14-2386 #35

IN THE
UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Nos. 14-2386, 14-2387, and 14-2388

MARILYN RAE BASKIN, et al.,
Plaintiffs/Appellees,

v.

PENNY BOGAN, in her official capacity as Boone County Clerk, et al.,
Defendants/Appellants.

On Appeal from the United States District Court for the
Southern District of Indiana, Nos. 1:14-cv-355-RLY-TAB,
1:14-cv-404-RLY-TAB, and 1:14-cv-406-RLY-MJD
The Honorable Richard L. Young, Chief Judge

APPELLANTS APPENDIX

ROBERT V. CLUTTER
Kirtley, Taylor, Sims, Chadd &
Minnette, P.C.
117 W. Main Street
Lebanon, IN 46052
(765) 483-8549
bclutter@kirtleytaylorlaw.com
Counsel for the Boone County Clerk

THOMAS ALAN HARDIN
Shine & Hardin LLP
2810 Beaver Ave.
Fort Wayne, IN 46807
Tel: (219) 745-1970
Fax: (219) 744-5411
thardin@shineandhardin.com
Counsel for the Allen County Clerk

GREGORY F. ZOELLER
Attorney General of Indiana
THOMAS M. FISHER
Solicitor General
Office of the Attorney General
IGC South, Fifth Floor
302 W. Washington Street
Indianapolis, IN 46204
(317) 232-6255
Tom.Fisher@atg.in.gov
Counsel for State Appellants

Case: 14-2386 Document: 35 Filed: 07/15/2014 Pages: 115
APPENDIX
Pursuant to Circuit Rule 30, Appellants submit the following as their
Appendix. Appellants Appendix contains all of the materials required under
Circuit Rule 30(b).
s/Thomas M. Fisher
Thomas M. Fisher
Solicitor General


TABLE OF CONTENTS

First Amended Complaint for Declaratory and Injunctive Relief, Baskin v.
Bogan, No. 1:14-cv-355-RLY-TAB ........................................................................... 1
Amended Complaint for Declaratory and Injunctive Relief, Fujii v.
Commissioner, No. 1:14-cv-404-RLY-TAB ............................................................ 36
Amended Complaint for Declaratory and Injunctive Relief, Lee v. Abbott,
No. 1:14-cv-406-RLY-MJD ..................................................................................... 61
Entry on Plaintiffs Motion for a Temporary Restraining Order ............................... 78
Excerpt from Transcript of Hearing on Plaintiffs Motion for Preliminary
Injunction and Summary Judgment Oral Argument (pages 60-63) .................... 89
Entry on Plaintiffs Motion for a Preliminary Injunction .......................................... 97


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA

MARILYN RAE BASKIN and ESTHER
FULLER; BONNIE EVERLY and LINDA
JUDKINS; DAWN CARVER and PAMELA
EANES; HENRY GREENE and GLENN
FUNKHOUSER, individually and as parents
and next friends of C.A.G.; NIKOLE
QUASNEY and AMY SANDLER,
individually and as parents and next friends of
A.Q.-S. and M.Q.-S.,

Plaintiffs,

v.

PENNY BOGAN, in her official capacity as
BOONE COUNTY CLERK; KAREN M.
MARTIN, in her official capacity as
PORTER COUNTY CLERK; MICHAEL
A. BROWN, in his official capacity as LAKE
COUNTY CLERK; PEGGY BEAVER, in her
official capacity as HAMILTON COUNTY
CLERK; WILLIAM C. VANNESS II, M.D.,
in his official capacity as the
COMMISSIONER, INDIANA STATE
DEPARTMENT OF HEALTH; and GREG
ZOELLER, in his official capacity as
INDIANA ATTORNEY GENERAL,

Defendants.
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Civil Action No.:
1:14-cv-00355-RLY-TAB

FIRST AMENDED COMPLAINT
FOR DECLARATORY AND INJUNCTIVE RELIEF
Plaintiffs Marilyn Rae Baskin and Esther Fuller, Bonnie Everly and Linda Judkins, Dawn
Carver and Pamela Eanes, Henry Greene and Glenn Funkhouser, individually and as parents and
next friends of C.A.G., and Nikole Quasney and Amy Sandler, individually and as parents and
next friends of A.Q.-S. and M.Q.-S. (collectively Plaintiffs), by and through their attorneys,
file this First Amended Complaint against Defendants Boone County Clerk Penny Bogan, Porter
County Clerk Karen M. Martin, Lake County Clerk Michael A. Brown, Hamilton County Clerk
Case 1:14-cv-00355-RLY-TAB Document 30 Filed 03/31/14 Page 1 of 35 PageID #: 87
APPELLANTS' APPENDIX 1

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Peggy Beaver, Indiana State Department of Health Commissioner VanNess, and Indiana
Attorney General Greg Zoeller (collectively Defendants), and allege as follows:
INTRODUCTION
1. Plaintiffs, all Indiana residents, comprise five loving, committed same-sex
couples (adult Plaintiffs or Plaintiff couples) and three minor children of two of the couples.
All Plaintiffs bring this action pursuant to 42 U.S.C. 1983 seeking declaratory and preliminary
and permanent injunctive relief for Defendants violation of Plaintiffs rights the guarantees
of liberty and equal protection under the Fourteenth Amendment to the United States
Constitution caused by the discriminatory exclusion of same-sex couples from the freedom to
marry and the discriminatory denial of recognition of marriages lawfully entered by same-sex
couples in other jurisdictions pursuant to the laws of the State of Indiana (State). See Indiana
Code 31-11-1-1.
2. Marriage plays a unique role in society as the universally recognized and
celebrated hallmark of a couples commitment to build family life together. It confers upon
couples a dignity and status of immense import. The adult Plaintiffs have formed committed,
enduring bonds equally worthy of the respect afforded by the State to different-sex couples
through marriage. Yet, the State, without any adequate justification, has enacted, interpreted,
and enforced its laws in ways that single out lesbian and gay couples in Indiana by excluding
them from the freedom to marry and by refusing to recognize and respect lawful marriages from
other jurisdictions, based solely on their sexual orientation and their sex.
3. Through Defendants adherence to and enforcement of Indiana Code Section 31-
11-1-1 and their interpretation and enforcement of the States other laws to preclude same-sex
couples from marrying or having their marriages lawfully entered into other jurisdictions
recognized in Indiana, the State and Defendants send a message that lesbians, gay men, and their

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children are second-class citizens who are undeserving of the legal sanction, respect, protections,
and support that different-sex couples and their children receive automatically through marriage.
This discrimination (referred to herein as the States marriage ban) is established in the States
statutes, which prevent same sex couples from entering into a civil marriage in the State and
prohibits the State from honoring a civil marriage validly entered by a same-sex couple in
another jurisdiction.
4. The marriage ban inflicts serious and irreparable harm on same-sex couples and
their children. Plaintiffs Marilyn Rae (Rae) Baskin and Esther Fuller, Bonnie Everly and
Linda (Lyn) Judkins, Dawn Carver and Pamela (Pam) Eanes, and Henry Greene and Glenn
Funkhouser are not married. They seek the freedom to marry the one unique and irreplaceable
person each loves, and thereby to assume the responsibilities and obtain the myriad protections,
obligations, and benefits conferred upon married couples under state and federal law. Plaintiffs
Nikole Quasney and Amy Sandler married in another jurisdiction, but are treated as legal
strangers in the state they call home a hurtful invalidation of their relationship, which deprives
them of the protections that a legally-recognized marriage most securely provides. Plaintiffs
C.A.G., A.Q.-S., and M.Q.-S. (child Plaintiffs) seek the protections, security, support, and
benefits conferred upon the children of married parents, and to end the stigma, shame, and
humiliation imposed upon children of lesbian and gay parents by the laws refusal to permit them
to belong to families with married parents and designation of their families as inferior to others
and unworthy of marriage.
5. The right to marry the person of ones choice and to direct the course of ones life
in this intimate realm without undue government interference is one of the fundamental liberty
interests protected for all by the Due Process Clause of the Fourteenth Amendment to the United

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States Constitution. The States exclusion of the Plaintiff couples and other same-sex couples
from marriage violates their fundamental right to marry. The State also interferes with the
constitutionally protected liberty and privacy interest in familial association and integrity of the
child Plaintiffs and other children of same-sex couples without any compelling, important, or
even legitimate justification.
6. The State also has deprived Plaintiffs of their guarantee of equality under the
Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by
denying Plaintiff couples and other lesbian and gay Indiana residents the right to marry the
person of their choice based solely on their sexual orientation and sex. Likewise, the State
denies the child Plaintiffs and other children of same-sex couples equal access to dignity,
legitimacy, protections, benefits, support, and security conferred on children of married parents
under state and federal law. The marriage ban penalizes the Plaintiff couples self-determination
in the most intimate sphere of their lives. The United States Supreme Court has stated that
marriage is the most important relation in life, as well as an expression of emotional support and
public commitment, and a far-reaching legal acknowledgement of the intimate relationship
between two people. The marriage ban deprives Plaintiff couples and other same-sex couples of
dignity, and humiliates children of same-sex couples by branding their families as inferior and
unworthy of the legitimacy, recognition, and respect accorded to other families.
7. Because the freedom to marry is one of the vital personal rights essential to the
orderly pursuit of happiness by free men and women, adult Plaintiffs seek equal access to the
freedom to marry for same-sex couples and recognition of legal marriages performed in other
states as the only means to secure their rights to due process and equal protection of the law, and

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to eliminate the myriad serious harms inflicted on Plaintiffs by the marriage ban and Defendants
enforcement of it.
JURISDICTION AND VENUE
8. Plaintiffs bring this action under 42 U.S.C. 1983 and 1988 to redress the
deprivation under color of state law of rights secured by the United States Constitution.
9. This Court has original jurisdiction over the subject matter of this action pursuant
to 28 U.S.C. 1331 and 1343 because the matters in controversy arise under the Constitution
and laws of the United States.
10. This Court has the authority to enter a declaratory judgment and to provide
preliminary and permanent injunctive relief pursuant to Rules 57 and 65 of the Federal Rules of
Civil Procedure and 28 U.S.C. 2201 and 2202.
11. This Court has personal jurisdiction over Defendants because they are domiciled
in the State and/or have otherwise made and established contacts with the State sufficient to
permit the exercise of personal jurisdiction over them.
12. Venue is proper in this district under 28 U.S.C. 1391(b) because all Defendants
reside within the State of Indiana, Defendant Boone County Clerk Penny Bogan, Defendant
Hamilton County Clerk Peggy Beaver, Defendant VanNess, and Defendant Greg Zoeller reside
and have offices within the district, and/or because a substantial part of the events that gave rise
to Plaintiffs Rae Baskin, Esther Fuller, Henry Greene, Glenn Funkhouser, and C.A.G.s claims
occurred, and will occur, in this district.

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PARTIES
A. Plaintiffs
Rae Baskin and Esther Fuller
13. Plaintiffs RAE, 60, and ESTHER, 78, are a lesbian couple living in Whitestown,
Boone County, Indiana, within the Indianapolis Division of the Southern District of
Indiana. Rae and Esther have been in a loving and committed relationship for nearly twenty-four
years. Rae and Esther would marry in Indiana but for the marriage ban.
14. Esther was born in Indianapolis, Indiana and has lived in Indiana her whole life,
except for a year attending college in Missouri. Rae has been a resident of Indiana for twenty-
four years. Esther holds a degree from Purdue University Krannert School of Management,
worked as a pharmacist for many years, and is currently retired. Rae graduated from Syracuse
University in 1975, where she majored in Poverty & Urban Affairs, and New York Law School
in 1978. After graduating from law school, Rae owned her own company for twenty years.
15. The marriage ban frustrates Rae and Esthers dream of being able to marry. Rae
wishes to marry Esther because absent marriage, their relationship is viewed as having less
dignity and legitimacy by the State and in the eyes of others. Esther wants to ensure that Rae is
protected and secure, even if Esther should pass away, and that Rae receives spousal protections
including Social Security benefits for surviving spouses. Esther had breast cancer in 2008 and
broke her hip in 2009. Regarding Esther, Rae said Shes the worlds biggest mush, she loves
me unconditionally, and . . . I cant imagine life without her.
Bonnie Everly and Lyn J udkins
16. Plaintiffs BONNIE, 56, and LYN, 58, are a lesbian couple living in Chesterton,
Porter County, Indiana. Bonnie and Lyn have been in a loving and committed relationship for
more than thirteen years. Bonnie and Lyn would marry in Indiana but for the marriage ban.

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17. Bonnie was born in Gary, Indiana, and raised in Michigan City, Indiana. Bonnie
and Lyn are both divorced from prior marriages they entered into long ago before they were able
to acknowledge their sexual orientation to themselves or others. Bonnie and Lyn each have a
child, and they live with Bonnies son, David, age twenty-one. David is supportive of their
relationship. Bonnie was employed at a factory where she operated machines and later became
an independent driver for the news dispatch in Michigan City, Indiana. Lyn was a secretary and
a school bus driver. In 2002, Bonnie and Lyn were struck by a drunk driver and both suffer from
mobility-related disabilities.
18. The marriage ban frustrates Bonnies and Lyns dreams of being able to
marry. Unable to marry in Indiana, Bonnie and Lyn held a private religious ceremony on a
beach in Michigan City in April 2002. Lyn describes Bonnie as her rock and
security. [Bonnie] keeps me laughing and she is the reason I get up in the morning. To be
able to be legally wed to her would be a dream come true. I would do anything for
Bonnie. Bonnie describes Lyn as a breath of fresh air. [Lyn] is what keeps me going. I
want to make her my wife because Ive never had that feeling for anyone else. I want to make
my life complete by putting a ring on her finger knowing it will be there forever.
Dawn Carver and Pam Eanes
19. Plaintiffs DAWN, 41, and PAM, 50, are a lesbian couple living in Munster, Lake
County, Indiana. They have been in a loving and committed relationship for seventeen years.
Dawn and Pam would marry in Indiana but for the marriage ban.
20. Dawn was born in Griffith, Indiana and has lived in Indiana most of her life.
Dawn is a patrol officer for the Oak Park Police Department and has worked there for ten years.
Pam is a Captain in the Calumet City Fire Department and has worked there for twenty-six

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years. Pam and Dawn are active in their local community. Pam has two children from prior
relationships, and both children view both Pam and Dawn as their mothers. The children are
supportive of their relationship.
21. The marriage ban frustrates Pam and Dawns dream of being able to marry. Pam
and Dawn have an Illinois Civil Union. But this civil union is not recognized in Indiana.
Because Indianas marriage ban has prevented them from marrying, they are not fully protected
in the event that either of them is seriously injured from the inherent dangers of their work.
22. Pam and Dawn want to express the love and commitment to each other that only
marriage can convey. They want to grow old with one another; they mean everything to each
other. Pam states, Dawn is everything to me, shes my world, shes my best friend, shes my
partner, shes my confidante, shes my everything. My life is so much better because I have
Dawn in it, I really look forward to going into old age together.
Henry Greene and Glenn Funkhouser with minor son, C.A.G.
23. Plaintiffs HENRY, 48, and GLENN, 51, are a gay male couple living in Carmel,
Hamilton County, Indiana, within the Indianapolis Division of the Southern District of Indiana.
Henry and Glenn have been in a committed relationship for twenty-two years. Henry and Glenn
would marry in Indiana but for the marriage ban.
24. Glenn was born and raised in Indiana and moved back to his home state to be
closer to family in 2001. Henry and Glenn have lived together in Indiana for almost thirteen
years, and consider Indiana their home. Henry has four years of college training in computer
science and works as a project manager. Glenn holds a Bachelors Degree in Business
Management and Personnel Administration & Management Information Systems from Ball State
University. Glenn works as an account manager.

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25. Henry and Glenn have a twelve year old-son, Plaintiff C.A.G. Henry adopted
C.A.G. initially and Glenn later obtained a second parent adoption to establish a legal parent-
child relationship with their son. They are very involved in their sons school and in their
church. Because of the marriage ban, Henry and Glenn fear that their son will internalize the
message he receives from his government that his family is not as worthy as others, and that he
will face discrimination because his family is deemed less legitimate, and less deserving of
respect by the State.
26. The marriage ban frustrates Henry and Glenns dream of being married. Henry
says that he cant imagine his life without Glenn. Glenn says that he and Henry are partners
in life, and that they knew they could give [their son] a better life, a second chance. The
marriage ban interferes with their ability to protect their son and help him to grow up with
dignity and pride in his family, makes Henry and Glenns family status and financial security
uncertain, and causes them stress and anxiety.
Nikole (Niki) Quasney and Amy Sandler with minor daughters, A.Q.-S. and M.Q.-S.
27. Plaintiffs NIKI, 37, and AMY, 37, are a lesbian couple living in Munster, Lake
County, Indiana. They have been in a loving and committed relationship for over thirteen years.
Niki and Amy were married in the Commonwealth of Massachusetts on August 29, 2013.
28. Niki was born in East Chicago, Indiana, and raised in Munster, Indiana. Niki and
Amy own a home in Indiana, where they are raising their two minor daughters, Plaintiffs A.Q.-S.
(age 2) and M.Q.-S. (age 1), who were conceived through assisted reproductive technology and
an anonymous donor. After Amy gave birth to A.Q.-S., Niki and Amy were required to incur the
cost and expense of obtaining a second parent adoption to establish a legal parent-child
relationship between Niki and A.Q.-S. Amy and Niki secured an Illinois civil union on June 7,

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2011. When Amy gave birth to their second daughter, M.Q.-S., even though they then were
living in Indiana, Amy and Niki selected a hospital in Illinois so that they could give birth in a
state that would respect Nikis parental relationship to M.Q.-S. from birth and accordingly issue
her a two-parent birth certificate in reliance on their Illinois civil union. Amy and Niki
performed a second parent adoption for M.Q.-S as well, to ensure that Nikis parent-child
relationship would be secure in Indiana.
29. Niki holds a Bachelor of Science in Restaurant Hotel Institutional Tourism
Management from Purdue University, West Lafayette, and a Bachelor of Arts degree in
Education from the University of Missouri at St. Louis. Niki worked for several years as a
physical education teacher in Nevada. Amy holds a Bachelor of Arts degree in Journalism and
Master of Arts degree in Counseling and Personnel Services from the University of Maryland.
Amy also holds a Ph. D. in Educational Leadership from the University of Nevada, Las Vegas.
Amy has worked as an adjunct professor and is currently pursuing a Master of Arts degree in
Social Service Administration from the University of Chicago, to which she commutes for
classes from the familys home in Indiana. After Amy obtains her degree, she would prefer to
seek licensure and employment in Indiana to be close to Niki. However, because school districts
in Indiana will not recognize Amys marriage to Niki for the purpose of providing Amy with
spousal health insurance, Amy must seek a job in Illinois.
30. Nikis family history put her at high risk for breast and ovarian cancer. In 2007,
Niki made the difficult decision to proceed with a prophylactic double mastectomy after two
siblings developed breast cancer. Despite her best effort to manage her cancer risk, Niki was
diagnosed with Stage IV ovarian cancer in June 2009, which required surgery days later to
remove more than 100 tumors in her abdominal cavity and on critical organs, such as her liver,

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kidneys, and bladder, and which required removal of her entire omentum. At the time of Nikis
diagnosis almost five years ago, the physician who performed her surgery informed her that the
median survival rate for her cancer is five years.
31. Since her diagnosis in 2009, Niki has undergone three surgeries, countless
hospital visits and aggressive chemotherapy treatment, including her most recent six-cycle
course of chemotherapy (11 infusions) over the last few months. The States refusal to recognize
Nikis marriage to Amy encourages and invites private bias and discrimination, including in
medical settings. Niki and Amy fear that their marriage will not be respected in Indiana, and that
medical personnel may treat them as legal strangers to each other. For example, when Niki and
Amy attempted to obtain a family membership with a fitness center operated by a local hospital,
the hospital denied them such a membership on the ground that the hospitals definition of
spouse matches the state of Indianas definition of marriage. Even though this hospital is
approximately two miles from where Niki, Amy, and their daughters live, Niki chooses not to go
to this hospital for regular chemotherapy treatments or even certain emergency care because the
hospital may not respect her legal relationship to Amy. Instead, Niki travels to Chicago.
Recently, when Niki experienced chest pain, she traveled 40 minutes to the University of
Chicago Medical Center for treatment for what was later identified as a pulmonary embolism.
Thus, the States refusal to recognize her marriage impedes her ability to secure emergency care
or treatment from her local community hospital. Niki also fears that when she passes away, the
States refusal to recognize Amy as a spouse on her death certificate will adversely affect her
familys ability to secure insurance, and access federal and state protections and safety nets, such
as Social Security benefits available to surviving spouses. Because Amy and Niki have two

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young children, and Niki continues to suffer from terminal ovarian cancer, their need to have
their marriage recognized by Indiana is urgent.
32. Niki describes Amy as her rock saying, she is the most amazing person I have
ever met and an amazing role model for their two daughters. Amy says Niki is the most
kind and generous person and that she picks up where I leave off. Amy loves Niki and will
forever be grateful for every moment [their] kids have with herand that I have with her.
B. Defendants
33. DEFENDANT PENNY BOGAN is sued in her official capacity as the Boone
County Clerk. Bogans duties include accepting marriage applications, issuing marriage
licenses, and maintaining records relating to marriage licenses. Bogan must ensure compliance
through all of these functions with relevant Indiana laws, including those that exclude same-sex
couples from marriage, and forbid the filing of records relating to marriages of same-sex couples
that take place in other states. Bogan is a person within the meaning of 42 U.S.C. 1983 and
was acting under color of state law at all times relevant to this complaint.
34. DEFENDANT KAREN M. MARTIN is sued in her official capacity as the Porter
County Clerk. Martins duties include accepting marriage applications, issuing marriage
licenses, and maintaining records relating to marriage licenses. Martin must ensure compliance
that take place in other states. Martin is a person within the meaning of 42 U.S.C. 1983 and
35. DEFENDANT MICHAEL A. BROWN is sued in his official capacity as the Lake
County Clerk. Browns duties include accepting marriage applications, issuing marriage
licenses, and maintaining records relating to marriage licenses. Brown must ensure compliance

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that take place in other states. Brown is a person within the meaning of 42 U.S.C. 1983 and
36. DEFENDANT PEGGY BEAVER is sued in her official capacity as the Hamilton
County Clerk. Beavers duties include accepting marriage applications, issuing marriage
licenses, and maintaining records relating to marriage licenses. Beaver must ensure compliance
that take place in other states. Beaver is a person within the meaning of 42 U.S.C. 1983 and
was acting under color of state law at all times relevant to this complaint. Collectively,
DEFENDANTS BOGAN, MARTIN, BROWN, and BEAVER are referred herein as the
DEFENDANT CLERKS.
37. DEFENDANT WILLIAM C. VANNESS II, M.D., is sued in his official capacity
as the COMMISSIONER, INDIANA STATE DEPARTMENT OF HEALTH. VanNess is a
person within the meaning of 42 U.S.C. 1983 and was acting under color of state law at all
times relevant to this Complaint. The Indiana State Department of Health (ISDH) is required
to develop the form for applications for marriage licenses, including the requirement to list one
Male Applicant and one Female Applicant. The ISDH also prescribes the information to be
contained on state certificates, including death certificates.
38. DEFENDANT GREG ZOELLER is sued in his official capacity as the
ATTORNEY GENERAL OF INDIANA. Zoeller is a person within the meaning of 42 U.S.C.
1983 and was acting under color of state law at all times relevant to this Complaint. In his

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capacity as Attorney General, Zoeller has the authority to enforce the statutes of the State of
Indiana, including its provisions related to the marriage ban, and has the duty to defend the
constitutionality of the enactments of the Indiana Legislature.
39. All of the above Defendants, and those subject to their supervision, direction, and
control, intentionally performed, participated in, aided and/or abetted in some manner the acts
alleged herein, proximately caused the harm alleged herein, and will continue to injure Plaintiffs
irreparably if not enjoined.
STATEMENT OF FACTS
40. Adult Plaintiffs are all residents of Indiana who experience the same joys and
shoulder the same challenges of family life as their heterosexual neighbors, co-workers, and
other community members who are free to marry. Adult Plaintiffs are contributing members of
society who support their committed partners and nurture their children, but must do so without
the same dignity and respect afforded by the State to other families through access to the
universally understood and celebrated status of marriage. The States exclusion of same-sex
couples from marriage, and from recognition of their lawful out-of-state marriages, subjects adult
Plaintiffs to legal vulnerability and related stress, while depriving them and their children of
equal dignity and security. Through its marriage ban, the State send a purposeful message that
the State views lesbian and gay men and their children as second-class members of society who
are undeserving of the legal sanction, respect, and support that different-sex spouses and their
families enjoy.
A. Adult Plaintiffs Attempts to Marry and Marriage in Other Jurisdictions.
41. But for the fact that they are of the same sex, each unmarried Plaintiff couple is
legally qualified to marry under the laws of Indiana and wishes to marry in the State. Each adult

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Plaintiff is over the age of eighteen, and no adult Plaintiff is precluded from marriage as a result
of having another spouse or being closely related to his or her life partner.
42. Because of Indianas statutory prohibition on marriage for same-sex couples, the
DEFENDANT CLERKS are required to refuse to issue a marriage licenses to same-sex couples.
See I.C. 31-11-1-1(a) (Only a female may marry a male. Only a male may marry a female.),
31-11-4-12 (If it appears that two (2) individuals do not have a right to a marriage license, the
clerk of the circuit court shall refuse to issue the license.). Each Plaintiff couple has applied for
a marriage license with the County Clerk of their respective counties. Each of their applications
was refused because Plaintiff couples are same-sex couples.
43. On March 10, 2014, Rae Baskin and Esther Fuller appeared in person at the
Boone County Clerks Office to seek a marriage license. When the couple requested a marriage
license, they were denied by three different employees of Defendant Bogan. At one point, the
employees referred the couple to another state to marry and suggested they might consider a civil
union from another state. Ultimately, Rae and Esther were told, No, we really cant do it.
44. On March 10, 2014, Bonnie Everly and Lyn Judkins appeared in person at the
Porter County Clerks Office to seek a marriage license. When the couple requested a marriage
license, they were denied by a female employee of Defendant Martin who shared Ive been
reading a lot about this, but I dont think its legal here in Indiana. When they asked again, the
employee denied their request for a marriage license.
45. On March 12, 2014, Dawn Carver and Pam Eanes appeared in person at the Lake
County Clerks Office to seek a marriage license. When the couple requested a marriage license,
they were denied by a female employee of Defendant Brown. They were told two women cant
get married here.

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46. On March 20, 2014, Henry Greene and Glenn Funkhouser appeared in person at
Hamilton County Clerks Office to seek a marriage license. When the couple requested a
marriage license, they were denied by Defendant Beaver herself. They were told we are not
able to issue you a marriage license because you are of the same gender.
47. Niki Quasney and Amy Sandler were validly married in Massachusetts and seek
through this suit to end the States current denial of recognition of their marriage on the ground
that it is a marriage entered by two individuals of the same sex.
B. Indianas Marriage Ban Singles Out Same-Sex Couples and Excludes Them
from Marriage.
48. Indiana has enacted a statute that excludes same-sex couples from marriage.
See I.C. 31-11-1-1. This statute cannot be explained by reference to legitimate public policies
that could justify the disadvantages the marriage bans impose on same-sex couples who wish to
marry. Rather, the history of its enactment and its own text demonstrates that interference with
the equal dignity of same-sex couples was more than a mere side effect of this enactment it
was its essence.
C. Plaintiffs Are Injured by the Marriage Ban.
49. Barring same-sex couples from marriage and marriage recognition disqualifies
them from critically important rights and responsibilities under state law that different-sex
couples rely upon to secure their commitment to each other and to safeguard their families. By
way of example only, same-sex couples are denied:
a. The benefit of the presumption that both spouses are parents to a child born
during the marriage, and the ability of a couple to confer legitimacy on their
children by marrying;

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b. Family health insurance coverage, including spousal health benefits, retirement
benefits, and surviving spouse benefits for public employees;
c. Family leave for an employee to care for a spouse;
d. The ability to safeguard family resources under an array of laws that protect
spousal finances;
e. The ability to make caretaking decisions for one another in times of death and
serious illness, including the priority to make medical decisions for an
incapacitated spouse, the automatic right to make burial decisions, and other
decisions concerning disposition and handling of remains of deceased spouses.
f. The right to inheritance under the laws of intestacy and the right of a surviving
spouse to an elective share;
g. Benefits for spouses and dependent children of members of the military and
veterans;
h. In the event that a couple separates, access to an orderly dissolution process for
terminating the relationship, assuring an equitable division of the couples assets
and debts, and adjudication of issues relating to custody, visitation, and support
with respect to any children the couple may have.
50. The marriage ban not only denies Plaintiffs and other same-sex couples and their
children access to protections, benefits, rights, and responsibilities afforded to married persons
and their children under state law, it also denies them eligibility for a host of federal rights and
responsibilities that span the entire United States Code and federal regulations. Unmarried
couples are denied recognition for virtually all purposes throughout the more than 1,000 statutes
and numerous federal regulations relating to marriage including laws that pertain to Social

18

Security benefits, housing, taxes, criminal sanctions, copyrights, and veterans benefits. Couples
validly married in another jurisdiction and living in Indiana may qualify for some federal
benefits and protections, but the language of certain statutes and regulations, such as veterans
spousal benefits and Social Security survivor benefits, references couples married under the law
of their state of residence or domicile. Many of these deprivations drain family economic
resources, causing financial harm not only to same-sex couples but to their children as well.
51. In addition to causing the tangible harms listed above, Plaintiffs are denied the
unique social recognition that marriage conveys. Without access to the familiar language and
legal label of marriage, Plaintiffs are unable instantly or adequately to communicate to others the
depth and permanence of their commitment or to obtain respect for that commitment as others do
simply by invoking their married status.
52. Although the Plaintiff couples are in committed relationships, they and other
same-sex couples are denied the stabilizing effects of marriage, which help keep couples together
during times of crisis or conflict.
53. The substantive and dignitary inequities imposed on committed same-sex couples
include particular harms for same-sex couples children, who are equally deserving of the
stability, permanence, and legitimacy that children of different-sex spouses enjoy. The marriage
ban denies children of same-sex couples the dignity, legitimacy, rights, benefits, support,
security, and obligations conferred on children whose parents are married. Children of same-sex
couples must combat the common assumption, reinforced by Indiana law, that as members of a
family headed by an unmarried couple, their bonds are impermanent, insubstantial, and unworthy
of equal dignity and legitimacy because the couple has not made a marital commitment and
taken on the obligations of marriage. Civil marriage affords official sanctuary to the family unit,

19

offering parents and children a familiar and public means of demonstrating to third parties a legal
basis for the parent-child relationship. By denying same-sex couples access to marriage, the
State reinforces the view, held by some, that the family bonds that tie same-sex parents and their
children are less consequential, enduring, and meaningful than those of different-sex parents and
their children. Same-sex parents raising children in Indiana cannot invoke their status as married
in order to communicate to their own children and others the depth and permanence of their
commitment to each other in terms that society, and even young children, readily understand.
Consequently, the child Plaintiffs and other children of same-sex couples are left to grow up with
the message that their parents and families are inferior to others and that they and their parents
do not deserve the same societal recognition and respect.
54. Because same-sex parents and their children thus are deprived of the family
security that inheres in a ready and familiar method of communicating to others the significance
and permanence of their familial relationships, they must live with the vulnerability and stress
inflicted by the ever-present possibility that others may question their familial relationships in
social, educational, and medical settings and in moments of crisis in a way that spouses and
their children can avoid by simple reference to being married.
55. Children of same-sex couples are less legally secure and economically situated
than children whose parents are able to marry, including because of expenses incurred in
attempting to create legal protections that approximate some of those that are automatic through
marriage, protections that are far inferior to the legal protections afforded through marriage, and
because their families are denied the strengthening effect that marriage can provide to their
parents relationships.

20

56. Children from a young age understand that marriage signifies an enduring family
unit and, likewise, understand when the State has deemed a class of families as less worthy than
other families, undeserving of marriage, and not entitled to the same societal recognition and
support as other families. The State has no adequate interest to justify marking the children of
same-sex couples with a badge of inferiority that invites disrespect in school, on the playground,
and in every other sphere of their lives.
57. The government is a powerful teacher of discrimination to others. By decreeing
that the relationships of same-sex couples must be ignored in Indiana and enforcing that policy,
the State and Defendants inform all persons with whom same-sex couples interact, including
those couples own children, that their relationships are less worthy than others. Bearing the
imprimatur of the government, the States marriage ban, which relegates same-sex couples and
their children to a lesser status, encourages others to follow the governments example in
discriminating against them.
58. The States marriage ban, and Defendants enforcement of it, causes many private
entities such as banks, insurers, and even health clubs to define family for purposes of an array
of benefits and protections in ways that exclude same-sex couples and their children from
important safety nets, such as private employer-provided health insurance for family members.
The State also encourages disrespect of committed same-sex couples and their children,
including Plaintiffs, by others in workplaces, schools, businesses, and other major arenas of life
in ways that would be less likely to occur and more readily corrected if marriage were available
to same-sex couples.

21

D. The Marriage Ban Is Not Even Rationally Related to a Legitimate
Government Purpose, Let Alone Substantially Related to an Important
Government Purpose or Narrowly Tailored to a Compelling Governmental
Purpose.
59. No legitimate let alone important or compelling interest exists to exclude
same-sex couples from marriage. An individuals capacity to establish a loving and enduring
relationship does not depend upon sexual orientation or his or her sex in relation to his or her
committed life partner, nor is there any legitimate interest in preventing same-sex couples and
their children from belonging to families headed by a married couple or in denying them the
spousal protections marriage provides.
60. Neither history nor tradition can justify the marriage ban. Marriage has remained
a vital and enduring institution despite undergoing significant changes over time to meet
changing social and ethical needs, including by the elimination of many former requirements of
marriage that we now recognize as discriminatory or otherwise impermissible such as race-
based entry requirements and gendered restrictions that historically were considered integral
aspects of marriage. Indiana is not confined to historic notions of equality, and no excuse for the
States discriminatory restriction can be found in the pedigree of such discrimination.
61. The Supreme Court has made clear that the law cannot, directly or indirectly, give
effect to private biases, and expressly rejected moral disapproval of lesbian and gay relationships
as a legitimate justification for a law.
62. Excluding same-sex couples from marriage does nothing to protect or enhance the
rights of different-sex couples. Different-sex couples will continue to enjoy the same rights and
status conferred by marriage regardless of whether same-sex couples may marry.
63. Although the State has a valid interest in protecting the public fiscally, it may not
pursue that interest by making invidious distinctions between classes of its citizens without

22

adequate justification. Moreover, the State has no fiscal justification here for denying same-sex
couples the freedom to marry because the State would generate additional revenues by allowing
same-sex couples to marry and to be recognized as married.
64. The States interest in child welfare is affirmatively harmed not furthered
by the marriage ban. The marriage ban injures same-sex couples children without offering any
benefit to other children.
65. Barring same-sex couples from marriage does not prevent same-sex couples from
raising children together. Same-sex couples in Indiana can and do bear children through use of
reproductive technology that is available to same-sex couples and different-sex couples alike,
and bring children into their families through foster care and adoption. Procreation is not a
requirement of marriage, and many married people choose not to have children while many
unmarried people procreate. Indiana has never restricted marriage to those capable of or
intending to procreate, nor would it be constitutionally permissible to do so.
66. There is no valid basis for the State to assert a preference for parenting by
different-sex couples over same-sex couples. Based on more than thirty years of research, the
scientific community has reached consensus that children raised by same-sex couples are just as
well-adjusted as children raised by different-sex couples. This consensus has been recognized by
every major professional organization dedicated to childrens health and welfare, including the
American Academy of Pediatrics, the American Psychological Association, the American
Medical Association, the National Association of Social Workers, and the Child Welfare League
of America.
67. There is not even a rational basis for favoring parenting by heterosexual couples
over gay and lesbian couples. See, e.g., De Boer v. Snyder, No. 12-CV-10285, slip op. at 24

23

(E.D. Mich. Mar. 21, 2014) (finding no logical connection between banning same-sex marriage
and providing children with an optimal environment or achieving optimal outcomes ); De
Leon v. Perry, F. Supp. 2d, 2014 WL 715741, at *14 (W.D. Tex. Feb. 26, 2014) (finding no
evidentiary support for [defendants] assertion that denying marriage to same-sex couples
positively affects childrearing, and agree[ing] with other district courts that have recently
reviewed this issue and conclud[ing] that there is no rational connection between Defendants
assertion and the legitimate interest of successful childrearing); see also id. (concluding that
Texass same-sex marriage ban causes needless stigmatization and humiliation for children
being raised by the loving same-sex couples being targeted); Perry v. Schwarzenegger, 704 F.
Supp. 2d 921, 980 (N.D. Cal. 2010) (finding that the research supporting the conclusion that
[c]hildren raised by gay or lesbian parents are as likely as children raised by heterosexual
parents to be healthy, successful and well-adjusted is accepted beyond serious debate in the
field of developmental psychology), affd sub nom, Perry v. Brown, 671 F.3d 1052 (9th Cir.
2012), vacated for lack of standing sub nom, Hollingsworth v. Perry, No. 12-144, 2013 WL
3196927 (U.S. June 26, 2013); In re Adoption of Doe, 2008 WL 5006172, at *20 (Fla. Cir. Ct.
Nov. 25, 2008) ([B]ased on the robust nature of the evidence available in the field, this Court is
satisfied that the issue is so far beyond dispute that it would be irrational to hold otherwise; the
best interests of children are not preserved by prohibiting homosexual adoption.), affd sub nom,
Florida Dept of Children & Families v. Adoption of X.X.G., 45 So. 3d 79 (Fla. Dist. Ct. App.
2010); Howard v. Child Welfare Agency Review Bd., Nos. 1999-9881, 2004 WL 3154530, at *9
and 2004 WL 3200916, at *3-4 (Ark. Cir. Ct. Dec. 29, 2004) (holding based on factual findings
regarding the well-being of children of gay parents that there was no rational relationship
between the [exclusion of gay people from becoming foster parents] and the health, safety, and

24

welfare of the foster children), affd sub nom, Dept of Human Servs. v. Howard, 238 S.W.3d 1
(Ark. 2006).
68. Excluding same-sex couples from marriage harms their children, including by
branding their families as inferior and less deserving of respect and by encouraging private bias
and discrimination. Denying same-sex couples the equal dignity and status of marriage
humiliates the children now being raised by same-sex couples, and makes it more difficult for the
children to understand the integrity and closeness of their own family and its concord with other
families in their community and in their daily lives.
69. Excluding same-sex couples from civil marriage will not make the children of
different-sex spouses more secure. Different-sex spouses children will continue to enjoy the
benefits that flow from their parents marriage, regardless of whether same-sex couples are
permitted to marry. The marriage ban has no effect on the choices different-sex couples make
about such profound issues as whether to marry, whether to have children, or whether to raise
their children within marriage.
70. The States interest in the welfare of children parented by same-sex couples is as
great as its interest in the welfare of any other children. The family security that comes from the
States official recognition and support is no less important for same-sex parents and their
children than it is for different-sex parents and their children.
71. Excluding same-sex couples from marriage does nothing to protect or enhance the
rights of different-sex spouses. Different-sex spouses will continue to enjoy the same rights and
status conferred by marriage, regardless of whether same-sex couples may marry, unimpaired by
the acknowledgment that this freedom belongs equally to lesbians and gay men.

25

E. Niki Quasney and Amy Sandlers Need for a Temporary Restraining Order
and/or Preliminary Injunction.
72. Niki Quasney and Amy Sandler have been in a long-term committed relationship
for over thirteen years. They were married in the Commonwealth of Massachusetts on August
29, 2013.
73. Niki has Stage IV ovarian cancer that she has battled for over four years,
including suffering the pain and experience of three surgeries, countless hospital visits, and
aggressive chemotherapy treatment. Indeed, Niki most recently completed a six-cycle course of
chemotherapy (11 infusions) over the last few months. Unless this Court acts, Niki and Amy
will likely be permanently denied the benefits both tangible and dignitary of recognition of
their legal marriage. For example, unless their marriage is recognized, they may face
discrimination in hospital settings, denial of a death certificate listing Amy as Nikis spouse,
challenges accessing safety nets for a surviving spouse, and other harms, including difficulty
establishing eligibility for Social Security benefits as a surviving spouse. In addition, Niki and
Amy have two young children. If this Court does not act, Niki and Amys family will never be
recognized where they live as formally united under State law, and the financial security of their
two children will remain uncertain.
74. The Indiana marriage ban is unconstitutional. Defendants should be immediately
enjoined from enforcing the ban as applied to Niki and Amy because they have an urgent need to
have their marriage recognized due to extraordinary circumstances: Nikis life-threatening
illness.
75. Niki and Amy are suffering irreparable harm as a result of the State failing to
recognize their legal marriage, and there is thus no adequate remedy at law. There is no harm to
the State of Indiana from granting a temporary restraining order and/or a preliminary injunction

26

prohibiting enforcement of the marriage ban as applied to Niki and Amy; conversely, as detailed
above, the harm to Niki and Amy is severe. Prompt action by this Court ordering Defendants
immediately to stop enforcing the Indiana marriage ban as applied to Niki and Amy will serve
the public interest.
CLAIMS FOR RELIEF
COUNT I:
Deprivation of Due Process
U.S. Const. Amend. XIV
(42 U.S.C. 1983)
76. Plaintiffs incorporate by reference all of the preceding paragraphs of this
Complaint as though fully set forth herein.
77. Plaintiffs state this cause of action against Defendants in their official capacities
for purposes of seeking declaratory and injunctive relief.
78. The Fourteenth Amendment to the United States Constitution, enforceable
pursuant to 42 U.S.C. 1983, provides that no state shall deprive any person of life, liberty, or
property, without due process of law. U.S. Const. amend. XIV, 1.
79. The right to marry the unique and irreplaceable person of ones choice and to
direct the course of ones life in this intimate realm without undue government restriction is one
of the fundamental liberty interests protected by the Due Process Clause of the Fourteenth
Amendment. Indeed, the essence of the fundamental right to marry is freedom of personal
choice in selecting ones spouse.
80. Indiana Code Sections 31-11-1-1(a), 31-11-1-1-(b), and all other sources of
Indiana law that preclude marriage for same-sex couples or prevent recognition of their
marriages violate the due process guarantee of the Fourteenth Amendment, both facially and as
applied. Defendants actions to enforce the marriage ban directly and impermissibly infringe on

27

adult Plaintiffs choice of whom to marry, interfering with a core, life-altering, and intimate
personal choice.
81. The Due Process Clause also protects choices central to personal dignity and
autonomy, including each individuals rights to family integrity and association. Defendants
actions to enforce the marriage ban directly and impermissibly infringe on adult Plaintiffs
deeply intimate, personal, and private decisions regarding family life and preclude adult
Plaintiffs from obtaining full liberty, dignity, and security for themselves and their families.
82. The DEFENDANT CLERKS and DEFENDANT VANNESS duties and actions
to ensure compliance with Indianas discriminatory marriage ban by, for example, denying same-
sex couples marriage licenses, violate adult Plaintiffs fundamental right to marry and the rights
protected under the Fourteenth Amendment to the United States Constitution to liberty, dignity,
autonomy, family integrity, association, and due process. As the Indiana Attorney General,
DEFENDANT GREG ZOELLER is responsible for enforcing and/or defending Indianas laws,
including Indianas discriminatory marriage ban. Enforcement and/or defense of the marriage
ban violates adult Plaintiffs fundamental right to marry and the rights protected under the
Fourteenth Amendment to the United States Constitution to liberty, dignity, autonomy, family
integrity, association, and due process of Plaintiffs.
83. Defendants cannot satisfy the Due Process Clauses decree that governments
denial of a fundamental right or substantial infringement of a liberty interest may be sustained
only upon a showing that the burden is narrowly tailored to serve a compelling, or even
important governmental interest, as the marriage ban is not even tailored to further any legitimate
interest at all.

28

84. Thus, Defendants, acting under color of state law, are depriving Plaintiffs of
rights secured by the Due Process Clause of the Fourteenth Amendment to the United States
Constitution in violation of 42 U.S.C. 1983.
COUNT II:
Deprivation of Equal Protection
U.S. Const. Amend. XIV
(42 U.S.C. 1983)
85. Plaintiffs incorporate by reference and re-allege all of the preceding paragraphs of
this Complaint as though fully set forth herein.
86. Plaintiffs state this cause of action against Defendants in their official capacities
for purposes of seeking declaratory and injunctive relief.
87. The Fourteenth Amendment to the United States Constitution, enforceable
pursuant to 42 U.S.C. 1983, provides that no state shall deny to any person within its
jurisdiction the equal protection of the laws. U.S. Const. amend. XIV, 1.
88. Indiana Code Sections 31-11-1-1(a), 31-11-1-1(b), and all other sources of
Indiana law that preclude marriage for same-sex couples or prevent recognition of marriages
violate the equal protection guarantee of the Fourteenth Amendment both facially and as applied
to Plaintiffs.
89. THE DEFENDANT CLERKS and DEFENDANT VANNESS duties and
actions to ensure compliance with Indianas discriminatory marriage ban by, for example,
denying same-sex couples marriage licenses, violates the right of Plaintiffs to equal protection by
discriminating impermissibly on the basis of adult Plaintiffs sexual orientation and sex, and on
the bases of the child Plaintiffs parents sex, sexual orientation, and marital status, denying such
children the dignity, legitimacy, security, support, and protections available to children whose
parents can marry. Indiana Attorney General DEFENDANT GREG ZOELLERs duties and

29

actions to enforce and defend Indianas discriminatory marriage ban violates the right of
Plaintiffs to equal protection by discriminating impermissibly on the basis of adult Plaintiffs
sexual orientation and sex, and on the bases of the child Plaintiffs parents sex, sexual
orientation, and marital status.
90. Same-sex couples, such as the Plaintiff couples, are identical to different-sex
couples in all of the characteristics relevant to marriage.
91. Same-sex couples make the same commitment to one another as different-sex
couples. Like different-sex couples, same-sex couples fall in love, build their lives together, plan
their futures together, and hope to grow old together. Like different-sex couples, same-sex
couples support one another emotionally and financially and take care of one another physically
when faced with injury or illness. Plaintiff couples seek to marry for the same emotional,
romantic, and dignitary reasons and to provide the same legal shelter to their families as
different-sex spouses.
92. Discrimination Based on Sexual Orientation. The marriage ban targets lesbian
and gay Indiana residents as a class for exclusion from marriage and discriminates against each
adult Plaintiff based on his or her sexual orientation, both facially and as applied.
93. The exclusion of Plaintiffs from marriage based on adult Plaintiffs sexual
orientation subjects Defendants conduct to strict or at least heightened scrutiny, which
Defendants conduct cannot withstand because the exclusion does not even serve any legitimate
governmental interests, let alone any important or compelling interests, nor does it serve any
such interests in an adequately tailored manner.
94. Lesbians and gay men have suffered a long and painful history of discrimination
in Indiana and the United States.

30

95. Sexual orientation bears no relation to an individuals ability to contribute to
society.
96. Sexual orientation is a core, defining trait that is so fundamental to ones identity
and conscience that a person may not legitimately be required to abandon it (even if that were
possible) as a condition of equal treatment.
97. Sexual orientation generally is fixed at an early age and highly resistant to change
through intervention. No credible evidence supports the notion that such interventions are either
effective or safe; indeed, they often are harmful and damaging. No mainstream mental health
professional organization approves interventions that attempt to change sexual orientation, and
virtually all of them have adopted policy statements cautioning professionals and the public
about these treatments.
98. Lesbians and gay men are a discrete and insular minority, and ongoing prejudice
against them continues seriously to curtail the operation of those political processes that might
ordinarily be relied upon to protect minorities.
99. Lesbians and gay men lack express statutory protection against discrimination in
employment, public accommodation, and housing at the federal level and in more than half the
states, including Indiana; are systematically underrepresented in federal, state, and local
democratic bodies; have been stripped of the right to marry through numerous state
constitutional amendments and are currently not permitted to marry in more than 30 states; and
have been targeted across the nation through the voter initiative process more than any other
group.
100. Discrimination Based on Sex. Indianas marriage ban discriminates against
adult Plaintiffs on the basis of their sex, both facially and as applied, barring Plaintiffs from

31

marriage or from being recognized as validly married solely because each of the adult Plaintiffs
wishes to marry a life partner of the same sex. The sex-based restriction is plain on the face of
Indianas laws, which stipulate that [o]nly a female may marry a male. Only a male may marry
a female, I.C. 31-11-1-1(a), and prohibit recognition of marriages in other states between
persons of the same gender, I.C. 31-11-1-1(b).
101. Because of these sex-based classifications, Marilyn Rae Baskin, for example, is
precluded from marrying Esther Fuller because Rae is a woman and not a man; were Rae a man,
she could marry Esther.
102. Indianas marriage ban also impermissibly enforces conformity with sex
stereotypes by excluding adult Plaintiffs from marrying the one person each adult Plaintiff loves
because adult Plaintiffs have failed to conform to the sex-based stereotypes that men should
marry women and that women should marry men.
103. The exclusion of adult Plaintiffs from marriage based on their sex, and the
marriage bans requirement that adult Plaintiffs behave in conformity with sex-based stereotypes
as a condition of being able to marry, cannot survive the heightened scrutiny required for sex-
based classifications.
104. Discrimination Based on Parental Status. The marriage ban impermissibly
classifies children, including the child Plaintiffs, on the bases of their parents sex, sexual
orientation, and marital status, denying such children the dignity, legitimacy, security, support,
and protections available to children whose parents can marry. The States differential treatment
of children based upon their parents sex, sexual orientation, and marital status cannot survive
the heightened scrutiny required for classifications based on parental status.

32

105. Discrimination With Respect to Fundamental Rights and Liberty Interests
Secured by the Due Process Clause. The marriage ban discriminates against adult Plaintiffs
based on sexual orientation and sex with respect to access to the fundamental right to marry and
against all Plaintiffs with respect to their liberty interests in dignity, autonomy, and family
integrity and association. Differential treatment with respect to exercise of fundamental rights
and liberty interests subjects Defendants conduct to strict or at least heightened scrutiny, which
Defendants conduct cannot withstand.
DECLARATORY AND INJUNCTIVE RELIEF

28 U.S.C. 2201 and 2202; Federal Rules of Civil Procedure 57 and 65
106. Plaintiffs incorporate by reference and re-allege all of the preceding paragraphs of
this Complaint as though fully set forth herein.
107. This case presents an actual controversy because Defendants present and ongoing
denial of equal treatment and liberty to Plaintiffs subjects them to serious and immediate harms,
warranting the issuance of a declaratory judgment.
108. Plaintiffs seek preliminary and/or permanent injunctive relief to protect their
constitutional rights and avoid the injuries described above. In addition, Plaintiffs Niki Quasney
and Amy Sandler seek a temporary restraining order and/or a preliminary injunction against the
Defendants. A favorable decision enjoining Defendants would redress and prevent the
irreparable injuries to Plaintiffs identified herein, for which Plaintiffs have no adequate remedy
at law.
109. The State will incur little to no burden in allowing same-sex couples to marry and
recognizing out-of-state marriages, whereas the hardship for Plaintiffs of being denied equal
protection and liberty is severe, subjecting them to an irreparable denial of their constitutional
rights. The balance of hardships thus tips strongly in favor of Plaintiffs.

33

PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court enter judgment:
A. Declaring that the provisions and enforcement by Defendants of Indiana Code
Sections 31-11-1-1(a), 31-11-1-1(b), and any other sources of Indiana law that exclude same-sex
couples from marriage or from recognition of marriages entered into in another jurisdiction
violate Plaintiffs rights under the Due Process Clause and Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution;
B. Preliminarily and permanently enjoining enforcement by Defendants of Indiana
Code Sections 31-11-1-1(a), 31-11-1-1(b), and any other sources of state law that exclude same-
sex couples from marriage or refuse recognition to the marriages of same-sex couples entered
into in another jurisdiction;
C. Requiring the DEFENDANT CLERKS in their official capacities to accept
applications and issue marriage licenses to same-sex couples on the same terms as different-sex
couples;
D. Requiring the DEFENDANT COMMISSIONER OF INDIANA STATE
DEPARTMENT OF HEALTH to change all appropriate forms, certificates, policies, and
instructions in order to recognize marriage applications and marriages of same-sex couples.
E. Issuing a temporary restraining order and/or preliminary injunction against
Defendants for the benefit of Plaintiffs Niki Quasney and Amy Sandler:
i. enjoining Defendants and all those acting in concert from enforcing Indianas
laws prohibiting recognition of Plaintiffs Niki Quasney and Amy Sandlers legal
out-of-state marriage;
ii. should Plaintiff Niki Quasney pass away in Indiana, ordering DEFENDANT
COMMISSIONER OF INDIANA STATE DEPARTMENT OF HEALTH and all

34

those acting in concert to issue to Plaintiff Amy Sandler a death certificate that
records her marital status as married or widowed and that lists her as the
surviving spouse; said order shall include a requirement that Defendant VanNess
issue directives to local health departments, funeral homes, physicians, coroners,
medical examiners, and others who assist with the completing of Indiana death
certificates explaining their duties under the order of this Court;
F. Awarding Plaintiffs their costs, expenses, and reasonable attorneys fees pursuant
to, inter alia, 42 U.S.C. 1988 and other applicable laws; and,
G. Granting such other and further relief as the Court deems just and proper.
H. The declaratory and injunctive relief requested in this action is sought against
each Defendant; each Defendants officers, employees, and agents; and against all persons acting
in cooperation with any Defendant or under a Defendants supervision, direction, or control.

DATED: March 31, 2014
Respectfully submitted,
/s/ Barbara J. Baird_____________
Barbara J. Baird
LAW OFFICE OF BARBARA J. BAIRD
445 North Pennsylvania Street, Suite 401
Indianapolis, Indiana 46204-0000
(317) 637-2345
bjbaird@bjbairdlaw.com

Paul D. Castillo
LAMBDA LEGAL DEFENSE & EDUCATION FUND, INC.
3500 Oak Lawn Ave., Suite 500
Dallas, Texas 75219
(214) 219-8585
pcastillo@lambdalegal.org


35

Camilla B. Taylor
LAMBDA LEGAL DEFENSE & EDUCATION FUND, INC.
105 West Adams, Suite 2600
Chicago, Illinois 60603
(312) 663-4413
ctaylor@lambdalegal.org

Jordan M. Heinz
Brent P. Ray
Dmitriy G. Tishyevich
Melanie MacKay
Robyn R. English
KIRKLAND & ELLIS LLP
300 North LaSalle Street
(312) 862-2000
jordan.heinz@kirkland.com
brent.ray@kirkland.com
dmitriy.tishyevich@kirkland.com
melanie.mackay@kirkland.com
robyn.english@kirkland.com
1 | P a g e

INDIANAPOLIS DIVISION

MIDORI FUJII, )
MELODY LAYNE and TARA BETTERMAN, )
SCOTT and RODNEY MOUBRAY-CARRICO, )
MONICA WEHRLE and HARRIET MILLER, )
GREGORY HASTY and CHRISTOPHER )
VALLERO, )
ROB MACPHERSON and STEVEN STOLEN, )
L.M.-C., by his next friends and parents, SCOTT )
and RODNEY MOUBRAY-CARRICO, )
A.M.-S., by her next friends and parents )
ROB MACPHERSON and STEVEN STOLEN, )
)
Plaintiffs, )
)
v. ) No. 1:14-cv-404 RLY-TAB
)
GOVERNOR, STATE OF INDIANA, in his )
official capacity, )
COMMISSIONER, INDIANA STATE )
DEPARTMENT OF REVENUE, in his official )
capacity, )
COMMISSIONER, INDIANA STATE )
DEPARTMENT OF HEALTH, in his official )
capacity, )
CLERK, ALLEN COUNTY, INDIANA, in her )
official capacity, )
CLERK, HAMILTON COUNTY, INDIANA, in )
her official capacity, )
)
Defendants. )

Amended Complaint for Declaratory and Injunctive Relief
Notice of Claim that Indiana Statute is Unconstitutional

Introduction

1. Plaintiffs bring this action to challenge the constitutionality of Indiana Code 31-11-1-1.
The statute excludes same sex couples from marriage and voids within Indiana the marriages of
same-sex couples lawfully entered into in other states. The plaintiffs consist of a number of
2 | P a g e

persons who are severely burdened because of the above statute. Plaintiff Midori Fujii is a
widow whose same-sex spouse died in October of 2011 after three years in a marriage that was
solemnized in a state recognizing same-sex unions. However, because Indiana law does not
recognize such unions, she is not provided the protections afforded widows under Indiana law.
This significantly disadvantages her. Plaintiffs Monica Wehrle and Harriet Miller and Gregory
Hasty and Christopher Vallero are lesbian and gay couples in loving and committed relationships
who wish to marry in Indiana for the same reasons that opposite-sex couples marry to publicly
declare their love and commitment and to give one another the security and protection that only
marriage provides. However, they cannot do so because of the challenged statute. Melody
Layne and Tara Betterman and Rob MacPherson and Steven Stolen are lesbian and gay couples
who have married in other jurisdictions where same-sex marriages are lawful but whose
marriages are deemed void by the challenged law so that they are treated as legal strangers and
denied the significant benefits, both tangible and intangible, that Indiana bestows on married
persons. At the time that their initial complaint was filed, Scott and Rodney Moubray-Carrico
were a gay couple who wished to marry; they are being married on todays date in Maryland,
where same-sex marriages are lawful, and desire that that marriage be recognized in Indiana.
Scott and Rodney Moubray-Carrico are the parents and next friends of their minor child and
plaintiff, L.M.-C., and Rob MacPherson and Steven Stolen are the parents and next friends of
their minor child and plaintiff, A.M.-S. The fact that their parents are not permitted to marry or
to have their marriages recognized in Indiana materially harms the children, stigmatizes them,
and denies their families the legal protections, security, and social support that only marriage
provides. Indiana Code 31-11-1-1 is unconstitutional as violating both due process and equal
protection as secured by the Fourteenth Amendment to the United States Constitution.
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Appropriate injunctive and declaratory relief is therefore requested.
Jurisdiction, venue, cause of action
2. This Court has jurisdiction of this case pursuant to 28 U.S.C. 1331 and 1343.
3. Venue is proper in this district pursuant to 28 U.S.C. 1391.
4. Declaratory relief is authorized by 28 U.S.C. 2201 and 2202 and by Rule 57 of the
Federal Rules of Civil Procedure.
5. Plaintiffs bring this action pursuant to 42 U.S.C. 1983 to redress the deprivation, under
color of state law, of rights secured by the Constitution of the United States.
Parties
6. Midori Fujii is an adult resident of Hamilton County, Indiana.
7. Melody Layne and Tara Betterman are adult residents of Marion County, Indiana.
8. Scott and Rodney Moubray-Carrico are adult residents of Floyd County, Indiana.
9. Monica Wehrle and Harriet Miller are adult residents of Allen County, Indiana.
10. Gregory Hasty and Christopher Vallero are adult residents of Hamilton County, Indiana.
11. Rob MacPherson and Steven Stolen are adult residents of Marion County, Indiana.
12. L.M.-C. is a minor child and lives with his parents and next friends Scott and Rodney
Moubray-Carrico. He is proceeding by his initials pursuant to F.R.Civ.P. 5.2(a)(3).
13. A.M.-S. is a minor child and lives with her parents and next friends Rob MacPherson and
Steven Stolen. She is proceeding by her initials pursuant to F.R.Civ.P. 5.2(a)(3).
14. The Governor of the State of Indiana is the duly elected chief executive of the State of
Indiana. He is sued in his official capacity and is designated by official title pursuant to
Fed.R.Civ.P. 17(d).
15. The Commissioner, Indiana Department of Revenue is the duly appointed director of that
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agency. He is sued in his official capacity and is designated by official title pursuant to
Fed.R.Civ.P. 17(d).
16. The Commissioner, Indiana State Department of Health is the duly appointed director of
Indianas health agency. He is sued in his official capacity and is designated by official title
pursuant to Fed.R.Civ.P. 17(d).
17. The Clerk of Allen County is the duly elected Clerk of that county. She is sued in her
official capacity and is designated by official title pursuant to Fed.R.Civ.P. 17(d).
18. The Clerk of Hamilton County is the duly elected Clerk of that county. She is sued in her
official capacity and is designated by official title pursuant to Fed.R.Civ.P. 17(d).
Legal background
19. Indiana Code 31-11-1-1 provides:
(a) Only a female may marry a male. Only a male may marry a female.
(b) A marriage between persons of the same gender is void in Indiana even if the
marriage is lawful in the place where it is solemnized.

20. As a result of the challenged law, marriage in Indiana is legally available only to
opposite-sex couples. Same-sex couples may not marry in Indiana, and if they are married in
other states, their marriages are not recognized in Indiana.
21. Pursuant to Indiana law, Indiana Code 31-11-4-4, the State Department of Health is
required to develop the form for applications for marriage licenses. The form adopted by the
State Department of Health is attached to this Complaint as Exhibit 1.
22. The application currently has information only for the Male Applicant and the Female
Applicant. It is therefore impossible for a same-sex couple to complete the form. The form
notes that furnishing false information in completing the form is a felony.
23. Under Indiana law the Clerk of each County is required to issue marriage licenses to
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eligible couples who complete the application. Ind. Code 31-11-4-1, et seq. The Clerk is
precluded from issuing a license to persons who do not have the authority to marry each other
under, among other things, Indiana Code 31-11-1-1. Ind. Code 31-11-4-2.
24. The Executive Power of the State of Indiana is vested in the Governor. Ind. Const. art. 5,
1. As such, the Governor appoints the heads of, and is ultimately in charge of, numerous state
agencies.
Factual allegations
Midori Fujii
25. Plaintiff Midori Fujii ("Midori"), lived in a committed relationship with Kristie Kay
Brittain ("Kris") from 2000 until Kris's death in October, 2011.
26. Midori and Kris met in 1997 when both were serving on the Board of Directors of a
local non-profit organization. They developed a strong friendship that, after a few years,
grew into a life-long, committed relationship and then marriage.
27. Their lives together revolved around family, friends and their beloved pets. They were
self-described foodies who enjoyed both going out to different restaurants and trying out new
recipes at home. They would pick up food magazines like Bon Appetite or Gourmet, go to
kitchen stores like Williams Sonoma or Sur La Table, or watch Food Network and get inspired
for a project to either cook something or go in search of a restaurant. They also loved travel
with family and friends, and often combined their love of travel and food to search out new
dishes to re-create at home.
28. Midori and Kris married in Los Angeles, California in the summer of 2008.
29. In March 2009, Kris was diagnosed with ovarian cancer. During her fight with
cancer, she went through two major surgeries, several hospitalizations, multiple courses of
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chemotherapy, and numerous tests and doctor's appointments. Midori was her primary caregiver
throughout. Midori initially used her sick leave and paid time off to take care of Kris, but as
Kriss medical care needs increased, Midori began to work from home when possible and she
took unpaid leaves of absence.
30. Because of Indianas marriage discrimination statute, Midori and Kris were considered
unmarried and did not have the protections and decision-making authority they automatically
would have been given by statute had they been an opposite-sex couple married in California and
living in Indiana. They had an attorney draft expensive documents, including wills and powers
of attorney, to ensure Midori could care for Kris, make medical decisions as needed and inherit
property from her spouse. Throughout Kriss battle with cancer the couple was always a little on
guard going to the doctors and hospitals and they lived with the added emotional stress of
constantly being apprehensive about how they as a lesbian couple they would be treated by
health care providers.
31. While Kris was suffering the physical and emotional pain of end stage cancer, she had
the additional burden of worrying about how Midori would manage financially after she was
gone. The attorney with whom the couple consulted was able to provide some protections,
such as a will to ensure that Kris's wishes to leave her property to Midori would be honored.
But there was nothing the attorney could do to establish most of the legal protections that are
available to widows and widowers.
32. Because Midori's marriage to Kris is not recognized in Indiana, Midori was required to
pay more than $300,000.00 in Indiana inheritance tax on all of the property that Kris left to her,
including their shared home. If Midori were an opposite sex spouse she would have paid
no inheritance tax on the property she inherited from Kris. And unless their marriage is
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recognized in Indiana, Midori will not be eligible to receive Kris's social security benefits when
she turns 65. Because Kris was the familys primary breadwinner, if Midori could draw on
Kriss social security, as an opposite sex spouse could, Midori would have more financial
security in retirement.
33. If Midoris marriage to Kris was now recognized in Indiana as valid she could file the
necessary proceedings in Indiana to have the inheritance tax refunded to her.
34. Indiana's refusal to recognize her marriage to Kris does not just cause Midori economic
hardship. In her time of grief, she is denied the comfort and dignity of being acknowledged as
Kris's widow. For example, following Kriss death in 2011, Midori experienced problems with a
funeral director because she was not considered to be a surviving spouse.
Melody Layne and Tara Betterman
35. Plaintiffs Melody Layne ("Melody") and Tara Betterman ("Tara") of Indianapolis have
lived together in a committed relationship for nearly 5 years. They met through a mutual
friend.
36. Melody, 37, is a lifelong Indiana resident, born and raised in Greenwood. Tara, 44,
grew up in New York and Florida and moved to Indiana in the late 1990s to be near her twin
brother. Melody works in business development for John Wiley & Sons, a publishing company.
Tara is the owner and CEO of a property management company in Indianapolis where she
employees 12 people.
37. Melody and Tara share their home in Indianapolis with Melodys 5 year old biological
daughter. Although Tara does not have a legal relationship with the child, she is a parent in every
practical respect and their daughter understands that they are family.
38. Melody and Tara strongly support each other. They share finances and responsibility for
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their property, including the home they share.
39. In 2012, Melody and Tara married in Central Park in New York City. They would have
preferred to marry in their home state but are prohibited from doing so by Indianas marriage
discrimination statute.
40. Because their marriage is not recognized in their home state of Indiana, Melody and
Tara have gone to considerable expense to have an attorney draw up documents, such as health
care and general powers of attorney, to try to protect themselves. They understand, however,
that this affords them only a fraction of the protections that come with marriage and they are
concerned that those papers will not be honored in a crisis. They also still must incur the added
expense of having wills drafted to provide the right to inherit from one another they would
receive automatically by statute if their marriage were recognized.
41. They also suffer additional financial harms and burdens opposite sex married couples do
not endure. For example, because IRS recognizes their marriage but Indiana does not, they must
complete three separate federal tax returns for 2013 one joint return as a married couple to file
and two individual returns to be used to transfer information to the separate Indiana state income
tax returns they must file.
42. If Melody and Tara were an opposite sex couple their New York marriage would be
recognized in Indiana and they would be treated as a married couple under Indiana law.
43. The recognition and legitimacy that marriage provides to them means the world to
Melody and Tara when they get to experience it. When they married in New York they felt
happy and free every time they were recognized as a legal couple. They feel the loss of that
freedom every time they return home to Indiana after travelling in a state where their marriage is
respected.
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44. For Tara and Melody, the cost of continuing to live in Indiana to be close to family was
to be effectively "unmarried" and, thus, considered less of a family in the eyes of the state.
Melody and Tara would like their marriage to be recognized in Indiana not only because of the
concrete protections it would provide to them and their daughter, but also because being
treated as an unmarried couple disrespects the commitment they have made to one another and
devalues their family. They hope that their marriage will be recognized in Indiana before their
daughter is old enough to be aware that the state does not consider her family deserving of the
same respect afforded other families.
Scott Moubray-Carrico, Rodney Moubray-Carrico, and L.M.-C.
45. Plaintiffs Scott Moubray-Carrico ("Scott") and Rodney Moubray-Carrico
("Rodney") have lived together in a committed relationship for 12 years. Scott and Rodney
live in New Albany, in Floyd County, with their son. Rodney, 47, is General Manager of a
hotel. Scott, 47, is store manager of a department store. Scott and Rodney have lived in New
Albany, Indiana since 2006. They both pay state income tax in Indiana.
46. Scott and Rodney have one son, plaintiff L.M.-C., who is 6. Scott adopted L.M-C.
initially and Rodney later obtained a second parent adoption to establish a legal parent-child
relationship with their son.
47. At the time of the filing of their initial complaint, Scott and Rodney were not married but
desired to be married. They are being married in Maryland, which recognizes marriages by
same-sex couples, on todays date.
48. Scott and Rodney are very involved in their son's school and in their church, including
leading a service project in their sons school to donate money and supplies to a neglected school
in an impoverished area.
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49. In 2010, Scott and Rodney both changed their last names to Moubray-Carrico, a
combination of their surnames. They changed their last names through legal process after
experiencing challenges in being viewed as a family while enrolling their son in pre-school.
Because they cannot be married in Indiana, presenting themselves as a family to their sons
preschool caused confusion. They also hoped that changing their last names would contribute
to their sons self-esteem and sense of security by conveying the stability, permanence, and
family legitimacy that his peers enjoy simply by virtue of the fact that their parents are permitted
to marry in Indiana.
50. Scott and Rodney would like for Indiana to recognize their marriage in order to have the
legal protections married couples rely on. Because Indiana will not recognize their marriage
they are required to have expensive planning documents in order to protect themselves and one
another. To secure some measure of protection, Scott prepared a Last Will & Testament and
Power of Attorney. Because of the cost associated with the preparation of these documents Scott
prepared his online and Rodney has not yet been able to obtain documents. But for Indianas
marriage discrimination statute, Scott and Rodneys marriage would be recognized in Indiana
and they would receive the automatic protections given to married couples. For example, even
without health care powers of attorney they could make health care decisions for one another in
the event of a crisis and they could inherit property from one another through intestate
succession. Rodney is fearful of how they might be treated in a time of crisis since Scotts
documents are self-prepared. And they know if tragedy were to befall Rodney, Scott would be
treated as a legal stranger unable to make decisions for or perhaps even visit in a hospital the
person to whom he has committed his life.
51. In addition, the failure of Indiana to recognize their marriage impacts the family
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financially. If either were to die, the survivor would be denied social security. Scott would
have been entitled to no inheritance from Rodney. They must pay costly attorney fees
to obtain properly drafted, enforceable documents to give them some measure of
protection.
52. Scott and Rodney also want Indiana to recognize their marriage because they are
concerned that their son is being taught the message that his family is less deserving of respect
and support than other families.
53. Scott and Rodney meet all the requirements for Indiana to recognize their marriage,
except for the fact that they are both male.
54. Scott and Rodneys wedding ceremony today will be a small ceremony devoid of the
many family and friends they have in Indiana who cannot make the trip with them. They would
have preferred to marry in Indiana surrounded by family and friends, but they believe they
cannot wait any longer for Indiana law to treat them equally. Rodney and Scott would like their
marriage to be recognized in Indiana not only because of the concrete protections it would
provide to them and their son, but also because they feel that being treated as an unmarried
couple disrespects the commitment they have made to one another and devalues their family.
55. Even after their Maryland marriage, they remain legal strangers in Indiana. If they were
an opposite sex couple their Maryland marriage would be recognized by Indiana and they would
be treated as a married couple under Indiana law.
56. L.M-C., at age 6, is beginning to understand the concept of marriage and its unequaled
role in defining family. He knows he and his parents are a family but he does not understand
why his friends parents are allowed to marry and his parents are not. He is stigmatized and his
family is demeaned by the fact that his parents are excluded from marriage. Allowing his
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parents to marry and recognizing their Maryland marriage would demonstrate that he and his
family are equally worthy of respect and the substantive protections and benefits marriage
provides.
Monica Wehrle and Harriet Miller
55. Monica Wehrle (Monica) and Harriet Miller (Harriet) reside in Allen County,
Indiana. Monica is a native of Fort Wayne, Indiana, and Harriet, an Ohio native, has lived in Fort
Wayne since 1971.
56. They are lesbians and have been a committed, loving couple since 1977.
57. Monica has B.A. and M.P.A. degrees from Indiana University. Harriet has a B.A. degree
from Goucher College and was also awarded an honorary Ph.D. from Indiana University.
58. Monica and Harriet have a lengthy history of being advocates for the rights of women
and, in 1977, created the Fort Wayne Womens Bureau, a not-for-profit human services agency
that provides a host of services to women and children.
59. Subsequent to creating the Fort Wayne Womens Bureau, Monica and Harriet created
run, jane, run, an event for amateur female athletes that was a fundraiser for the Fort Wayne
Women's Bureau. By the late 1980s "run, jane, run. had become a separate national
organization with affiliates in 15 communities across the United States.
60. The couple has a significant history of civic leadership and involvement in the Fort
Wayne community. They have been active participants, both nationally and internationally, in
the Gay Games.
61. During the course of their relationship as a couple they have had to expend significant
sums of money to pay attorneys to create legal documents to assure that they each have the right
to make medical and other important life decisions for the other person in the event of
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incapacity. If they were married, these would not be necessary. Additionally, they remain
concerned that in the event one of them is hospitalized these documents will not be honored.
62. Because they are not married they are unable to own property as married persons do, as
tenants by the entirety. Instead, they have had to incur legal fees to insure that in the event of
one of their deaths, the property would automatically pass to the surviving person.
63. Harriet has three adult children and four grandchildren. And, between Harriet and
Monica, they have many great nieces and nephews who know them only as a couple.
64. They wish to marry and wish to do so in Indiana where they live.
65. They want their state to support their committed relationship.
66. They want their young relatives to know that their State Indiana supports loving
couples completely, regardless of whether the couples are gay or straight.
67. At the current time they are made to feel like second-class citizens without the same
rights, benefits, and privileges that heterosexual couples may attain when they marry. They wish
to be treated equally.
68. They want their legacy to be honored with dignity and their heirs to be proud of who they
are, with knowledge that Indiana and the United States recognizes them and their contributions
as a couple and provides them with full legal rights.
Gregory Hasty and Christopher Vallero
69. Gregory Hasty and Christopher Vallero are a gay couple who live in Hamilton County,
Indiana.
70. Gregory Hasty is a surgical technologist who is working on a nursing degree and
Christopher Vallero, a graduate of Indiana Universitys Kelly School of Business, is employed
by a medical research company in Indianapolis.
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71. They have lived with each other in a committed and loving relationship for eight years.
72. They have not married although they desire to do so.
73. Gregory Hasty is a native of Indiana and wishes to be married in his home state.
74. They lead shared lives comparable to that of a married couple. However, they are denied
the many benefits of marriage.
75. For example, they own their home together. But, because they are not married they do
not own the property as tenants by the entirety, but as tenants in common.
76. During their relationship they have had to employ attorneys to draw up legal documents
such as medical powers of attorney that would be completely unnecessary if they were married,
as a spouse would automatically have these powers and rights. And, there is no guarantee that if
an emergency arises and one of them is hospitalized they will have the proper documents with
them giving the non-hospitalized partner decision-making rights or, even if the papers are there,
the hospital will honor them.
77. They are looking into the possibility of adopting a child. They want to adopt a child into
a family where the partners are married. They want their child to be raised by married parents in
a State that recognizes the right of loving couples to wed, regardless of whether they are straight
or gay.
78. In addition to the many tangible benefits that are denied to them because they are denied
the right to marry, even though they are in a committed relationship, they are denied the many
intangible benefits that arise from being able to show the world that they are married. They are
stigmatized by Indianas refusal to allow them to wed.
Rob MacPherson, Steven Stolen, and AM-S
79. Rob MacPherson and Steven Stolen reside in Indianapolis.
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80. They have been a committed and loving couple for more than 25 years and were married
in California in October of 2008.
81. Steven Stolen has a B.M. degree in Music Performance and a Masters Degree in Music
from the University of Michigan. He is an arts advocate and professional singer. He was a
college professor for 20 years and is currently the Regional Director for Rocketship Indiana, a
charter school management association.
82. Rob MacPherson has a B.A. from Central Michigan University. He currently serves as
the Vice President for Development and Philanthropic Services with the Central Indiana
Community Foundation whose goal is to inspire, support, and practice philanthropy, leadership,
and service in Central Indiana. He directs the Foundations asset development strategies and
donor services activities. He has been involved in non-profit organizations his entire career.
83. A.M.-S. was born in July 1998. Her birth mother chose Rob MacPherson and Steven
Stolen to be A.M.-S.s adoptive parents prior to the childs birth. A.M.-S. was legally adopted by
Rob MacPherson in November 1998 and then filed a co-parenting petition to the State of
Indiana. The State of Indiana granted that petition and A.M.-S. was adopted by Steven Stolen in
March 1999.
84. Because their marriage is not recognized by the State of Indiana, Rob MacPherson and
Steven Stolen have to deny their status as married persons when they pay their state taxes, even
though the federal government now recognizes them as married.
85. They own their home. However, because their marriage is not recognized, they do not
own the property as tenants by the entirety.
86. They have had to hire attorneys to set up medical decision-making and other documents
to allow one partner to make decisions for the other in case of incapacity. Much of this would be
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unnecessary if their marriage were recognized. And, there is no guarantee that if there is a
medical emergency that the decision-making authority of the other partner will be recognized.
87. They recognize that there are many tangible benefits bestowed under Indiana law to
married persons, but these are denied to them.
88. This is at its most basic grossly unfair, regardless of all the tangible benefits that they,
and their child, are denied. It is unfair that they are not recognized as a family and treated like all
other families with married parents. To have their relationship not afforded the same legal status
as the relationships of other couples, merely because they are both men, is onerous.
89. It is particularly onerous because they are parents and this burdens not only them, but
A.M.-S., their daughter.
90. A.M.-S. is currently 15 and is aware that her parents marriage is not recognized by the
State of Indiana and this causes her concern as she does not view her parents any differently than
those of her friends who have married, opposite-sex, parents. Yet, she is acutely aware that the
State of Indiana treats her parents, and hence her, differently.
The general effects of the challenged law
91. Excluding same-sex couples from marriage disqualifies them from critically important
rights and responsibilities that different-sex couples rely upon to secure their commitment to
each other, and to safeguard their families. By way of example only, same-sex couples are
denied:
a. The right to make health care decisions for an incapacitated spouse, although
opposite-sex spouses enjoy this statutory right. Ind. Code 16-36-1-5.
b. The protection of the marital privilege that is given to opposite-sex couples who
wed. Ind. Code 34-46-3-1.
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c. The duty of support and rights regarding child custody and parenting time with
respect to children of the marriage. See generally Ind. Code 31-9-2-13 (Definition of
child).
d. Statutory protections granted to opposite-sex spouses upon death, including rights
to inheritance when an opposite-sex spouse dies without a will, Ind. Code 29-1-2-1; the
right to claim an elective share of the estate of a deceased, opposite-sex spouse who died
with a will, Ind. Code 29-1-3-1, et seq.; various survivor benefits for the opposite-sex
spouse of a public safety officer or state police officer killed in the line of duty, Ind. Code
5-10-10-6, 5-10-10-6.5, 5-10-14-3; 10-12-2-6; various state retirement fund survivor
benefits for opposite-sex spouses, Ind. Code 5-10.2-3-7.6, 5-10.2-3-8, 5-10.3-12-27.
e. The stabilizing effects and legal protections granted to opposite-sex spouses and
their children through mandatory waiting periods prior to marriage dissolution, Ind. Code
31-15-2-10, and by the requirements of fair division of marital property whether owned
or acquired by one or both parties to the marriage, Ind. Code 31-15-7-4.
f. Preference given to opposite-sex spouses in being appointed legal guardian for an
incapacitated spouse. Ind. Code 29-3-5-5.
g. Protection of the criminal code that makes it a crime to fail to support a needy
spouse. Ind. Code 35-46-1-6.
h. Eligibility for Gold Star family member status and eligibility for personalized
or special group license plates for surviving, opposite-sex spouses of active duty armed
forces or National Guard members or former prisoners of war. Ind. Code 9-18-15-1, 9-
18-25-8, 9-18-54-1.
i. The right/obligation to file joint state income tax returns. Ind. Code 6-3-4-2.
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j. Exemption from state inheritance tax imposed on property transferred by a
decedent to a surviving, opposite-sex spouse. Ind. Code 6-4.1-3-7.
92. In addition to state-level benefits and obligations, Indianas exclusion of same-sex
couples from marriage denies them eligibility for numerous federal protections that are only
available to married couples if their marriages are legally recognized in the state where they live.
For example, spousal eligibility for social security benefits and the Family Medical Leave Act
are based on the law of the state where the couple resides at the time of application. 42 U.S.C.
416(h)(1)(A)(i) (social security); 29 C.F.R. 825.122(b) (Family Medical Leave Act).
93. Furthermore, while some federal agencies currently recognize marriages validly
performed in a state regardless of where the married couple lives, those are administrative
decisions and are thus subject to the vagaries of agency policy under different administrations
and subject to congressional action. On January 9, 2014 and February 14, 2014, bills were
introduced in the U.S. House of Representatives and U.S. Senate, respectively, which would
require the federal government to defer to the laws of a persons state of legal residence in
determining marital status. See H.R. 3829, 113th Cong. 3 (2014) (For Federal purposes the
term marriage shall not include any relationship that the state, territory, or possession [where
the couple resides] does not recognize as a marriage.); S. 2024, 113th Cong. (2014) (A bill to
amend chapter 1 of title 1 of the United States Code, with regard to the definition of marriage
and spouse for Federal purposes and to ensure respect for State regulation of marriage.).
94. In addition to the tangible harms above, same-sex couples wishing to marry in Indiana, or
who live in Indiana but entered into a marriage in another jurisdiction, are denied the unique
social recognition that marriage conveys. Without access to the familiar language and legal label
of marriage, they are unable to instantly or adequately communicate to others the depth and
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permanence of their commitment, or to obtain respect for that commitment as others do simply
by invoking their married status.
95. The many substantive and dignitary inequities imposed on committed same-sex couples
include particular harms to same-sex couples children, who are equally deserving of the stability,
permanence, and legitimacy that are enjoyed by children of different-sex couples who marry.
Civil marriage affords official sanctuary to the family unit, offering parents and children critical
means to secure legal parent-child bonds, and a familiar, public way of demonstrating those bonds
to third parties. By denying same-sex couples marriage, Indiana reinforces the view that the
family bonds that tie same-sex parents and their children are less consequential, enduring, and
meaningful than those of different-sex parents and their children. Same-sex couples and their
children accordingly must live with the vulnerability and the stress inflicted by a lack of access to
the same mechanisms for securing their legal relationships, and the ever-present possibility that
others may question their familial relationship in social, legal, educational, and medical settings
and at times of crisis in ways that opposite-sex spouses can avoid simply by reference to being
married.
96. From a young age, children understand that marriage signifies an enduring family unit, and
also understand that Indiana classifies families headed by same-sex couples as less worthy than
other families, undeserving of marriage, and not entitled to the same societal recognition and legal
support as other families. Indiana has no adequate interest to justify marking the children of same-
sex couples, including plaintiffs L.M.-C. and A.M.-S., with a badge of inferiority that will invite
disrespect in school, on the playground, and in every other sphere of their lives.
97. The government is a powerful teacher of discrimination to others. By decreeing that the
relationships of same-sex couples should be ignored in Indiana, Indiana instructs all persons with
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whom same-sex couples interact, including those couples own children, that their relationships
are less worthy than others. Bearing the imprimatur of the government, Indianas marriage
discrimination statute communicates a view that same-sex couples are unfit for the dignity,
respect, and stature afforded to different-sex couples, and this encourages others to follow the
governments example in discriminating against them.
98. Many private entities defer to Indianas designation of marital status in defining family
for purposes of an array of important benefits, often resulting in the exclusion of same-sex
couples and their children from important safety nets such as private employer-provided health
insurance for family members. Indiana also encourages disrespect of committed same-sex
couples and their children by others in workplaces, schools, businesses, and other major arenas
of life, in ways that would be less likely to occur and more readily corrected if marriage were
available to same-sex couples.
Marriage and same-sex couples
99. Same-sex couples and opposite-sex couples are similarly situated for purposes of marriage.
100. Same-sex couples make the same commitment to one another as opposite-sex couples.
Like opposite-sex couples, same-sex couples fall in love, build their lives together, plan their
futures together, and hope to grow old together. Like opposite-sex couples, same-sex couples
support one another emotionally and financially, and take care of one another physically in times
of injury or illness.
101. Plaintiffs seek to marry and/or to have their marriages recognized for the same emotional,
romantic, and dignitary reasons, and to provide the same legal shelter to their families, as
opposite-sex couples.
102. Plaintiffs, both adults and children, are equally worthy of the tangible rights and
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responsibilities, as well as the respect, dignity, and legitimacy that access to marriage confers on
opposite-sex couples and their children. For the many children being raised by same-sex couples,
the tangible resources and societal esteem that marriage confers on families is no less important
than for children of opposite-sex couples. The harms inherent in Indianas marriage
discrimination statute are inflicted upon the plaintiffs and their children on a daily basis.
Sexual orientation and the status of lesbians and gay men
103. Sexual orientation bears no relation to an individuals ability to perform in, or contribute
to, society.
104. Sexual orientation is a core, defining trait that is so fundamental to an individuals
identity and conscience that a person may not legitimately be required to abandon it, even if that
were possible.
105. Sexual orientation generally is fixed at an early age and is highly resistant to change
through intervention. No credible evidence supports the notion that such interventions are either
effective or safe; indeed, they often are harmful and damaging. No mainstream mental health
professional organization approves interventions that attempt to change sexual orientation, and
virtually all of them including the American Psychological Association and the American
Psychiatric Association have adopted policy statements cautioning professionals and the public
about treatments attempting to alter sexual orientation.
106. Lesbians and gay men are a discrete and insular minority who have suffered a long and
painful history of discrimination in Indiana and throughout the United States.
107. Ongoing prejudice against lesbians and gay men continues seriously to curtail the
operation of those political processes that might ordinarily be relied upon to protect minorities.
108. Lesbians and gay men lack express statutory protection against discrimination in
22 | P a g e

employment, public accommodations, and housing at the federal level and in more than half the
states, including Indiana; they are the only group in Indiana to have been targeted by the
legislative process to strip them of the right to marry by state constitutional amendment; and they
have been targeted across the nation through the voter initiative process more than any other
group.
The role of the defendants
109. As Indianas chief executive officer, defendant Governor is responsible for the actions of
the numerous state agencies, and the numerous state policies, that disadvantage plaintiffs. These
include policies regarding tax obligations, vital records, and insurance coverage, among others.
110. The Commissioner of the Indiana Department of Revenue is responsible for, among other
things, enforcing Indianas tax laws. In enforcing Indiana Code 31-11-1-1, he has created
Same-Sex Marriage Tax Filing Guidance (attached as Exhibit 2) detailing the manner in which
same-sex couples married out-of-state should file their Indiana income tax returns.
111. The Commissioner of the Indiana State Department of Health is responsible for the
marriage certificate application that prevents same-sex couples from being able to apply for, and
receive, marriage licenses.
112. The defendant county clerks are delegated the power by Indiana law to issue marriage
licenses and to determine if those applying meet the requirements for marriage under Indiana
law.
113. At all times defendants have acted and have refused to act under color of state law.
114. The actions of the defendants are causing plaintiffs irreparable harm for which there is no
adequate remedy at law.
Legal claims
23 | P a g e

115. By failing to allow same-sex couples to marry, or to recognize in Indiana marriages they
enter into in other states, Indiana Code 31-11-1-1 is unconstitutional as impinging on the
fundamental right of marriage, in violation of the Due Process Clause of the Fourteenth
Amendment to the United States Constitution.
116. Same-sex couples and their children are similarly situated to opposite-sex couples and
their children and to the extent that Indiana Code 31-11-1-1 allows opposite-sex couples to
marry, but not same-sex couples, the statute is unconstitutional as violating the Equal Protection
Clause of the Fourteenth Amendment to the United States Constitution.
Claim for relief
WHEREFORE, plaintiffs request that this Court:
a. Accept jurisdiction of this case and set it for hearing at the earliest opportunity.

b. Enter a declaratory judgment that Indiana Code 31-11-1-1 is unconstitutional
for the reasons noted above.

c. Enter a preliminary injunction, later to be made permanent, enjoining defendants
from enforcing Indiana Code 31-11-1-1, thus recognizing the marriages of the plaintiff
same-sex couples who have wed outside of Indiana and allowing the plaintiff same-sex
couples who have not wed to do so in Indiana, enjoining defendant Commissioner of the
Indiana State Department of Revenue to allow same-sex spouses to file state income-tax
returns in the same manner as opposite-sex spouses, and enjoining defendant
Commissioner of the Indiana State Board of Health to change all appropriate forms to
recognize same-sex marriage applications and marriages.

d. Award plaintiffs their costs and reasonable attorneys fees.

e. Award all other proper relief.

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/s/ Kenneth J. Falk /s/ Sean C. Lemieux
Kenneth J. Falk Sean C. Lemieux
No. 6777-49 No. 16778-49
Lemieux Law
/s/ Gavin M. Rose 23 E. 39th St.
Gavin M. Rose Indianapolis, IN 46205
No. 26565-53 317/985-5809
ACLU of Indiana fax: 866/686-2901
1031 E. Washington St. sean@lemieuxlawoffices.com
317/635-4059 Counsel for plaintiffs Fujii,
fax: 317/635-4105 Layne, Betterman, L.M.-C.,
kfalk@aclu-in.org Scott and Rodney Moubray-
grose@aclu-in.org Carrico

James Esseks
Motion for Admission Pro Hac Vice Pending
Chase Strangio
Motion for Admission Pro Hac Vice Pending
American Civil Liberties Union Foundation
125 Broad Street, 18
th
Floor
New York, NY 10004
212/549.2627
fax: 212/549-2650
jesseks@aclu.org
cstrangio@aclu.org

Counsel for plaintiffs Wehrle, Miller, Hasty,
Vallero, MacPherson, Stolen, A.M.-S.

25 | P a g e

Certificate of Service

I certify that a copy of the foregoing was filed electronically on this 3
rd
day of April,
2014. The following parties will be served by operation of the Courts electronic system.

Thomas M. Fisher
Solicitor General
tom.fisher@atg.in.gov

I further certify that a copy of the foregoing was served on the below named persons by
first class U.S. postage, or via certified mail, on this 3
rd
day of April, 2014.

Commissioner, Indiana State Department of Revenue
100 North Senate Ave., Rm. N-248

Clerk, Allen County, Indiana
Allen County Courthouse
715 S. Calhoun St.
Room 200A
Fort Wayne, IN 46802

Clerk, Hamilton County, Indiana
One Hamilton County Square
Suite 157
Noblesville, IN 46060

/s/ Gavin M. Rose
Attorney at Law

1

OFFICER PAMELA LEE, et al., )
)
Plaintiffs, )
)
-vs- )
)
MIKE PENCE, in his official capacity ) Cause No: 1:14-cv-406-RLY-TAB
as Governor of the State of Indiana, et al. )
)
Defendants. )

AMENDED COMPLAINT FOR

Plaintiffs Officer Pamela Lee, Candace Batten-Lee, Officer Teresa
Welborn, Elizabeth Piette, Batallion Chief Ruth Morrison, Martha
Leverett, Sergeant Karen Vaughn-Kajmowicz, Tammy Vaughn-Kajmowicz,
J.S.V., T.S.V. and T.R.V. by their Parents and Next Friends, Sergeant
Karen Vaughn-Kajmowicz and Tammy Vaughn-Kajmowicz, by counsel,
hereby allege as follows:
INTRODUCTION
1Plaintiffs bring this action pursuant to 42 U.S.C. 1983 to
challenge the constitutionality under the United States Constitution of
Indiana Code 31-11-1-1 and its voiding of their marriages to persons of
the same sex, despite plaintiffs' marriages having been lawfully entered
Case 1:14-cv-00406-RLY-TAB Document 48-1 Filed 06/05/14 Page 1 of 17 PageID #: 558 Case 1:14-cv-00406-RLY-TAB Document 52 Filed 06/12/14 Page 1 of 17 PageID #: 581

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into under the laws of a state other than Indiana. Said challenge to
Indiana Code 31-11-1-1 is both facial and as applied to plaintiffs.
Indiana Code 31-1 1-1-1 provides as follows:
(a) Only a female may marry a male. Only a male may marry a
female.
(b) A marriage between persons of the same gender is void in
Indiana even if the marriage is lawful in the place where it is
solemnized.
2. Indiana law provides that "[t]he validity of the marriage, being
governed by the law of the place of its celebration, must be recognized
in Indiana as a matter of comity." Gunter v. Dealer's Transport Company,
120 Ind. App. 409; 91 N.E.2d 377, 379 (Ind. Ct. App. 1950).
3. But under comity principles, Indiana is not required to
recognize a marriage solemnized in another state if the marriage violates
Indiana's public policy. Mason v. Mason, 775 N.E.2d 706, 709 (Ind. Ct.
App. 2002) (while marriage between first cousins under the age of 65 is
void in Indiana, marriage will be recognized by Indiana if the first cousins
marry in a state where such marriages are recognized, as there is no
Indiana statute that articulates a public policy against the marriage of
first cousins).
4. Under Indiana law, the only out-of-state marriages for which
there is a public policy voiding the marriage upon returning to Indiana

3
are those marriages between persons of the same sex and marriages
entered into out of state so as to evade the prohibition of marrying while
mentally incompetent, drunk or on drugs. See, I.C. 31-1 1-8-6.
5. Indiana's law restricting marriage to opposite-sex couples
publicly stigmatizes persons in a same-sex marriage and sends a hideous
message to their children by implying that persons entering into same-
sex marriages are equivalent to marriages entered into by the mentally
incompetent, the drunk or the drugged.
6. Indianas refusal to recognize same-sex marriage
solemnized in another state denies plaintiffs a dignity and status of
immense import. United States v. Windsor, 133 S.Ct. 2675, 2692
(2013). Moreover, they are stigmatized and relegated to a second-class
status by having their respective marriages declared void by Indiana,
which suggests that their relationships are unworthy of recognition. Id.
at 2694.
JURISDICTION AND VENUE
7. This Court has jurisdiction over this matter pursuant to 28
U.S.C. 1331 and 1343 because this suit raises federal questions
pursuant to 42 U.S.C. 1983. Plaintiffs seek both injunctive relief and a
declaratory judgment pursuant to 42 U.S.C. 2201.
8. Venue is proper in the Indianapolis Division of the
Southern District of Indiana under 28 U.S.C. 139 1(b) because

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defendants reside or have their principal offices in this district.
PARTIES
9. Defendant Mike Pence is the Governor of the State of
Indiana. In his official capacity, he is the chief executive officer of
Indiana and is, pursuant to Article V, Section 16 of the Indiana
Constitution, responsible for the faithful execution of the laws of Indiana,
including I. C. 31-11-1-1, the law that excludes same-sex couples
from having their out-of-state marriage recognized in Indiana. Governor
Pence is a person within the meaning of 42 U.S.C. 1983 and was acting
under color of state law at all times relevant to this complaint.
10. Defendants Brian Abbott, Chris Atkins, Ken Cochran,
Steve Daniels, Jodi Golden, Michael Pinkham, Kyle Rosebrough and
Bret Swanson are members of the Board of Trustees of the Indiana Public
Retirement System (INPRS) who administer the 1977 Police Officers
and Firefighters Pension and Disability Fund (Pension Fund) in which
Officers Lee and Welborn, Sergeant Vaughn-Kajmowicz and Chief
Morrison are participants. Defendant Steve Russo is the executive
director of the INPRS. All of these defendants are persons within the
meaning of 42 U.S.C. 1983 and were acting under color of state law
at all times relevant to this complaint.
11. All defendants named herein are sued in their official
capacities. Each of the defendants, and those subject to their

5
supervision, direction, and control, intentionally performed, participated
in, aided and/or abetted in some manner the acts alleged herein,
proximately caused the harm alleged herein, and will continue to injure
plaintiffs irreparably if not enjoined from enforcing I. C. 31-11-1-1.
12. On October 25, 2013, plaintiffs Pamela Lee and Candace
Batten- Lee were lawfully married in California, a state that issues
marriage licenses to same-sex couples. Officer Lee, a military veteran,
has served as a police officer for 22 years, serving the last 19 years with
the Indianapolis Metropolitan Police Department.
13. On or about January 27, 2014, Officer Lee made
application for the designation of plaintiff Candace Batten-Lee as her
spouse and primary beneficiary. The Pension Fund has declined to
recognize Ms. Batten-Lee as the spouse of Officer Lee because it claims it
is prohibited from doing so under I.C. 31-11-1-1.
14. On December 13, 2013, plaintiffs Teresa Welborn and
Elizabeth J. Piette were lawfully married in Hawaii, a state that issues
marriage licenses to same-sex couples. For more than 25 years, Officer
Welborn has served as an officer with the Indianapolis Metropolitan
Police Department.
16. On or about February 20, 2014, Officer Welborn made
application for the designation of plaintiff Elizabeth Piette as her spouse
and primary beneficiary. The Pension Fund has declined to recognize

6
Ms. Piette as the spouse of Officer Welborn because it claims it was
prohibited from doing so under I.C. 31-11-1-1.
17. On September 11, 2013, Chief Morrison and Martha Leverett
were married in Montgomery County, Maryland, a state that issues
marriage licenses to same-sex couples. Chief Morrison served in the
Indianapolis Fire Department for over 27 years before retiring as
battalion chief on December 23, 2013.
18. On or about September 18, 2013, Chief Morrison submitted
her application for retirement benefits and affirmed under oath that her
marital status is that of married and that plaintiff Leverett is her
lawful spouse. Chief Morrison was informed by the INPRS that Leverett
would not be recognized as Chief Morrisons spouse because of I. C.
31-11-1-1.
19. On October 25, 2013, Plaintiffs Karen Vaughn-Kajmowicz
and Tammy Vaughn-Kajmowicz were lawfully married in Iowa, a state that
issues marriage licenses to same-sex couples. Sergeant Vaughn-
Kajmowicz, has served as a police officer for 18 years with the Evansville
Police Department, most recently working in the Narcotics Division.
Plaintiffs Sergeant VaughnKajmowicz and Tammy Vaughn-Kajmowicz are
the parents of J. S. V., T. S. V. and T. R. V., each of whom is under the
age of seven years. In or around October 2013, Sergeant Vaughn-
Kajmowicz made application for the designation of plaintiff Tammy

7
Vaughn-Kajmowicz as her spouse and primary beneficiary. The Pension
Fund has declined to recognize Ms. Vaughn-Kajmowicz as the spouse of
Sergeant Vaughn-Kajmowicz because it claims it is prohibited from doing
so under I.C. 31-11-1-1.
COUNT I
Indianas Refusal to Recognize Plaintiffs Marriages
Violates the Equal Protection Clause
of the Fourteenth Amendment to the United States Constitution

20. Plaintiffs incorporate by reference the allegations of
paragraphs 1- 20.
21. The Equal Protection Clause of the Fourteenth Amendment
to the United States Constitution provides that no State shall . . . deny to
any person within its jurisdiction the equal protection of the laws.
22. By refusing to recognize plaintiffs same-sex marriages that
were lawful in the jurisdictions where those marriages were solemnized,
defendants are depriving them of the numerous legal protections that
are available to opposite sex couples under Indiana law by virtue of
marriage.
23. Indianas refusal to recognize same-sex marriages validly
performed in other states infringes on protections offered by the Equal
Protection Clause of the Fourteenth Amendment and treats plaintiffs
differently because they married persons of the same sex instead of the
opposite sex.
25. Officer Wellborn and Battalion Chief Morrison are vested

8
members and beneficiaries of the Pension Fund.
26. Sergeant Vaughn-Kajmowicz, Officer Welborn and Officer Lee
are active duty police officers who would be covered by the provisions of
the Pension Fund if they are killed in the line of duty.
27. Sergeant Vaughn-Kajmowicz, Officer Welborn and Officer Lee
are active duty police officers who would be covered by the provisions of
the Pension Fund if they were to die while on active duty.
28. Under the Pension Fund, if a police officer dies in the line of
duty, then the "surviving spouse is entitled to a monthly benefit during the
spouse's lifetime." I.C. 36-8-8-14.1. It is not necessary that the
police officer be vested in the Pension Fund to be covered by this
provision.
29. Defendants recognize the spouses of police officers
married to persons of the opposite sex and enter those spouses as spouses
in the officers records maintained by the Pension Fund. If such officers
die in the line of duty, their opposite-sex spouse is entitled to be paid a
monthly benefit during the spouse's lifetime.
30. Because of I. C. 31-11-1-1, defendants have refused to enter
the same-sex spouses of Sergeant Vaughn-Kajmowicz, Officer Welborn
and Officer Lee as designated surviving spouse beneficiaries in the
officers' records, making their spouses ineligible to claim this benefit if
Sergeant VaughnKajmowicz, Officer Lee or Officer Welborn should die in

9
the line of duty.
31. Under the Pension Fund, if a police officer is married to a
person of the opposite sex and dies in the line of duty, the Pension Fund
will pay that officer's spouse a lump sum, tax free, of $150,000.00. See
I.C. 36-8-8-20(c).
32. Because of I. C. 31-11-1-1, defendants have refused to
designate the spouses of Sergeant Vaughn-Kajmowicz, Officer Lee and
Officer Welborn as designated spouse beneficiaries in the officers'
records as maintained by the Pension Fund, making their spouses
ineligible to claim the lump sum payment should Sergeant Vaughn-
Kajmowicz, Officer Lee or Officer Welborn die in the line of duty.
33. Under the Pension Fund, if a police officer is married to a
person of the opposite sex and dies while on active duty, the Pension
fund will pay that officer's surviving spouse a monthly benefit. See I.C.
36-8-8-13.8(c).
34. Because of I. C. 31-11-1-1, defendants have refused to
designate the spouses of Sergeant Vaughn-Kajmowicz, Officer Lee and
Officer Welborn as designated spouse beneficiaries, making them
ineligible to claim the monthly benefit should Sergeant Vaughn-
Kajmowicz, Officer Lee or Officer Welborn die while on active duty.
35. Should Sergeant Vaughn-Kajmowicz die while on active
duty, her dependent children will receive the monthly benefit but as the

10
surviving mother of the children will not receive a benefit, the total of
the family's monthly benefit will be significantly less than a similarly
situated family where the officer's spouse was of the opposite sex.
36. Under the Pension Fund, if a retired firefighter dies while
receiving retirement, the "surviving spouse is entitled to a monthly
benefit." I.C. 36-8- 8-13.8. If a retired firefighter is married to a person
of the opposite sex, the Pension Fund will pay the spouse of that retired
firefighter a monthly benefit.
37[a]. Because of I. C. 31-11-1-1, defendants have refused to
designate the spouse of retired Chief Morrison as a spouse beneficiary
thereby making her ineligible to claim the monthly benefit should she be
predeceased by Chief Morrison.
37[b]. Without certain knowledge of what benefits will be made
available to their surviving spouse, plaintiffs cannot do necessary
financial and estate planning. If plaintiffs wish to provide for the same
level of benefits provided by the pension fund to surviving spouses who
are the opposite sex of the deceased officer or firefighter, they must pay an
additional amount to private investment plans, a financial burden not
imposed upon same opposite-sex couples.
38[a]. In the case of the children, J. S. V., T. S. V. and T. R. V., while
the children will qualify for a monthly benefit, their stay-at-home mother,
Tammy Vaughn-Kajmowicz, will not receive a benefit. Thus, her burden to

11
care for her children as the surviving spouse of Sergeant Vaughn-
Kajmowicz will be more costly and difficult than the financial burden of
an opposite-sex spouse of a deceased police officer with children.
38[b]. Additionally, by refusing to recognize the plaintiffs' lawful
marriages from other states, Indiana law as administered and enforced
by defendants deprives same-sex married couples of numerous legal
protections that are available to opposite-sex married couples by virtue
of marriage. By way of example:
a. A widow or widower of an opposite-sex spouse is entitled to 50%
to 100% of his or her deceased spouses estate if the spouse
died intestate. I. C. 29-1-2-1(b). Because of I. C. 31-11-1-
1, same- sex surviving spouses in this situation receive
nothing.
b. If an opposite-sex spouse becomes incapacitated, her spouse
may be ordered by a court to support that spouse during the
period of incapacity. I. C. 31-15-7-2. Because of I. C. 31-
11-1-1, plaintiffs are not afforded this protection by Indiana
law.
c. Because of I. C. 31-11-1-1, Indianas divorce laws do not apply
to same-sex spouses.
d. Because of I. C. 31-11-1-1, Indiana requires same-sex
couples who file federal returns with a married filing status

12
to file their Indiana income tax returns with a filing status of
single, thus requiring plaintiffs to complete a sample federal
return entering information as if they are each single, as a basis
for their Indiana return, at additional cost and
inconvenience.
39. Same-sex married couples are excluded from these and
many other legal protections and obligations provided for opposite-sex
married couples under Indiana law. For example, the publication "More
than Just a Couple - A Compendium of the Rights and Responsibilities
of Civil Marriage in the Indiana Code" was compiled by the LGBT project
at the Indiana University Maurer School of Law and identifies 614
different provisions in the Indiana Code that "are legally and
linguistically tied to civil marriage, family and spousal relationships."
http://www.indianaequalityaction.org/wordpress/wp/content/uploads/
2012/11/More-Than-Just-a-Couple.pdf (Last viewed on Mar. 4, 2014).
Because plaintiffs are married to persons of the same sex, they
cannot avail themselves of any of the protections, rights or responsibilities
that Indiana imposes upon persons who are married to someone of the
opposite sex.
40. By refusing to recognize the plaintiffs' lawful, out-of-
state marriages, Indiana, acting through the defendants and pursuant to
I. C. 31- 11-1-1, disadvantages, harms and stigmatizes plaintiffs solely

13
because their spouses are of the same sex instead of the opposite sex.
41. Because defendants refuse to recognize the plaintiffs' lawful
out-of- state marriages by virtue of I. C. 31-11-1-1, their children are
harmed and stigmatized by the treatment of their family because it is
headed by two persons of the same sex versus a family headed by a
man and a woman.
42. I. C. 31-1 1-1-1 tells the plaintiffs and their children that their
marriages -- and their families -- are not valued in the same manner as
opposite-sex marriages or single-parent families.
43. By refusing to recognize the plaintiffs' lawful out-of-state
marriages, defendants, acting pursuant to I. C. 31-11-1-1, deny plaintiffs
significant legal protections, benefits and a dignity and status of enormous
import. Windsor, 133 S. Ct. at 2692.
44. By refusing to recognize plaintiffs marriages validly
entered into elsewhere, defendants, acting under color of I. C. 31-11-1-
1, deprive plaintiffs of the rights secured by the Equal Protection Clause
of the Fourteenth Amendment to the United States Constitution.
COUNT II
Indianas Refusal to Recognize Plaintiffs Marriages
Violates the Due Process Clause of the Fourteenth Amendment
to the United States Constitution

paragraphs 1- 44.
46. The Fourteenth Amendment to the United States Constitution

14
guarantees to all citizens due process of law.
47. Marriage is a fundamental right. Choices regarding marriage,
like choices about other aspects of family life, are a central part of the
liberty protected by the Due Process Clause.
48. Plaintiffs, once they have been validly married in a state
which authorizes same-sex marriage, have a fundamental right to remain
married and a fundamental right to have their marriage recognized.
49. Plaintiffs, as persons in valid, lawful marriages have a
liberty interest in their marital status that is protected by the Due
Process Clause of the Fourteenth Amendment, regardless of where they
choose to live in the United States as a married couple.
50. Plaintiffs, as persons in valid, lawful marriages have a
protected property interest in maintaining their lawful marital status
and the comprehensive protections and mutual obligations that
marriage provides.
51. Plaintiffs also have a fundamental right to preserve their
lawful marital status as they choose to travel in and out of Indiana.
52. Ind. Code 31-1 1-1-1 denies the plaintiffs their
fundamental right to have their lawful marriages recognized and their
fundamental right to remain married by voiding, without any
semblance of due process, the marriages they validly entered into in
jurisdictions other than Indiana and thus denies them the myriad

15
benefits, privileges and rights of marriage available under Indiana law.
53. The voiding by defendants acting pursuant to I. C. 31-1 1-1-
1 of plaintiffs' marriages lawfully entered into in jurisdictions other than
Indiana denies the plaintiffs substantive due process by infringing upon
their fundamental rights to have their lawful marriages recognized and
to remain married and thus denies them the myriad benefits, privileges
and rights of marriage available under Indiana law.
54. Defendants refusal to recognize plaintiffs respective
marriages entered into in other jurisdictions where those marriages are
valid and lawful, and its voiding of those marriages by operation of law,
violates the Due Process Clause.
28 U.S.C. 2201 and 2202;
Federal Rules of Civil Procedure, Rules 57 and 65

paragraphs 1- 54.
56. This case presents an actual controversy because
defendants present and ongoing denial of equal treatment to plaintiffs;
the infringement of plaintiffs' fundamental rights; and the denial of due
process to plaintiffs; and, an infringement of plaintiffs rights promised
by the Full Faith and Credit Clause, subjects them to serious and
immediate harms, including ongoing emotional distress and stigma,
warranting the issuance of a judgment declaring that I. C. 33-11-1-1

16
violates the Due Process Clause and/or the Equal Protection Clause of
the Fourteenth Amendment to the United States Constitution.
57. A favorable decision enjoining defendants from further
constitutional violations, and mandating them to recognize plaintiffs'
marriages, would redress and prevent the irreparable injuries to plaintiffs
which they have identified, and for which they have no adequate remedy
at law or in equity.
PRAYER FOR RELIEF
WHEREFORE, plaintiffs respectfully request that this Court:
a. Enter a declaratory judgment that Ind. Code 31-1 1-1-1 on
its face and as applied to plaintiffs violates the Equal Protection Clause of
the Fourteenth Amendment to the United States Constitution;
b. Enter a declaratory judgment that Ind. Code 31-1 1-1-1 on
its face and as applied to plaintiffs violates the Due Process Clause of
the Fourteenth Amendment to the United States Constitution;
c. Enter a declaratory judgment that Ind. Code 31-1 1-1-1
on its face and as applied to plaintiffs violates the Full Faith and Credit
Clause of the United States Constitution;
d. Enter a permanent injunction directing defendants to
recognize plaintiffs marriages as valid and lawful within the State of
Indiana and to administer the Pension Fund so as to provide the same
benefits for all married couples, regardless of whether the couples are of

17
the opposite sex or the same sex;
e. Award plaintiffs the costs of suit, including reasonable
attorneys fees under 42 U.S.C. 1988; and
f. Enter all further relief to which plaintiffs may be justly
entitled.

Respectfully submitted,

/s/Karen Celestino-Horseman /s/ William R. Groth
Karen Celestino-Horseman William R. Groth
Of Counsel, Austin & Jones, P.C. Fillenwarth Dennerline Groth
One N. Pennsylvania St., Ste. 220 & Towe, LLP
Indianapolis, IN 46204 429 E. Vermont St., Ste. 200
Tel: (317) 632-5633 Indianapolis, IN 46202
Fax: (317) 630-1040 Tel: (317) 353-9363
E-mail: Karen@kchorseman.com Fax: (317) 351-7232
E-mail: wgroth@fdgtlaborlaw.com

/s/ Mark W. Sniderman /s/ Kathleen M. Sweeney
Mark W. Sniderman Kathleen M. Sweeney
Sniderman Nguyen, LLP Sweeney Law Group, LLC
47 S. Meridian St., Ste. 400 141 E. Washington St., Ste. 225
Indianapolis, IN 46204 Indianapolis, IN 46204
Tel: (317) 361-4700 Tel: (317) 491-1050
Fax: (317) 464-5111 Fax: (317) 491-1043
E-mail: mark@snlawyers.com E-mail: ksween@gmail.com

/s/ Robert A. Katz* /s/ Kelly R. Eskew
Robert A. Katz Kelly R. Eskew
Indiana University 6459 Central Avenue
McKinney School of Law Indianapolis, IN 46220
530 W. New York St., Room 349 Email: kellyreskew@gmail.com
E-mail: robkatz87@gmail.com
*Pro Hac Vice Admission Requested
1


FULLER; BONNIE EVERLY and
LINDA JUDKINS; DAWN LYNN
CARVER and PAMELA RUTH ELEASE
EANES; HENRY GREENE and GLENN
FUNKHOUSER, individually and as
parents and next friends of C.A.G.; and
AMY SANDLER and NIKOLE
QUASNEY,

Plaintiffs,

vs.

PENNY BOGAN, in her official capacity
as BOONE COUNTY CLERK; KAREN
M. MARTIN, in her official capacity as
A. BROWN, in his official capacity as
LAKE COUNTY CLERK; PEGGY
BEAVER, in her official capacity as
HAMILTON COUNTY CLERK;
WILLIAM C. VANNESS, in his official
capacity as the COMMISSIONER,
INDIANA STATE DEPARTMENT OF
HEALTH; and GREG ZOELLER, in his
official capacity as INDIANA
ATTORNEY GENERAL,

Defendants.

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1:14-cv-00355-RLY-TAB

ENTRY ON PLAINTIFFS MOTION FOR A TEMPORARY RESTRAINING
ORDER
Plaintiffs, Amy Sandler and Nikole (Niki) Quasney, ask this court to grant a
temporary restraining order requiring the state of Indiana to recognize their out-of-state
2

marriage. The court held a hearing on April 10, 2014, and issued a bench ruling
GRANTING the temporary restraining order, which expires 28 days from that date, on
May 8, 2014. Consistent with that ruling, the court issues the following written order.
I. Background
Plaintiffs, Niki Quasney and Amy Sandler, have been in a loving and committed
relationship for more than thirteen years. (Declaration of Nikole Quasney (Quasney
Dec.) 2, Filing No. 32-2). They have two very young children, A.Q.-S. and M.Q.-S.
(Id. at 2). On June 7, 2011, Amy and Niki entered into a civil union in Illinois. (Id. at
3). Then, on August 29, 2013, they were married in Massachusetts.
1
(Id.).
In late May of 2009, Niki was diagnosed with Stage IV Ovarian cancer. (Id. at
9). She and Amy immediately flew to Chicago for treatment, and just a couple of days
later in June 2009, surgeons removed over 100 tumors throughout Nikis abdomen,
including her liver, kidneys, diaphragm, and bladder. (Id. at 11). At that time, the
median survival rate for her cancer was five years. (Id. at 5). Ever since, Niki has been
battling her cancer with the most aggressive treatments she can endure while maintaining
some quality of life.
2
(Id. at 7). Every three weeks, Nikis doctor performs a CA-125
test, which is a blood test to check the tumor marker for ovarian cancer. (Supplemental
Declaration of Nikole Quasney (Quasney Supp. Dec.) 1; Hearing Exhibit C). Three
weeks ago, the test showed Nikis level was near normal at 37. (Id.). Unfortunately, on

1
Massachusetts allows for same-sex couples to marry.
2
Niki went into remission in July 2010. (Quasney Dec. 13). She had more tumors removed in
September of 2011. (Id. at 18). In May of 2012, Niki again was in remission. (Id. at 20).
She completed her most recent treatment of chemotherapy approximately four weeks ago.
(Quasney Supp. Dec. 4).
3

April 9, 2014, that level soared to 106. (Id. at 2). On Wednesday, April 16, 2014, Niki
will begin a new chemotherapy treatment. (Id. at 4).
Because Niki is fighting a fatal disease and is nearing the five year survival rate,
she and Amy requested that the court issue a temporary restraining order and/or
preliminary injunction preventing Indiana from enforcing Indiana Code 31-11-1-1(b) as
applied against them and requiring the state, through the Defendants, to recognize Niki as
married to Amy on her death certificate.
II. Standard
The court has the power to issue a temporary restraining order (TRO) under
Federal Rule of Civil Procedure 65. The court may grant a TRO if the movant: (1) has
some likelihood of succeeding on the merits, (2) has no adequate remedy at law, and (3)
will suffer irreparable harm if the order is denied. See Abott Labs. v. Mead Johnson &
Co., 971 F.2d 6, 11 (7th Cir. 1992). If these three elements are met, the court will
consider any irreparable harm to the non-movant and balance it against the harm to the
movant. See id. at 12. The Seventh Circuit evaluates the balance on a sliding scale so
that the more likely it is the plaintiff will succeed on the merits, the less balance of
irreparable harm need weigh towards its side. Kraft Foods Grp. Brands LLC v. Cracker
Barrel Old Country Store, Inc., 735 F.3d 735, 740 (7th Cir. 2013).
III. Discussion
A. Standing for Temporary Restraining Order
Defendants first argued that the Plaintiffs are in actuality seeking a declaratory
judgment rather than a TRO. According to Defendants, the court cannot grant a TRO
4

here because the Plaintiffs suffer no cognizable Article III harm that a restraining order
can remedy. The court disagrees with Defendants. To satisfy Article III, the injuries
alleged may be slight. As the United States Supreme Court said, [a]n identifiable trifle
is enough for standing to fight out a question of principle; the trifle is the basis for
standing and the principle supplies the motivation. Harris, 927 F.2d at 1406 (finding a
cognizable injury when plaintiff mightily strives to avoid any visible contact with the
Rolling Meadows seal by utilizing alternative travel routes) (quoting United States v.
SCRAP, 412 U.S. 669, 689 n. 14 (1972). The Plaintiffs here have shown cognizable
injuries that a TRO can remedy because Niki drives across state lines to receive treatment
from a hospital that will recognize her marriage, Niki and Amy have been denied a
family fitness membership, and they suffer anxiety, sadness, and stress about the non-
recognition of their marriage and what that means if and when Niki succumbs to her
disease. (Quasney Dec. 24, 25, 26, 30; Quasney Supp. Dec. 7).
Additionally, Defendants argue that the dignitary harm suffered by Plaintiffs is not
cognizable under Article III of the United States Constitution, and therefore an adequate
remedy at law need not exist for that harm and it cannot qualify as irreparable. See
Harris v. City of Zion, Lake County, Ill., 927 F.2d 1401, 1405 (7th Cir. 1991) (the
requirement that the plaintiff allege an injury-in-fact, whether economic or non-
economic, excludes simple indignation as a basis for Article III standing.). The court
again disagrees and finds that the deprivation of the dignity of a state sanctioned marriage
is a cognizable injury under Article III. See Windsor, 133 S.Ct. at 2694. In Windsor,
Justice Kennedy emphasized the dignitary harms suffered as a result of the Defense of
5

Marriage Act (DOMA). For example, he noted that [t]he differentiation demeans the
couple, whose moral and sexual choices the Constitution protects. . . . And it humiliates
tens of thousands of children now being raised by same-sex couples. Id. (citing Texas v.
Lawrence, 539 U.S. 558 (2003)). He stressed the fact that the states wished to confer
dignity on certain marriages that the federal government, through DOMA, was taking
away by not recognizing the marriages. See id. Thus, the court finds that Windsor
recognized and remedied a dignitary injury. Finding that a TRO is an appropriate
remedy, the court now turns to the criteria for a TRO.
B. Temporary Restraining Order
i. Some Likelihood of Success on the Merits
To satisfy the first requirement, the Plaintiffs chance of success must be more
than negligible. See Brunswick Corp. v. Jones, 784 F.2d 271, 275 (7th Cir. 1986). In
support of their position that Indiana Code 31-11-1-1(b) is unconstitutional, Plaintiffs rely
on the wave of recent cases finding that similar state statutes and state constitutional
amendments violate the Equal Protection Clause and the Due Process Clause. See Tanco
v. Haslam, No. 3:13-cv-01159, 2014 WL 997525 (M.D. Tenn. Mar. 14, 2014); De Leon
v. Perry, No. SA-13-CA-00982, 2014 WL 715741 (W.D. Tex. Feb. 26, 2014); Lee v. Orr,
No. 1:13-cv-08719, 2014 WL 683680 (N.D. Ill. Feb. 21, 2014); Bostic v. Rainey, No.
2:13cv0395, 2014 WL 561978 (E.D. Va. Feb. 13, 2014); Bourke v. Beshear, No.3:13-cv-
750-H, 2014 W.D. Ky. Feb. 12, 2014); Kitchen v. Hubert, 961 F. Supp. 2d 1181 (D. Utah
2013); Bishop v. United States ex. rel. Holder, No. 04-cv-848, 2014 WL 116013 (N.D.
Okla. Jan. 14, 2014). In particular, Plaintiffs rely on two cases where temporary relief
6

was granted when one of the spouses was suffering from a fatal disease. See Obergefell
v. Kasich, No. 1:13-cv-501, 2013 WL 3814262 (S.D. Ohio Jul. 22, 2103) (granting TRO
ordering Ohio to recognize the marriage of a same-sex couple where one spouse was
terminally ill); see also Gray v. Orr, No. 13C8449, 2013 WL 6355918 (N.D. Ill. Dec. 5,
2013) (granting a TRO to allow same-sex couple to marry before the effective date of
newly enacted statute authorizing same-sex marriages because one partner was terminally
ill). The court finds these decisions to be particularly persuasive.
Defendants counter that the authority of the states to define marriage can be traced
back to this nations founding, and that the district court opinions favoring Plaintiffs
position have misunderstood United States v. Windsor, 133 S.Ct. 2675 (2013).
According to Defendants, there is no right to have ones marriage recognized; rather,
recognition is merely a matter of comity that is left to the states. In support, Defendants
rely on a case where Indiana did not recognize the marriage between an uncle and niece
from Russia; however, the court notes that the parties did not contest that their marriage
was void on appeal. See Sclamberg v. Sclamberg, 41 N.E.2d 801 (Ind. 1942).
Defendants concede that Indiana will recognize marriages between first cousins, even
though such a marriage is generally prohibited within the state. Therefore, the court finds
that as a general rule, Indiana recognizes valid marriages performed in other states.
The court agrees with Defendants that marriage and domestic relations are generally
left to the states. Nevertheless, the restrictions put in place by the state must comply with
the United States Constitutions guarantees of equal protection of the laws and due
process. See Windsor at 2691 (citing Loving v. Virginia, 388 U.S. 1 (1967) (invalidating
7

Virginias statute banning marriages based on race). The Equal Protection Clause
requires states to treat people equally under the law; if the state wishes to differentiate
between people and make them unequal, then it must have at least a legitimate purpose.
According to Defendants the state of Indiana does not recognize same-sex marriages
performed elsewhere because:
it calls into question the States own philosophical understanding of the
nature of government-recognized marriage, the States traditional marriage
definition being predicated on the idea that we want to attract and then
regulate couples that may unintentionally procreate for the sake of the
children.
Additionally, [i]t creates a social norm and relieves burdens on the State that may occur
in the event that unwanted children are uncared for. . . . Its the idea of ameliorating the
consequences of unintended children. This philosophy on marriage, however, does not
distinguish Indiana from the wave of recent cases finding similar statutes to be
unconstitutional. See Bishop v. U.S. ex rel. Holder, 962 F. Supp. 2d 1252 (N.D. Okla.
2014)(finding there is no rational link between excluding same-sex marriages and
steering naturally procreative relationships into marriage, in order to reduce the
number of children born out of wedlock and reduce economic burdens on the State); see
also DeBoer v. Snyder, No.1:12-cv-10285, 2014 WL 1100794, *2 (E.D. Mich. Mar. 21,
2014) (noting that prohibiting same-sex marriages does not stop [gay men and lesbian
women] from forming families and raising children).
The court finds that this cannot be the entire rationale underlying the traditional
marriage. Additionally, this philosophy is problematic in that the state of Indiana
generally recognizes marriages of individuals who cannot procreate. For example,
8

Indiana recognizes the marriages of opposite-sex couples that occurred in Florida that are
well past their procreative years.
3
This philosophy does not apply to them, so under the
states philosophy, their marriage should not be recognized here. Further, before
recognizing an out-of-state marriage on a death certificate, the state of Indiana does not
inquire whether the couple had the ability to procreate unintentionally.
Therefore, on this record, the court finds there will likely be insufficient evidence
of a legitimate state interest to justify the singling out of same-sex married couples for
non-recognition. The court thus finds that Plaintiffs have at least some likelihood of
success on the merits because the principal effect of Indianas statute is to identify a
subset of state-sanctioned marriages and make them unequal. Windsor, 133 S.Ct. at
2694.
ii. Availability of an Adequate Remedy at Law
Defendants argue that adequate remedies at law exist for Plaintiffs. For example,
assuming arguendo the state eventually does recognize same-sex marriages, if Niki
should pass away prior to the state recognizing their marriage, Amy could receive an
amended death certificate. Additionally, Amy and Niki can create a health care directive,
which the hospitals must honor, and a last will and testament, which the courts will
enforce. The court finds that these are not adequate remedies because they do not address
survivor benefits and the dignitary harm Plaintiffs suffer. Additionally, state recognition

3
On the other hand, the state of Indiana did not recognize the marriage of an uncle and niece
who had two children together. This marriage had the potential for unintentional procreation, yet
it was a void marriage. See Sclamberg, 41 N.E.2d at 802.
9

of their marriage brings financial benefits, health care decision benefits, and death
benefits.
4

iii. Irreparable Harm if the Order is Denied
The court finds Plaintiffs suffer a cognizable and irreparable harm stemming from
the violation of their constitutional rights of due process and equal protection. As the
Seventh Circuit noted, [t]he existence of a continuing constitutional violation constitutes
proof of an irreparable harm. Preston v. Thompson, 589 F.2d 300, 303 n. 3 (7th Cir.
1978); see also Does v. City of Indianapolis, No. 1:06-cv-865-RLY-WTL, 2006 WL
2927598, *11 (S.D. Ind. Oct. 5, 2006) (quoting Cohen v. Coahoma Cnty., Miss., 805 F.
Supp. 398, 406 (N.D. Miss. 1992) for the proposition that [i]t has been repeatedly
recognized by federal courts at all levels that violation of constitutional rights constitutes
irreparable harm as a matter of law.). A further showing of irreparable harm often is not
required when monetary damages are not at stake. See Back v. Carter, 933 F. Supp. 738,
754 (N.D. Ind. 1996) (internal quotation and citation omitted). The rule that courts do
not require a further showing of irreparable harm is based on the belief that equal
protection rights are so fundamental to our society that any violation of these rules causes
irreparable harm. Id.
iv. Balancing of Harms
Finding that the Plaintiffs have met the criteria for a temporary restraining order, the
court must balance the irreparable harm that Defendants may suffer against Plaintiffs

4
These death benefits include an elective share of Nikis estate regardless of her will and
possibly the ability to receive Social Security benefits. See Ind. Code 29-1-3-1 and 20 C.F.R.
404.345. These are benefits that Niki and/or Amy cannot receive via contractual agreements, but
only through Indianas recognition of their marriage.
10

irreparable harm. Defendants did not allege that they or the state would suffer irreparable
harm if the court granted the TRO. Additionally, as this court and others have previously
held, the state experiences no harm when it is prevented from enforcing an
unconstitutional statute. Therefore, the court finds that the balance weighs in favor of
Niki and Amy.
C. Length of the TRO
According to Federal Rule of Civil Procedure 65(b)(2), a TRO may last up to 14 days
or be extended for another 14 days to a total of 28 days for good cause. The court finds
that good cause exists here to extend the expiration of this ruling to twenty-eight days
from today. These reasons include judicial economy (the court is adjudicating four other
cases challenging Indiana Code 31-11-1-1) and fairness to those four other cases whose
dispositive motions are due on April 21, 2014.
IV. Conclusion
For the reasons set forth above, the court GRANTS Plaintiffs Motion for a
Temporary Restraining Order. (Filing No. 31). Defendants and all those acting in
concert are ENJOINED from enforcing Indiana statute 31-11-1-1(b) against
recognition of Plaintiffs Niki Quasneys and Amy Sandlers valid out-of-state marriage,
and therefore, the state of Indiana must recognize only their marriage. In addition, should
Ms. Quasney pass away in Indiana, the court orders William C. VanNess II, M.D., in his
official capacity as the Commissioner of the Indiana State Department of Health and all
those acting in concert, to issue a death certificate that records her marital status as
married and lists Plaintiff Amy Sandler as the surviving spouse. This order shall
11

require that Defendant VanNess issue directives to local health departments, funeral
homes, physicians, coroners, medical examiners, and others who may assist with the
completion of said death certificate explaining their duties under the order of this court.
This order is set to EXPIRE on May 8, 2014.

SO ORDERED this 18th day of April 2014.

_________________________________
RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
Southern District of Indiana

Distributed Electronically to Registered Counsel of Record.

__________________________________
1
Judy Farris Mason, CSR

MARILYN RAE BASKIN and ESTHER )
FULLER; BONNIE EVERLY and LINDA )
JUDKINS; DAWN LYNN CARVER and )
PAMELA RUTH ELEASE EANES; )
HENRY GREENE and GLENN )
FUNKHOUSER, individually and )
as parents and next friends of )
C.A.G.; and NIKOLE QUASNEY and )
AMY SANDLER, individually and )
as parents and next friends of )
A.Q.-S. and M.Q.-S., )
)
Plaintiffs, )
)
vs. ) 1:14-cv-00355-RLY-TAB
) Evansville, Indiana
PENNY BOGAN, in her official )
capacity as BOONE COUNTY )
CLERK; KAREN M. MARTIN, in her )
official capacity as PORTER )
COUNTY CLERK; MICHAEL A. BROWN, )
in his official capacity as )
LAKE COUNTY CLERK; PEGGY )
BEAVER, in her official )
capacity as HAMILTON COUNTY )
CLERK; WILLIAM C. VANNESS II, )
M.D., in his official capacity )
as the COMMISSIONER, INDIANA )
STATE DEPARTMENT OF HEALTH; )
and GREG ZOELLER, in his )
official capacity as INDIANA )
ATTORNEY GENERAL, )
) May 2, 2014
Defendants. )

TRANSCRIPT OF HEARING ON PLAINTIFFS' MOTION FOR PRELIMINARY
INJUNCTION AND SUMMARY JUDGMENT ORAL ARGUMENT

BEFORE THE HONORABLE RICHARD L. YOUNG
UNITED STATES DISTRICT COURT CHIEF JUDGE
2
Court Reporter: Judy Farris Mason, CSR
Official Court Reporter
318 Federal Building
Evansville, Indiana 47708
Tel. (812) 459-9805
Email: Judy_Mason@insd.uscourts.gov

Proceedings reported by stenotype.
Transcript produced by computer-aided transcription.
3
A P P E A R A N C E S:

FOR PLAINTIFFS NIKOLE QUASNEY AND AMY SANDLER:

Camilla B. Taylor, Esquire
Lambda Legal Defense and Education
Fund
3500 Oak Lawn Avenue
Suite 500
Dallas, Texas 75219
Telephone: (214)219-4455

Jordan Heinz, Esquire
Dimitri Tishyevich, Esquire
Kirkland & Ellis LLP - Chicago
300 North LaSalle
Telephone: (312)663-4413

FOR DEFENDANTS GREG ZOELLER
and WILLIAM C. VANNESS II, M.D.:

Thomas M. Fisher, Esquire
302 West Washington Street
IGCS - 5th Floor
Indianapolis, Indiana 46204
Telephone: (317)232-6255

FOR PEGGY BEAVER, HAMILTON COUNTY CLERK:

Darren J. Murphy, Esquire
Howard & Associates
694 Logan Street
Noblesville, Indiana 46060
Telephone: (317)773-4212

FOR PENNY BOGAN, BOONE COUNTY CLERK:

Robert V. Clutter, Esquire
Clark Quinn Moses & Clark
One Indiana Square
Suite 2200
Indianapolis, Indiana 46204
Telephone: (317)637-1321

60
example, intestacy when there are many spouses? All of these
things would be very different in a polygamy challenge.
The State says that the sole purpose of the ban is to
connect biology with legal reality, I believe. I'm sorry if
I'm misquoting that. I might have been writing too fast and
missed it.
MR. FISHER: Responsible procreation.
MS. TAYLOR: Responsible procreation. Excuse me.
THE COURT: Mr. Fisher says there's been no
alternative to the responsible procreation as a rationale for
marriage, not by you, not by any Court that has looked at this
issue. Is there an alternative rationale?
MS. TAYLOR: We do, Your Honor. We do posit what we
think is an alternative with respect to what motivated the
marriage ban. That alternative is that the sole purpose is, to
quote Windsor, to impose a disadvantage, a separate status and
a stigma upon all who enter into same-sex marriages.
With respect to the alternative with what constitutes
rationale for marriage --
THE COURT: I read in a brief somewhere that -- I
believe it was one of your briefs, plaintiffs' briefs -- that
quoted Justice Shepard in his book that he edited on the law of
Indiana, history of the law of Indiana, that he stated that the
purpose of the statute was to ban homosexual marriage. I may
be getting the quote wrong, but do you know what I'm talking
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about?
MS. TAYLOR: Yes, Your Honor.
THE COURT: I looked that up or I had someone look
that up for me, and that's really not what he said, is it?
Were you paraphrasing?
MS. TAYLOR: I'm not sure that was in our brief, Your
Honor, so I'm not sure I can completely recollect the exact
quote.
THE COURT: Well, it could have been in another brief,
as well, but are you familiar with that?
MS. TAYLOR: Our position, Your Honor, is that the
marriage ban was passed in the wake of litigation in Hawaii,
which is something that the defendant agrees with us about, in
order to make sure that same-sex couples who marry in Hawaii
would not be respected in Indiana as having entered into valid
marriages and that the entire purpose of the ban is evident on
its face as a purpose of excluding lesbian and gay couples from
marriage. And you can infer what a purpose is from the absence
of any legitimate rationale for the marriage ban. That's Romer
and Windsor. And you can also tell what the purpose is --
THE COURT: If you have multiple rationales, could we
have responsible procreation and exclusion?
MS. TAYLOR: Your Honor, the ban doesn't actually
serve the purpose of responsible procreation in any way, and
when defendants were asked, "Well, what about the" --
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THE COURT: In any way?
MS. TAYLOR: In any way. There's no connection
between any type of incentive to rear children well or to
procreate and excluding lesbian and gay couples from marriage.
And when defendants were asked specifically about married
couples who choose not to procreate, the defendants said,
"Well, they provide good role models for the optimal socially
expected behavior for parents and spouses so that those who do
unintentionally procreate will be better off from observing
them."
Well, Your Honor, we believe that Glenn and Henry here
provide very good role models and that the State of Indiana
agreed with us when they first determined that they should be
licensed as foster parents and then placed a child in their
home to fulfill their dreams of being fathers and then granted
an adoption decree determining that their home was in their
child's best interest. They are wonderful role models for
optimal behavior for parents and spouses.
With respect, I guess, to Your Honor's question about what
is the rationale for marriage if it's not about caring for
unintentionally procreated children, I would actually defer to
one of our clients who explained what marriage means to her, as
I think that probably says it best. She writes, "Without Niki
we would not have our family. I will forever be grateful for
every moment our kids have with her and that I have with her.
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I don't know how she does it. Even on the days when I know she
is really sick and really tired and I have left the countertops
a mess, I wake up in the morning, and the house is spotless.
She doesn't slow down, and she doesn't miss a beat. She picks
up where I leave off. I love her. I want her to be recognized
as my legal spouse."
And while all of us who are married might put it slightly
differently, we might have different examples to use to show
what marriage means to us and why it is so important to us, I
think that there's something timeless and universal about our
experience in choosing to marry that one unique and
irreplaceable person who completes us. And I think that's what
the Courts have recognized in their liberty jurisprudence.
So if there are no further questions, thank you, Your
Honor.
THE COURT: Thank you.
Okay. We'll do our best to get something out here in short
order. The arguments today were very's helpful to the Court,
very well presented. Thank you, and I compliment you on your
presentations.
THE CLERK: All rise. Court is adjourned.
(Court adjourned at 11:26 a.m.)
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CERTIFICATE OF REPORTER

I, Judy Farris Mason, Official Reporter for the United
States District Court, Southern District of Indiana, 318
Federal Building, Evansville, Indiana 47708, hereby certify
that the foregoing transcript constitutes a true, full, and
correct transcript of my shorthand notes taken of the
proceedings hereinbefore entitled and reduced to typewriting by
computer to the best of my ability.

s/Judy Farris Mason____________ May 8, 2014
1


FULLER; BONNIE EVERLY and LINDA
JUDKINS; DAWN LYNN CARVER and
PAMELA RUTH ELEASE EANES;
HENRY GREENE and GLENN
FUNKHOUSER, individually and as
parents and next friends of C.A.G.;
NIKOLE QUASNEY, and AMY
SANDLER, individually and as parents and
next friends of A.Q.-S. and M.Q.-S.,

Plaintiffs,

vs.

PENNY BOGAN, in her official capacity
as BOONE COUNTY CLERK; KAREN
M. MARTIN, in her official capacity as
A. BROWN, in his official capacity as
LAKE COUNTY CLERK; PEGGY
BEAVER, in her official capacity as
HAMILTON COUNTY CLERK;
WILLIAM C. VANNESS II, M.D., in his
official capacity as the COMMISSIONER,
INDIANA STATE DEPARTMENT OF
HEALTH; and GREG ZOELLER, in his
official capacity as INDIANA
ATTORNEY GENERAL,

Defendants.

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1:14-cv-00355-RLY-TAB

ENTRY ON PLAINTIFFS MOTION FOR A PRELIMINARY INJUNCTION
2

Plaintiffs, Amy Sandler (Amy), Nikole (Niki) Quasney, A.Q.-S. and M.Q.-S
asked this court to grant them a temporary restraining order (TRO) and a preliminary
injunction requiring the State of Indiana to recognize the out-of-state marriage of Amy
and Niki. (Filing No. 31). The court granted the TRO, which expires on May 8, 2014.
(Filing No. 44; Filing No. 51). On May 2, 2014, the court held a hearing on the pending
motions for summary judgment and preliminary injunction. For the reasons set forth
below, the court GRANTS Plaintiffs motion for a preliminary injunction.
I. Background
Niki and Amy have been in a loving and committed relationship for more than
thirteen years. (Declaration of Nikole Quasney (Quasney Dec.) 2, Filing No. 32-2).
They are the parents to two very young children, Plaintiffs, A.Q.-S. and M.Q.-S. (Id. at
2). On June 7, 2011, Amy and Niki entered into a civil union in Illinois, and on August
29, 2013, they were legally married in Massachusetts. (Id. at 3).
In late May of 2009, Niki was diagnosed with Stage IV Ovarian cancer, which has
a probable survival rate of five years. (Id. at 9). Since June 2009, Niki has endured
several rounds of chemotherapy; yet, her cancer has progressed to the point where
chemotherapy is no longer a viable option. Niki is receiving no further treatment; her
death is imminent.
Niki and Amy joined the other Plaintiffs to this lawsuit to present a facial
challenge to Indiana Code 31-11-1-1, titled Same sex marriages prohibited and states:
(a) Only a female may marry a male. Only a male may marry a female.
(b) A marriage between persons of the same gender is void in Indiana even
if the marriage is lawful in the place where it is solemnized.
3

Because Niki is fighting a fatal disease and is nearing the five year survival rate, she and
Amy requested that the court issue a preliminary injunction preventing Indiana from
enforcing Indiana Code 31-11-1-1(b) as applied to them, and requiring the State of
Indiana, through the Defendants, to recognize Niki as married to Amy on her death
certificate.
II. Preliminary Injunction Standard
A preliminary injunction is an exercise of a very far-reaching power, never to be
indulged in except in a case clearly demanding it. Girl Scouts of Manitou Council, Inc.
v. Girl Scouts of U.S.A., Inc., 549 F.3d 1079, 1085-86 (7th Cir. 2008) (citations omitted).
The court analyzes a motion for a preliminary injunction in two distinct phases: a
threshold phase and a balancing phase. Id. Under the threshold phase for preliminary
injunctive relief, a plaintiff must establish and has the ultimate burden of proving by a
preponderance of the evidence each of the following elements: (1) some likelihood of
success on the merits, (2) absent a preliminary injunction, she will suffer irreparable
harm, and (3) traditional legal remedies would be inadequate. Id. at 1806. To satisfy the
first requirement, a plaintiffs chance of success must be more than negligible. See
Brunswick Corp. v. Jones, 784 F.2d 271, 275 (7th Cir. 1986).
If the court determines that the moving party has failed to demonstrate any one of
these [] threshold requirements, it must deny the injunction. Girl Scouts of Manitou
Council, Inc., 549 F.3d at 1086 (citation omitted). If, on the other hand, the court
determines the moving party has satisfied the threshold phase, the court then proceeds to
the balancing phase of the analysis. Id. The balancing phase requires the court to
4

balance the harm to the moving party if the injunction is denied against the harm to the
nonmoving party if the injunction is granted. Id. In so doing, the court utilizes what is
known as the sliding scale approach; the more likely the [movant] will succeed on the
merits, the less the balance of irreparable harms need favor the [movants] position. Id.
Additionally, this stage requires the court to consider any effects that granting or
denying the preliminary injunction would have on nonparties (something courts have
termed the public interest). Id.
III. Discussion
Before reaching the merits, Defendants pose two challenges that the court must
initially address. First, they argue the Plaintiffs, Niki and Amy, lack standing to assert
preliminary injunctive relief. Second, in light of the Supreme Courts recent decision in
Herbert v. Kitchen, 134 S.Ct. 893 (2013), they argue preliminary injunctive relief is
inappropriate.
A. Standing
To have standing a plaintiff must present an injury that is concrete, particularized,
and actual or imminent, fairly traceable to the defendants challenged behavior, and likely
to be redressed by a favorable ruling. Davis v. Fed. Election Commn, 554 U.S. 724,
733 (2008). Defendants argue that the harms alleged by Plaintiffs as arising from
Indianas non-recognition statute are not concrete and particularized, nor fairly traceable
to them. Thus, according to Defendants, a preliminary injunction cannot favorably
address Plaintiffs harms.
5

The Defendants in this case, the Attorney General; the County Clerks from Boone,
Porter, Lake, and Hamilton Counties; and the Commissioner of the Indiana Department
of Health, are statutorily required to enforce Indiana Code 31-11-1-1 by not
recognizing the marriage. See Ind. Code 4-6-1-6; see also Ind. Code 31-11-4-2; see
also Ind. Code 16-37-1-3 and Ind. Code 16-37-1-3.1. The injury to Plaintiffs
resulting from Indianas non-recognition statute harms the Plaintiffs in numerous tangible
and intangible ways, including causing Niki to drive to Illinois where her marriage will
be recognized in order to receive medical care and the dignity of marital status. Thus, a
preliminary injunction enjoining Defendants from enforcing the non-recognition statute
against Plaintiffs will, therefore, redress their claimed injury. Therefore, the court finds
that the Plaintiffs have standing to seek a preliminary injunction.
B. Is preliminary injunctive relief appropriate?
Citing Herbert v. Kitchen, Defendants contend that Plaintiffs demands for
preliminary relief are inappropriate under Federal Rule of Civil Procedure 65. Herbert v.
Kitchen, 134 S.Ct. 893 (Jan. 6, 2013). In that case, the Supreme Court issued a stay of
the District of Utahs permanent injunction requiring officials to issue marriage licenses
to same-sex couples and to recognize all same-sex marriages performed in other states.
Since that ruling, all decisions by federal district courts have been stayed while the
requisite preliminary and permanent injunctions are appealed to the respective circuit
courts.
Nevertheless, the court does not interpret the fact that the other federal courts are
staying injunctions to mean that preliminary injunctive relief is inappropriate in this case.
6

Nor does the court agree that a stay by the Supreme Court of such a broad injunction
conclusively determines that the Plaintiffs here are not entitled to the narrow form of
injunctive relief they seek. Additionally, despite these stays, no court has found that
preliminary injunctive relief is inappropriate simply because a stay may be issued.
Therefore, the court finds that preliminary injunctive relief is still appropriate in this
matter and proceeds to that analysis.
C. Is there a likelihood of success on the merits?
Plaintiffs argue that Indianas statute prohibiting the recognition of same-sex
marriages and in fact, voiding such marriages, violates the Fourteenth Amendments Due
Process Clause and Equal Protection Clause.
1. Equal Protection Clause
Plaintiffs argue that Indianas non-recognition statute, codified at Indiana Code
31-11-1-1(b), which provides that their state-sanctioned out-of-state marriage will not be
recognized in Indiana and is indeed, void in Indiana, deprives them of equal protection.
The Equal Protection Clause commands that no state shall deny to any person within its
jurisdiction the equal protection of the laws. U.S. CONST. amend. XIV, 1.
The theory underlying Plaintiffs claim is the notion that Indiana denies same-sex
couples the same equal rights, responsibilities and benefits that heterosexual couples
receive through traditional marriage. According to Defendants, the States interest in
traditional marriage is to encourage heterosexual couples to stay together for the sake of
any unintended children that their sexual relationship may produce, and to raise those
children in a household with both male and female role models. The State views
7

heterosexual couples who, for whatever reason, are not capable of producing children, to
further the states interest in being good male-female role models.
In the wake of the Supreme Courts decision in United States v. Windsor, 134
S.Ct. 2675 (2013), district courts from around the country have rejected the idea that a
states non-recognition statute bears a rational relation to the states interest in traditional
marriage as a means to foster responsible procreation and rear those children in a stable
male-female household. See Tanco, 2014 WL 997525 at * 6; see also Bishop v. U.S. ex
rel. Holder, 962 F. Supp. 2d 1252 (N.D. Okla. 2014) (finding there is no rational link
between excluding same-sex marriages and steering naturally procreative
relationships into marriage, in order to reduce the number of children born out of
wedlock and reduce economic burdens on the State); see also DeBoer v. Snyder, No.1:12-
cv-10285, 2014 WL 1100794, * 2 (E.D. Mich. Mar. 21, 2014) (noting that prohibiting
same-sex marriages does not stop [gay men and lesbian women] from forming families
and raising children). Indeed, as the court found in its prior Entry, with the wave of
persuasive cases supporting Plaintiffs position, there is a reasonable likelihood that the
Plaintiffs will prevail on the merits, even under the highly-deferential rational basis
standard of review. See Henry, 2014 WL 1418395 at ** 1-2 (noting that since the
Supreme Courts ruling in Windsor, all federal district courts have declared
unconstitutional and enjoined similar bans); see also Tanco, 2014 WL 997525 at * 6 (in
light of the rising tide of persuasive post-Windsor federal case law, it is no leap to
conclude that the plaintiffs here are likely to succeed in their challenge.) The reasons
8

advanced by the State in support of Indianas non-recognition statute do not distinguish
this case from the district court cases cited above.
The court is not persuaded that, at this stage, Indianas anti-recognition law will
suffer a different fate than those around the country. Thus, the Plaintiffs have shown that
they have a reasonable likelihood of success on the merits of their equal protection
challenge, even under a rational basis standard of review. Therefore, the court at this
stage does not need to determine whether sexual orientation discrimination merits a
higher standard of constitutional review.
2. Due Process Clause
Plaintiffs assert that they have a due process right to not be deprived of ones
already-existing legal marriage and its attendant benefits and protections. See Obergefell
v. Wymyslo, 962 F. Supp. 2d 968, 978 (S.D. Ohio 2013) (finding that non-recognition
invokes the right not to be deprived of ones already-existing legal marriage and its
attendant benefits and protections.); see also Henry v. Himes, No. 1:14-cv-129, 2014
WL 1418395, * 9 (S.D. Ohio Apr. 14, 2014) (applying intermediate scrutiny where Ohio
is intruding into and in fact erasing the marriage relationship); see also De Leon v.
Perry, No. SA-13-CA-00982-OLG, 2014 WL 715741, ** 21-24 (W.D. Tex Feb. 26,
2014) (applying rational basis review and finding that by declaring lawful same-sex
marriages void and denying married couples the rights, responsibilities, and benefits of
marriage, Texas denies same-sex couples who have been married in other states their due
process).
9

Defendants counter that there is no due process right to have ones marriage
recognized. According to Defendants, recognition of marriages from other states is only
a matter of comity, not a matter of right. See e.g., Sclamberg v. Sclamberg, 41 N.E.2d
801 (Ind. 1942) (recognizing parties concession that their marriage, performed in Russia,
was void under Indiana law because they were uncle and niece). Defendants again stress
that Windsor is a case merely about federalism and did not create a right under the Due
Process Clause to have ones marriage recognized.
The court found in its prior ruling that as a general rule, Indiana recognizes those
marriages performed out of state. Bolkovac v. State, 98 N.E.2d 250, 304 (Ind. 1951)
([t]he validity of a marriage depends upon the law of the place where it occurs.). This
includes recognizing marriages between first cousins despite the fact that they cannot
marry in Indiana. See Mason v. Mason, 775 N.E.2d 706, 709 (Ind. Ct. App. 2002).
Indianas non-recognition of Plaintiffs marriage is a departure from the traditional rule in
Indiana. Furthermore, the court notes that by declaring these marraiges void, the State of
Indiana may be depriving Plaintiffs of their liberty without due process of law. See e.g.
Loving v. Virginia, 388 U.S. 1, 12 (1967) (to deny this fundamental freedom on so
unsupportable a basis as the racial classification embodied in these statutes, . . . is surely
to deprive all of the States citizens of liberty without due process of law.) Therefore,
the court finds that Plaintiffs have shown some likelihood of success on this claim.
D. Are any injuries to Plaintiffs irreparable?
Irreparable harm is harm which cannot be repaired, retrieved, put down again,
atoned for . . . . [T]he injury must be of a particular nature, so that compensation in
10

money cannot atone for it. Graham v. Med. Mut. of Ohio, 130 F.3d 293, 296 (7th Cir.
1997) (internal quotation and citation omitted). Defendants first argue that there is not
irreparable harm here, because Plaintiffs have endured these injuries for a substantial
period of time. See Celebration Intl, Inc. v. Chosum Intl, Inc., 234 F. Supp. 2d 905, 920
(S.D. Ind. 2002) (Though not dispositive, tardiness weighs against a plaintiffs claim of
irreparable harm . . . .). The court does not find that the requested relief is tardy for two
reasons: (1) there has been a recent, substantial change in the law, and (2) in June 2014,
Niki will have reached the average survival rate for her disease.
Defendants challenge the Plaintiffs claim and this courts prior finding that the
constitutional injury alleged herein is sufficient evidence of irreparable harm. In support,
Defendants rely on cases decided in other circuits. These cases are not binding on this
court, but merely persuasive. After a more thorough review of the cases in the Seventh
Circuit, the court reaffirms its conclusion that a constitutional violation, like the one
alleged here, is indeed irreparable harm for purposes of preliminary injunctive relief. See
Preston v. Thompson, 589 F.2d 300, 303 n. 3 (7th Cir. 1978) ([t]he existence of a
continuing constitutional violation constitutes proof of an irreparable harm.); see Does v.
City of Indianapolis, No. 1:06-cv-865-RLY-WTL, 2006 WL 2927598, *11 (S.D. Ind.
Oct. 5, 2006) (quoting Cohen v. Coahoma Cnty., Miss., 805 F. Supp. 398, 406 (N.D.
Miss. 1992) for the proposition that [i]t has been repeatedly recognized by federal courts
at all levels that violation of constitutional rights constitutes irreparable harm as a matter
of law.); see also Back v. Carter, 933 F. Supp. 738, 754 (N.D. Ind. 1996) (When
violations of constitutional rights are alleged, further showing of irreparable injury may
11

not be required if what is at stake is not monetary damages. This rule is based on the
belief that equal protection rights are so fundamental to our society that any violation of
those rights causes irreparable harm.); see also Ezell v. City of Chicago, 651 F.3d 684
(7th Cir. 2011) (finding irreparable harm when Plaintiffs Second Amendment rights
were likely violated); see also Hodgkins v. Peterson, No. 1:04-cv-569-JDT-TAB, 2004
WL 1854194, * 5 (S.D. Ind. Jul. 23, 2004) (granting a preliminary injunction enjoining
enforcement of Indianapolis curfew law as it likely violated the parents due process
rights and finding that when an alleged deprivation of a constitutional right is involved,
most courts hold that no further showing of irreparable injury is necessary.)
Even if a further showing of irreparable harm is required, the court finds that
Plaintiffs have met this burden. Niki suffers irreparable harm as she drives to Illinois to
receive treatment at a hospital where her marriage will be recognized. In addition, Niki
may pass away without enjoying the dignity that official marriage status confers. See
Obergefell v. Kasich, No. 1:13-cv-501, 2013 WL 3814262, * 7 (S.D. Ohio Jul. 22, 2013)
(Dying with an incorrect death certificate that prohibits Mr. Arthur from being buried
with dignity constitutes irreparable harm. Furthermore, Mr. Arthurs harm is irreparable
because his injury is present now, while he is alive. A later decision allowing an
amendment to the death certificate cannot remediate the harm to Mr. Arthur, as he will
have passed away.); see also Gray v. Orr, (N.D. Ill. Dec. 5, 2013) (Equally, if not
more, compelling is Plaintiffs argument that without temporary relief, they will also be
deprived of enjoying less tangible but nonetheless significant personal and emotional
benefits that the dignity of official marriage status confers.). These are concrete,
12

tangible injuries that are fairly traceable to Defendants and can be remedied by a
preliminary injunction.
E. Balance of Harms and Public Interest
Having satisfied the threshold phase of a preliminary injunction, the court now
turns to the balancing phase. Plaintiffs assert that Defendants have not suffered and will
not suffer irreparable harm from this preliminary injunction, and that the public interest is
served by a preliminary injunction because there is no interest in upholding
unconstitutional laws. Defendants counter that while they can point to no specific
instances of harm or confusion since the court granted the TRO three weeks ago, the
State is harmed in the abstract by not being able to enforce this law uniformly and against
Plaintiffs. Defendants argue that the public interest weighs in their favor because (1) the
State has a compelling interest in defining marriage and administering its own marriage
laws, and (2) the continuity of Indianas marriage laws avoids potential confusion over a
series of injunctions.
As the court has recognized before, marriage and domestic relations are
traditionally left to the states; however, the restrictions put in place by the state must
comply with the United States Constitutions guarantees of equal protection of the laws
and due process. See Windsor, 133 S.Ct. at 2691 (citing Loving v. Virginia, 388 U.S. 1
(1967)). The State does not have a valid interest in upholding and applying a law that
violates these constitutional guarantees. See Joeiner v. Vill. Of Washington Park, 378
F.3d 613, 620 (7th Cir. 2004). Although the court recognizes the States concern that
injunctions of this sort will cause confusion with the administration of Indianas marriage
13

laws and to the public in general, that concern does not apply here.
1
The court is faced
with one injunction affecting one couple in a State with a population of over 6.5 million
people. This will not disrupt the public understanding of Indianas marriage laws.
IV. Conclusion
The court finds that the Plaintiffs, Amy, Niki, A.Q-S., and M.Q.-S., have satisfied
their burden for a preliminary injunction. They have shown a reasonable likelihood of
success on the merits, irreparable harm with no adequate remedy at law, that the public
interest is in favor of the relief, and the balance of harm weighs in their favor. Therefore,
the court GRANTS Plaintiffs motion for a preliminary injunction (Filing No. 31).
Defendants and all those acting in concert are ENJOINED from enforcing Indiana
statute 31-11-1-1(b) against recognition of Plaintiffs, Niki Quasneys and Amy
Sandlers, valid out-of-state marriage; the State of Indiana must recognize their marriage.
In addition, should Niki pass away in Indiana, the court orders William C. VanNess II,
M.D., in his official capacity as the Commissioner of the Indiana State Department of
Health and all those acting in concert, to issue a death certificate that records her marital
status as married and lists Plaintiff Amy Sandler as the surviving spouse. This order
shall require that Defendant VanNess issue directives to local health departments, funeral

1
This argument had more strength when all of the Plaintiffs in the present lawsuit were seeking
preliminary injunctive relief, because they (as opposed to Niki and Amy) were never married,
and challenged the constitutionality of Indianas traditional marriage law. The motion for
preliminary injunctive relief from the unmarried Plaintiffs (Filing No. 35) is WITHDRAWN;
therefore, the court does not see the potential of creating great confusion from the courts grant
of the present motion which affects only one couple. Should this injunction be reversed or a
permanent injunction not issued at a later time, only the parties to this case may suffer from
confusion. The court has faith that their respective attorneys can explain any decisions and
effects from those decisions to them.
14

homes, physicians, coroners, medical examiners, and others who may assist with the
completion of said death certificate explaining their duties under the order of this court.
This preliminary injunction will remain in force until the court renders judgment on the
merits of the Plaintiffs claims.
In conclusion, the court recognizes that the issues with which it is confronted are
highly contentious and provoke strong emotions both in favor and against same-sex
marriages. The courts ruling today is not a final resolution of the merits of the case it
is a preliminary look, or in other words, a best guess by the court as to what the outcome
will be. Currently, all federal district court cases decided post-Windsor indicate that
Plaintiffs are likely to prevail. Nevertheless, the strength or weakness of Plaintiffs case
at the time of final dissolution will inevitably be impacted as more courts are presented
with this issue.

SO ORDERED this 8th day of May 2014.

s/ Richard L.Young________________

Distributed Electronically to Registered Counsel of Record.

__________________________________
CERTIFICATE OF SERVICE
I hereby certify that on July 15, 2014, I electronically filed the foregoing with
the Clerk of the Court using the CM/ECF system, which sent notification of such
filing to the following:

No. 14-2386

Paul D Castillo
Camilla B. Taylor
Lambda Legal Defense & Education
Fund, Inc.
pcastillo@mail.lambdalegal.org
ctaylor@lambdalegal.org

Brent Phillip Ray
Jordan Heinz
Melanie MacKay
Scott Lerner
Dmitriy Tishyevich
Kirkland & Ellis LLP
brent.ray@kirkland.com
jordan.heinz@kirkland.com
melanie.mackay@kirkland.com
scott.lerner@kirkland.com
dmitriy.tishyevich@kirkland.com

Barbara J. Baird
The Law Office Of Barbara J Baird
bjbaird@bjbairdlaw.com

Robert V. Clutter
Kirtley, Taylor, Sims, Chadd & Minnette,
P.C.
bclutter@kirtleytaylorlaw.com

Darren J. Murphy
Assistant Hamilton County Attorney
dmurphy@ori.net

No. 14-2387

Chase Strangio
American Civil Liberties Union
cstrangio@aclu.org

Thomas Alan Hardin
Shine & Hardin LLP
thardin@shineandhardin.com

Kenneth J. Falk
ACLU Of Indiana
kfalk@aclu-in.org

Sean C. Lemieux
Lemieux Law
sean@lemieuxlawoffices.com

No. 14-2388

Karen Celestino Horseman, Of Counsel
Austin & Jones, PC
karen@kchorseman.com

William R. Groth
Fillenwarth Dennerline Groth & Towe
LLP
wgroth@fdgtlaborlaw.com

Kathleen M. Sweeney
Sweeney Hayes LLC
ksween@gmail.com

Mark W. Sniderman
Sniderman Nguyen LLP
mark@snlawyers.com

I further certify that on July 11, 2014, I e-mailed courtesy copies of this filing
to the following counsel of record in the District Court:

No. 14-2386

Nancy Moore Tiller
Nancy Moore Tiller & Associates
nmt@tillerlegal.com
John S. Dull
Law Office of John S. Dull, PC
jsdull@yahoo.com

No. 14-2388

Elizabeth A. Knight
Porter County Administrative Center
eknight@porterco.org

s/ Thomas M. Fisher
Thomas M. Fisher
Solicitor General

Office of the Indiana Attorney General
Indiana Government Center South, Fifth Floor
302 W. Washington Street
Indianapolis, IN 46204-2770
Telephone: (317) 232-6255
Facsimile: (317) 232-7979
Tom.Fisher@atg.in.gov


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