (finding no evidence authorizing same-sex marriages will result in the marriages of
fewer opposite-sex couples for the purpose of procreating, and the procreation rationale
threaten[s] the legitimacy of marriages involving post-menopausal women, infertile individuals,
and individuals who choose to refrain from procreating.)); Bishop, 962 F.Supp.2d. at 1291; De
Leon, 975 F.Supp.2d at 655; Latta, 2014 WL 1909999 at 23. The rationale is unfounded and has
no link to encouraging the goal of "responsible procreation." Baskin, 1:14-cv-00355-RLY-TAB
Dkt. 89 at 28.
Despite Defendants' claim that the justification for Indiana's Anti-Recognition statute is
not predicated on animus, the animus is clearly evident. In addressing the same-sex marriage
ban as it relates to married opposite-sex individuals who have not chosen to procreate or are
infertile, Defendants state the ban is justified because they "model the optimal ordering of family
life." Defs. Opp. Br. [dkt. 26 at 47].
38

Additionally, there is no evidence that prohibiting same-sex marriage encourages
expecting opposite-sex couples to marry or results in marriages or stable home environments for
children. Ex. 9, at 5; See also Turner, 482 U.S. at 95-96; Bishop, 962 F.Supp.2d at 1291; Geiger
v. Kitzhaber, 2014 WL 2054264, at 13 (D. Or. 2014). If the rationale of Indiana's Anti-
Recognition statute is to increase the likelihood that sexual partners will live in a long term
committed relationship for the sake of any children they may produce, even unintentionally, then
there is no connection or basis.
Further, Defendants' argument for "responsible procreation" neglects to consider several
important attributes of marriage that exist besides procreation. See Wolf, 2014 WL 2558444 at 13
(finding that although "the Supreme Court has identified procreation as a reason for marriage, it
has never described procreation as a requirement, therefore, the argument that procreation is the
sole reason marriage is protected by the Constitution is misguided.) (emphasis original).
Historians of marriage and family have found that:
Marriage has served numerous purposes during the nation's history and has been
instrumental in: facilitating governance, in creating stable households, leading to public
order and economic benefit, in assigning providers to care for dependents (minors,
elderly and disabled), in legitimating children, in facilitating property ownership and
inheritance and composing the body politic.

Ex. 8, at 4; See Latta, 2014 WL 1909999 at 24; Wolf, 2014 WL 2558444 at 37. As Professor
Grossberg noted, "Only a highly reductive interpretation would posit that the defining
characteristic of marriage is procreation or care of biological children, since states' interests in
marriage are more complex." Ex. 8, at 4. In sum, Indiana's Anti-Recognition statute is not
predicated on any compelling or legitimate concerns:
Excluding same-sex couples from the right to marry stands at odds with the direction of
historical change in marriage in the United States and in Indiana. Most significantly,
over time courts and legislatures have moved to eliminate discriminatory restrictions on
the freedom to marry chosen partners. Contemporary public policy assumes that marriage
39

is a public good. Excluding some citizens from the power to marry, or marking some as
unfit on the basis of their marriage choices, does not accord with public policy regarding
the benefit of marriage or the rights of citizens.

Ex. 8, at 7-8. As stated in Kitchen, because "[p]laintiffs are able to develop a committed,
intimate relationship with a person of the same-sex but not with a person of the opposite-
sex...[t]he court, and the State, must adapt to this changed understanding." Kitchen, 961
F.Supp.2d at 1203, affirmed, 2014 WL 2868044 (10th Cir. 2014).
Indiana's Anti-Recognition statute infringes upon Plaintiffs fundamental rights;
therefore, strict scrutiny applies. However, Defendants fail to provide even a rational basis for
the Indianas Anti-Recognition statute. As such, Indianas Anti-Recognition statute must be
declared unconstitutional and the Defendants be enjoined from enforcement.
VII. INDIANAS ANTI-RECOGNITION STATUTE DENIES PLAINTIFFS
CONSTITUTIONAL RIGHT OF ACCESS TO COURTS

The Constitution guarantees access to the courts. Defendants argue that there is no reason
for this Court to even begin to consider whether there has been an open-courts violation because
Linda's petition is still pending before the Indiana courts. Defs. Opp. Br. [dkt. 26 at 61].
Defendants also argue that Linda should be foreclosed from having the Court consider her case
on its merits because: (1) she has waived her substantive due process claim; (2) that not all
Plaintiffs have standing
10
, (3) that there is no relief under Article III
11
; (4) the "domestic relations
exception" prevents this Court from issuing a dissolution decree; (5) and Linda is not harmed
because divorce is reasonably available in jurisdictions where same-sex marriage is valid. All of
the Defendants' arguments fail.
10
Plaintiffs only argue that Defendants enforcement of Indianas Anti-Recognition statute denies Lindas right to
access of the court.
11
Plaintiffs address this argument in Section I.
40

Prior to the filing of this lawsuit, Linda filed a Praecipe for Final Hearing on April 2,
2014 and the Marion Superior Court, declining to set the matter for Final Hearing, set the matter
for a Status Conference on June 6, 2014. Ex. 7 at 7-8. At the Status Conference, both Linda
and her wife, Lori Roberts, asked that the Marion Superior Court proceed to a final hearing at
that time and grant a dissolution of marriage. Ex. 7 at 9. The Marion Superior court denied
their request. Ex. 7 at 9. Instead, the Marion Superior Court, sua sponte, dismissed the action
finding that the Marion Superior Court lacks subject matter jurisdiction because of Indianas
Anti-Recognition statute. Ex. 7 at 10. On June 11, 2014, Linda filed a Motion to Correct Errors
with the trial court. Ex. 7 at 11. On June 17, 2014, the Motion to Correct Errors was denied.
Ex. 7 at 12. Linda plans to timely file her Notice of Appeal with the Indiana Court of Appeals.
Ex. 7 at 13.
Linda has not waived any claim that her substantive due process rights have been violated
based on a denial of access to the courts. Access to the Courts is a fundamental right that is
rooted in the Due Process Clause of the Fourteenth Amendment. Boddie v. Connecticut, 401
U.S. 371, 380-381 (1971). In paragraph 55 of Plaintiffs' Complaint it is specifically stated, "By
denying access to the Courts, same-sex couples have no redress..." to seek a divorce. Compl.
[dkt. 1 at 12, 55] (emphasis added). Paragraphs 55-58 reference the due process harms a
denial of access to courts create, as well as direct citation to the landmark case of Boddie v.
Connecticut. Compl. [dkt. 1 at 12-13, 55-58]. Because the Complaint addresses Linda's
denial of access to the courts and the resulting harms, this issue is properly before the Court.
Furthermore, Plaintiffs' Complaint complies with the Federal Rules of Civil Procedure.
Federal Rule of Civil Procedure 8 only requires a short and plain statement of the claim
showing that the pleader is entitled to relief. Fed. Rule Civ. Pro. 8(a)(2). The Supreme Court
41

has long held that a complaint is sufficient to withstand waiver on an issue if it "will give the
defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests. Conley
v. Gibson, 355 U.S. 41, 47 (1957); Snyder v. Smith, 2014 WL 1153142, at 5 (S.D. Ind. 2014).
Moreover, the Supreme Court has rejected requirements to plead with greater factual specificity
for 1983 suits. Leatherman v. Tarrant County, 507 U.S. 163, 168 (1993). Because Linda has
sufficiently plead her 1983 access to the courts claim, this issue is properly before the Court.
The domestic relations exception is not applicable to this case and this Court is not
required to abstain from decision. Defendants misstate Lindas claim and argue that Linda is
requesting that this Court grant a dissolution of marriage. However, Linda is not asking this
Court to issue a decree of dissolution, but rather, she is requesting this Court to find Indianas
Anti-Recognition statute unconstitutional which is her only bar to have access to Indianas state
courts to obtain a dissolution of marriage. Ex. 7 at 10. The Supreme Court made clear that the
domestic relation exception encompasses only cases involving the issuance of a divorce,
alimony, or child custody decree. Ankenbrandt v. Richards, 504 U.S. 689, 704 (1992). Similar
to the Plaintiffs in Ankenbrandt [t]his lawsuit in no way seeks such a decree. Id.
The Marion Superior Courts dismissal of Lindas dissolution action in reliance upon
Indianas Anti-Recognition statute is an outright closure to the courts in violation of her Due
Process and Indiana constitutional rights. U.S. Const. amend. XIV, 1; Ind. Const. Art. I, 12.
Defendants' claim that Linda can "reasonably" obtain a divorce in another jurisdiction is
preposterous. Defs. Opp. Br. [dkt. 26 at 55]. Linda is a resident of Indiana. Pls. Ex. 3 [dkt. 21-
3 at 2, 2]. As the Supreme Court has noted, a state court can entertain petitions for divorce
only if one of party is domiciled in that state. Williams v. North Carolina, 325 U.S. 226, 229
(1945). In order to obtain a divorce, Linda would have to leave her home and employment to
42

relocate to another state. Pls. Ex. 3 [dkt. 21-3 at 3, 11]. Linda would also have to first
establish residency in that state before being eligible to file for a divorce.
12
This hardship is by
no means reasonable.
Furthermore, Defendants contend while same-sex couples may not be able to divide
their property by way of a formal divorce decree, Indiana courts may nonetheless equitably
divide property acquired during the relationship if one of the parties requests such action. Def.
Opp. Br. [dkt. 26 at 61] (quoting In re Marriage of Thomas, 794 N.E.2d 500, 503-504 (Ind. Ct.
App. 2003)). However, an equitable division of property that has been acquired during the
relationship is not the equivalent to a dissolution of marriage. In a dissolution of marriage the
court divides all property, not just the property that was acquired during the marriage. Ind. Code
31-15-7-5.
Lastly, Defendants also contend that a spouse of a same-sex marriage may also seek to
have a marriage voided. See Sclamberg v. Sclamberg, 41 N.E.2d 801 (Ind. 1942). Although
there are irreconcilable differences between Linda and her wife, the Defendants' suggestion that
Linda void her marriage is offensive at best. As stated in Windsor, it would tell her, and the
entire world, that her marriage is unworthy of recognition which is demeaning and treats Linda
as second-class citizen. 133 S.Ct. at 2694.
Indianas Anti-Recognition statute should be declared unconstitutional by this Court as it
denies Lindas due process right to access to the courts.

12
Iowa, where Linda was married, requires that an individual be a resident of the state prior to granting a dissolution
of marriage. Iowa Code 598.5.

43

CONCLUSION
This Court should find that Indianas Anti-Recognition statute is unconstitutional. As
such, this Court should enjoin the Defendants from enforcing Indianas Anti-Recognition statute
and the laws, policies, and regulations based thereon.

Respectfully submitted,

/s/ Richard A. Mann
Richard A. Mann, Atty. No. 9864-49

/s/ Lisa M. Joachim
Lisa M. Joachim, Atty. No. 25322-45

/s/ Jennifer R. Mann
Jennifer R. Mann, Atty. No. 28163-49

/s/ Todd D. Small
Todd D. Small, Atty. No. 28783-49

/s/ Megan L. Clearwaters
Megan L. Clearwaters, Atty. No. 30564-49
RICHARD A. MANN, P.C.
3750 Kentucky Avenue
Indianapolis, Indiana 46221
Telephone: (317) 388-5600
Facsimile: (317) 388-5622
RMann@RichardMann-LawOffice.com
LJoachim@RichardMann-LawOffice.com
JMann@MannLaw.us
TSmall@RichardMann-LawOffice.com
MClearwaters@MannLaw.us

Attorneys for Plaintiffs

44


CERTIFICATE OF SERVICE

I hereby certify that on June 26, 2014, a copy of the foregoing Plaintiffs' Response in
Opposition to Defendants' Motion for Summary Judgment and Reply Brief in Support of
Plaintiffs' Motion for Summary Judgment was filed electronically. Service of this filling will be
made on all ECF-registered counsel by operation of the courts electronic filing system. Parties
may access this filing through the courts system.

I further certify that on June 26, 2014, a copy of the foregoing Plaintiffs' Response in
Opposition to Defendants' Motion for Summary Judgment and Reply Brief in Support of
Plaintiffs' Motion for Summary Judgment was mailed, by first-class U.S. Mail, postage prepaid
and properly addressed to the following:

NONE

/s/ Richard A. Mann
Richard A. Mann
Attorney at Law

45


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