Plaintiffs' Brief in Support of Motion For Summary Judgment

Case 1:14-cv-00405-RLY-TAB Document 20 Filed 04/21/14 Page 1 of 47 PageID #: 66
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION ) ) ) Plaintiffs, ) ) vs. ) Case No. 1:14-cv-0405-RLY-TAB ) MICHAEL PENCE, in his official capacity as ) Governor of the State of Indiana, GREGORY ) ZOELLER, in his official capacity as Attorney ) General for the State of Indiana, ) MICHAEL ALLEY, in his capacity as ) Commissioner of the Indiana Department of ) Revenue; and ANITA SAMUEL, in her capacity ) as Executive Director of the Indiana Department ) of State Personnel, ) ) Defendants. ) ______________________________________________________________________________ PLAINTIFFS' BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ MICHELLE BOWLING, SHANNON BOWLING and LINDA BRUNER,
Richard A. Mann Lisa M. Joachim Todd D. Small Attorneys for Plaintiffs
TABLE OF CONTENTS TABLE OF AUTHORITIES..........................................................................................................iii INTRODUCTION...........................................................................................................................1 STATEMENT OF MATERIAL FACTS NOT IN DISPUTE.........................................................1 SUMMARY JUDGMENT STANDARD.......................................................................................6 ARGUMENT...................................................................................................................................6 I. DEFENDANTS' ENFORCEMENT OF INDIANA'S DOMA VIOLATES THE DUE PROCESS CLAUSE...........................................................................7 A. Defendants' Enforcement of Indiana's DOMA Infringes Plaintiffs' Fundamental Right to Marry................................................................................................8 i. Marriage is a fundamental right; therefore, this Court should apply strict scrutiny........................................................................................................8 ii. Defendants' enforcement of Indiana's DOMA cannot survive rational basis review, let alone strict scrutiny..............................................................10 a. Defendants' justification of traditional marriage fails rational basis..........................................................................................................11 b. Defendants' justification of responsible procreation and optimal child-rearing fails rational basis................................................................14 B. Defendants' Enforcement of Indiana's DOMA Infringes Plaintiffs' Fundamental Right of Access to the Courts......................................................................19 C. Defendants' Enforcement of Indiana's DOMA Infringes Plaintiffs' Fundamental Right to Travel.............................................................................................21 II. DEFENDANTS' ENFORCEMENT OF INDIANA'S DOMA VIOLATES THE EQUAL PROTECTION CLAUSE ..........................................................23 A. Defendants' Enforcement of Indiana's DOMA is Subject to Heightened Scrutiny...........................................................................................................24
i. Defendants' enforcement of Indiana's DOMA classifies Plaintiffs' based on sex and, therefore, is subject to heightened scrutiny....................................24 ii. Defendants' enforcement of Indiana's DOMA classifies Plaintiffs' based on sexual orientation and therefore is subject to heightened scrutiny..................................................................................................24 iii. Defendants' enforcement of Indiana's DOMA infringes on Plaintiffs' fundamental rights and is, therefore, subject to heightened scrutiny.....................................................................................................28 B. Defendants' Enforcement of Indiana's DOMA Cannot Withstand Rational Basis Review as there is no Legitimate State Interest Rationally Related to the Disparate Impact Caused..........................................................28 III. DEFENDANTS' ENFORCEMENT OF INDIANA'S DOMA VIOLATES THE ESTABLISHMENT CLAUSE .....................................................................................30 A. Defendants' Enforcement of Indiana's DOMA Does Not Have a Sincere Secular Purpose.....................................................................................................31 B. Defendants' Enforcement of Indiana's DOMA Has the Primary Effect of Advancing Religion...........................................................................................32 IV. DEFENDANTS' ENFORCEMENT OF INDIANA'S DOMA VIOLATES THE FULL FAITH AND CREDIT CLAUSE........................................................................33 CONCLUSION..............................................................................................................................35 CERTIFICATE OF SERVICE......................................................................................................36
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TABLE OF AUTHORITIES Cases Baker v. General Motors Corp., 522 U.S. 222 (1998)..33 Baker v. Nelson, 409 U.S. 810 (1972)..................................................................................................................11 Bellaver v. Quanex Corp., 200 F.3d 485 (7th Cir. 2000)......................................................................................................6 Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989)....................................................................................................26 Bishop v. United States, 2014 WL 116013 (N.D. Okla. 2014)............................................................................11, 27, 29 Bd. of Educ. v. Allen, 392 U.S. 236 (1968)..................................................................................................................30 Boddie v. Connecticut, 401 U.S. 371 (1971)..................................................................................................................20 Bolkovac v. State, 98 N.E.2d 250 (Ind. 1951)........33 Bostic v. Rainey, 2014 WL 561978 (E.D. Va. 2014)..........................................................................11, 17, 27, 29 Bourke v. Beshear, 2014 WL 556729 (W.D. Ky. 2014)........................................................................11, 25, 27, 29 Bowers v. Hardwick, 478 U.S. 186 (1986)..................................................................................................................27 City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432 (1985)..................................................................................................................25
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Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974)....................................................................................................................8 Comm. for Pub. Educ. and Religious Liberty v. Nyquist, 413 U.S. 756 (1973)............................................................................................................30, 32 Davis v. Summers, 1 N.E.3d 184 (Ind. Ct. App. 2013)............................................................................................15 DeBoer v. Snyder, 2014 WL 1100794 (E.D. Mich. 2014)........................................................11, 13, 17, 18, 27, 29 De Leon v. Perry, 2014 WL 715741 (W.D. Tex. 2014).......................................................................11, 26, 27, 29 Edwards v. Aguillard, 482 U.S. 578 (1987)............................................................................................................30, 31 Epperson v. Arkansas, 393 U.S. 97 (1968)....................................................................................................................30 Estin v. Estin, 334 U.S. 541 (1948)..............33 Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003)...................................................................................................19 Griswold v. Connecticut, 381 U.S. 479 (1965)....................................................................................................................8 Harper v. Virginia State Board, 383 U.S. 663 (1966)..................................................................................................................28 Heller v. Doe ex rel. Doe, 509 U.S. 312 (1993)......................................................................................................13, 23, 28 In Re Adoption of M.M.G.C., 785 N.E.2d 267 (Ind. Ct. App. 2003)..................................................................................15, 16
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Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013)...........................................................................12, 27, 29 Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982)..................................................................................................................30 Lawrence v. Texas, 539 U.S. 558 (2003)......................................................................................9, 11, 12, 13, 26, 27 Lemon v. Kurtzman, 403 U.S. 602 (1971)..................................................................................................................30 Loving v. Virginia, 388 U.S. 1 (1967)..................................................................................................................9, 23 Lynch v. Donnelly, 465 U.S. 668 (1984)............................................................................................................31, 32 Lyng v. Castillo, 477 U.S. 635 (1986)..................................................................................................................25 M.L.B. v. S.L.J, 519 U.S. 102 (1996)....................................................................................................................8 Mason v. Mason, 775 N.E.2d 706 (Ind. Ct. App. 2002)........33 Mass. Bd. of Ret. v. Murgia, 427 U.S. 307 (1976)..................................................................................................................25 Maynard v. Hill, 125 U.S. 190 (1888)................................................................................................................8, 9 Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974)..................................................................................................................21 Meyer v. Nebraska, 262 U.S. 390 (1993)....................................................................................................................8
Milwaukee County v. M.E. White Co., 296 U.S. 268 (1935)..........33 Morrison v. Sadler, 821 N.E.2d 15 (Ind. Ct. App. 2005)..........................................................................................11 Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950)............................................................................................................19, 20 Naim v. Naim, 87 S.E.2d 749 (Va. 1955)............................................................................................................9 Obergefell v. Wymyslo, 962 F. Supp. 2d 968 (S.D. Ohio 2013)........................................................11, 22, 25, 26, 27, 29 Pacific Employers Ins. Co. v. Industrial Accident Comm'n, 306 U.S. 493 (1939)..................................................................................................................33 Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010)......................................................................................16 Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992)..............................................................................................................9, 12 Plyler v. Doe, 457 U.S. 202 (1982)..................................................................................................................23 Reynolds v. Sims, 377 U.S. 533 (1964)..................................................................................................................28 Romer v. Evans, 517 U.S. 620 (1996)............................................................................................................28, 29 Saenz v. Roe, 526 U.S. 489 (1999)..................................................................................................................22 Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000)............................................................................................................30, 31
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Sch. Dist. of Abington Twp., Pa. v. Schempp, 374 U.S. 203 (1963)..................................................................................................................32 Schroeder v. Hamilton, 282 F.3d 946 (7th Cir. 2002).....................................................................................................27 Shapiro v. Thompson, 394 U.S. 618 (1969)..................................................................................................................21 Skinner v. Oklahoma, 316 U.S. 535 (1942)..................................................................................................................23 SmithKline Beecham Corp v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014)....................................................................................................28 Sosna v. Iowa, 419 U.S. 393 (1975)..................................................................................................................22 Stanley v. Illinois, 405 U.S. 645 (1972)..................................................................................................................17 Stone v. Graham, 449 U.S. 39 (1980)....................................................................................................................30 Tanco v. Haslam, 2014 WL 997525 (M.D. Tenn. 2014).................................................................................12, 27 Troxel v. Granville, 530 U.S. 57 (2000)....................................................................................................................17 Turner v. Safley, 482 U.S. 79 (1987)....................................................................................................................10 United States v. Jackson, 390 U.S. 570 (1968)..................................................................................................................21 United States v. Kras, 409 U.S. 434 (1973)..................................................................................................................20
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United States v. Virginia, 518 U.S. 515 (1996)..................................................................................................................24 United States v. Windsor, 133 S.Ct. 2675 (2013).....................................................................10, 13, 14, 18, 19, 25, 27, 34 Wallace v. Jaffree, 472 U.S. 38 (1985)..............................................................................................................30, 31 Walz v. Tax Comm'n of the City of New York, 397 U.S. 664 (1970)............................................................................................................30, 31 Washington v. Glucksberg, 521 U.S. 702 (1997)..............................................................................................................7, 11 Widmar v. Vincent, 454 U.S. 263 (1981)..................................................................................................................30 Windsor v. United States, 699 F.3d 169 (2d Cir. 2012)......................................................................................................26 Zablocki v. Redhail, 434 U.S. 374 (1978)......................................................................................................7, 8, 9, 10 Statues 1 U.S.C. 7....................................................................................................................................25 28 U.S.C. 2201..............................................................................................................................6 28 U.S.C. 2202..............................................................................................................................6 42 U.S.C. 1983..........................................................................................................................6, 7 42 U.S.C. 1988..........................................................................................................................6, 7 Ind. Code 31-11-1-1....................................................................................................1, 24, 25, 34 Ind. Code 31-11-1-2....................................................................................................................15
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Ind. Code 31-15-2-6......................................................................................................................5 Iowa Code 598.5.........................................................................................................................23 Other Authorities U.S. Const. art. IV, 1...................................................................................................................33 U.S. Const. amend. I......................................................................................................................30 U.S. Const. amend XIV.............................................................................................................7, 23 Ind. Const. Art. I, 12...................................................................................................................20 Fed. R. Civ. P. 56.............................................................................................................................6 Fed. R. Civ. P. 57.............................................................................................................................6 Fed. R. Civ. P. 65.............................................................................................................................6 H.J. Res. 3, 118th Gen. Assem., Second Reg. Sess. (Ind. 2014)..............................................................................................................................................26 Brief for the State of Indiana et al. as Amici Curiae in Support of Reversal, Kitchen v. Herbert, Bishop v. Smith, Barton v. Smith, Nos. 13-4178, 14-5003, 14-5006 (10th Cir. Feb. 2, 2014)..............................11, 12, 14, 15, 29, 31 Indiana Department of Personnel website, http://www.in.gov/spd/2284.htm.................................2 Indiana Department of Personnel Employee Handbook, http://www.in.gov/spd/files/employee_handbook.pdf.....................................................................2 Indiana Department of Revenue website, http://www.in.gov/dor/4895.htm...................................3 Indiana Judicial Service Report (2011), Vol. 1, p. 94 available at http://www.in.gov/judiciary/admin/files/rpts-ijs-2011-review.pdf................................................16
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Tim Evans, Indiana couples file federal lawsuit to recognize same-sex marriage, INDIANAPOLIS STAR, Mar. 7, 2014, available at http://www.indystar.com/story/news/2014/03/07/indiana-couples-file-federallawsuit-to-recognize-same-sex-marriage/6171287/.........................................................................4
INTRODUCTION Plaintiffs, Michelle Bowling (hereinafter Michelle), Shannon Bowling (hereinafter Shannon), and Linda Bruner (hereinafter Linda) (hereinafter collectively "Plaintiffs"), are females who are challenging the constitutionality of Indiana Code 31-11-1-1 (hereinafter Indianas DOMA") to force Defendants and the State of Indiana to recognize their respective same-sex marriages legally solemnized in another state. Indianas DOMA provides, Only a female may marry a male. Only a male may marry a female. Ind. Code 31-11-1-1(a). Further, subsection (b) of Indianas DOMA (hereinafter Indianas Anti-Recognition Statute) states that [a] marriage between persons of the same gender is void in Indiana even if the marriage is lawful in the place where it is solemnized. Ind. Code 31-11-1-1(b). Indianas DOMA violates Plaintiffs' constitutional rights, and Defendants' actions enforcing Indianas DOMA have caused Plaintiffs' tangible and dignitary harms. No genuine issues of material fact exist and Plaintiffs are entitled to judgment as a matter of law. As such, this Court should enter judgment in favor of Plaintiffs requiring Defendants and the State of Indiana to recognize Plaintiffs' legally solemnized out of state marriages. STATEMENT OF MATERIAL FACTS NOT IN DISPUTE Michelle and Shannon Michelle and Shannon are both citizens of the United States, residing in Marion County, Indiana. Ex. 1 (Decl. of Michelle), 2; Ex. 2 (Decl. of Shannon), 2. Both Michelle and Shannon are females and at the time of their marriage were females. Id. After living together in a committed relationship, Michelle and Shannon decided they wanted to get married. Ex. 1 at 3; Ex. 2 at 3. Michelle and Shannon knew that the State of Indiana would not allow them to marry each other. Ex. 1 at 3; Ex. 2 at 3. As a result of Indiana's DOMA, Michelle and 1
Shannon decided to go to Iowa to get married, and on January 18, 2011, Michelle and Shannon legally solemnized their marriage in Polk County, Iowa. Ex. 1 4, 5; Ex. 2 at 4, 5. Michelle is employed by the Marion County Small Claims Court, Decatur Township Division, and Shannon is an employee of the Department of Corrections of the State of Indiana. Ex. 1 at 7, 8; Ex. 2 at 7. After their marriage in Iowa, Michelle and Shannon returned to their home and employment in Indiana. Ex. 1 at 6; Ex. 2 at 6. Michelle and Shannon live with and are raising two (2) of Michelles children from a previous relationship. Ex. 1 at 2; Ex. 2 at 2. Indiana's DOMA and Defendants' continued enforcement of Indiana's DOMA treats their family differently from other families whose parents are opposite-sex couples. Ex. 1 at 21, 22; Ex. 2 at 20, 21. Defendants' continued enforcement and defense of Indiana's DOMA discriminates, demeans and degrades their family. Ex. 1 at 21, 22; Ex. 2 at 20, 21. As a state employee, Shannon is eligible to participate in the State's benefit plans. Ex. 2 at 8. The State's benefit plans are administered by the Indiana Department of State Personnel (hereinafter "DOP"). Id. DOP's website provides that its mission is "to deliver integrated Human Resources services, allowing the governor's office and agencies to effectively achieve their stated goals and objectives." Ex. 2 at 9; DOP's website, http://www.in.gov/spd/2284.htm. Defendant Anita Samuel, in her official capacity as Executive Director of the Indiana DOP, is in charge of the DOP. Ex. 2 at 11. DOP offers State's benefit plans to spouses of state
employees. Ex. 2 at 10. However, Michelle is not eligible for the State's benefit plans because DOP's definition of spouse is a member of the opposite sex in reliance on Indiana's DOMA. Ex. 1 at 13, 14; Ex. 2 at 12, 13; DOP's Employee Group Insurance Benefit Handbook, http://www.in.gov/spd/files/employee_handbook.pdf. As a result of DOP's refusal to recognize
same-sex spouses, Michelle and Shannon have incurred far greater expenses to provide insurance for themselves and their two (2) children. Ex. 1 at 15, 16; Ex. 2 at 14, 15. Michelle and Shannon consulted the website for the Indiana Department of Revenue (hereinafter "DOR") when preparing their 2013 tax returns. Ex. 1 at 17; Ex. 2 at 16. Defendant, Michael Alley, in his official capacity as Commissioner of the DOR, is in charge of the DOR. Ex. 1 at 18; Ex. 2 at 17. The DOR's website states, "In accordance with IC 31-111-1, Indiana does not recognize same-sex marriages. Therefore, same-sex couples who file federal returns with a married filing status must each file their Indiana income tax returns with filing status of single." Ex. 1 at 19; Ex. 2 at 18. Michelle and Shannon filed their joint federal tax return with a "married" filing status. Ex. 1 at 20; Ex. 2 at 19. However, due to the requirements of the DOR, Michelle and Shannon were required to file two separate Indiana tax returns with a filing status "single" and prepare two separate federal income tax returns. Ex. 1 at 20; Ex. 2 at 19; DOR's website, http://www.in.gov/dor/4895.htm. If Michelle and Shannon were an opposite-sex couple married in Iowa, Defendants and the State of Indiana would recognize their marriage. Ex. 1 at 23; Ex. 2 at 22. Linda Bruner Linda is a citizen of the United States, residing in of Hancock County, Indiana. Ex. 3 (Decl. of Linda) 2. Linda is employed as an Emergency Medical Technician. Ex. 3 at 2. Linda, and her wife Lori, began dating in August of 2003 and eventually started living together and raising Lori's two (2) children from a previous relationship as a family, and Linda helped raise Lori's children from Kindergarten through middle and high school. Ex. 3 at 3. Linda and Lori decided to get married to each other, but knew Indiana's laws would not allow them to marry the person they loved because they both are females and were females at the time of their
marriage. Ex. 3 at 4. On July 20, 2010, Linda and Lori legally solemnized their marriage in Woodbury County, Iowa. Ex. 3 at 5. After Linda and Lori were married in Iowa, they returned to Indiana to their home and employment. Ex. 3 at 6.
Linda and Lori's marriage has reached a point where there have become irreconcilable differences. Ex. 3 at 7. As a result, Linda and Lori decided they could no longer remain married. Ex. 3 at 7. Linda has petitioned and received a protective order against her wife, Lori, in Hancock County, Indiana. Ex. 3 at 8. On January 31, 2013, Linda filed a Petition for Dissolution of Marriage in the Marion Superior Court under Cause Number 49D05-1301-DR3893. Ex. 3 at 9. The Marion Superior Court takes the position that it does not have subject matter jurisdiction over same-sex dissolutions, and Linda intends to file an appeal if the Marion Superior Court dismisses her dissolution. Compl. [dkt. 1 at 17, 72]. Even if the Marion Superior Court were to grant her dissolution, the Defendant Gregory Zoeller, in his official capacity as Attorney General of the State of Indiana has stated he would defend and enforce Indiana's DOMA. marriage, Tim Evans, Indiana couples file federal lawsuit to recognize same-sex STAR, Mar. 7, 2014, available at
INDIANAPOLIS
http://www.indystar.com/story/news/2014/03/07/indiana-couples-file-federal-lawsuit-torecognize-same-sex-marriage/6171287/. Indiana's court system is the only means Linda has to obtain a dissolution of marriage, and the trial court's refusal to grant Linda a dissolution of marriage denies her access to the courts and a meaningful opportunity to be heard. Compl. [dkt. 1 at 17, 73]; Ex. 3 at 10. Without having access to Indiana's courts to obtain a divorce, Linda would be forced to quit her job, leave her home, and relocate to another state that recognizes her marriage to obtain a divorce from her wife after living in that state long enough to establish residence. Compl. [dkt. 1 at 17,
74]; Ex. 3 at 11. Indiana requires a person to be a resident of the state for six (6) months, and the county for three (3) months before a petition for dissolution may be filed. Ind. Code 31-152-6. Defendants' refusal to recognize Linda's legally solemnized marriage requires Linda to remain in an unhealthy and unsafe marriage, as well as prevents her from remarrying if she chooses to do so. Ex. 3 at 12.
When Linda prepared her 2013 tax returns, she reviewed the website for the DOR for guidance. Ex. 3 at 13. Linda found the same information on the DOR website as referenced above. Ex. 3 at 14, 15. Due to the requirements of the DOR, Linda had to file an Indiana tax
return with a filing status of "single." Ex. 3 at 16. If Linda and her wife were an opposite-sex couple who legally solemnized their marriage in Iowa, Defendants and the State of Indiana would recognize their marriage. Ex. 3 at 19. Brian Powell, James H. Rudy Professor in the Department of Sociology at Indiana University Brian Powell, Ph.D. (hereinafter "Powell"), is the James H. Rudy Professor in the Department of Sociology at Indiana University and would qualify as an expert witness to testify at a trial as to the opinions expressed in his affidavit. Ex. 4 (Decl. of Powell), 1, 2, 3, 4, 5. The overall scholarly consensus in the social scientific community is that children of same-sex couples fare as well as children of opposite-sex couples. Ex. 4, p. 3-4. Several professional associations have endorsed the right for same-sex couples to marry. Ex. 4, p. 4. Social scientists generally agree that marriage confers important advantages to its marital partners and their children and increases family stability. Ex. 4, p. 6-7. Same-sex families in Indiana face challenges because they do not enjoy the same socioemotional, economic, and educational advantages conferred by marriage. Ex. 4, p. 6-7. In addition, same-sex parents work hard to compensate for the difficulties faced by their children of
growing up in a state that views them not as a legitimate family. Ex. 4, p. 6-7. Marital status can confer the legitimacy and level of family authenticity that otherwise would be difficult for samesex families to achieve. Ex. 4, p. 6-7. For this reason, the benefits from marriage would provide an equally if not more important benefit to same-sex couples and their children. Ex. 4, p. 7.
Social scientific evidence is persuasive in challenging a rational basis for denying marital rights to same-sex couples. Ex. 4, p. 7. SUMMARY JUDGMENT STANDARD Federal Rule of Civil Procedure 56 supplies the standard for granting motions for summary judgment. Fed. R. Civ. P. 56. Pursuant to Rule 56(a), The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment a matter of law. Fed. R. Civ. P. 56(a). A genuine issue of material fact exists when a reasonable jury could find for the party opposing the motion based on the record as a whole. Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000). ARGUMENT Plaintiffs brought this cause of action pursuant to 42 U.S.C. 1983 and 1988, Rules 57 and 65 of the Federal Rules of Civil Procedure, and 28 U.S.C. 2201 and 2202 seeking declaratory and injunctive relief against Defendants as Defendants' enforcement of Indiana's DOMA violates Plaintiffs' constitutional rights under the Due Process Clause of the Fourteenth Amendment (hereinafter "Due Process Clause"), the Equal Protection Clause of the Fourteenth Amendment (hereinafter "Equal Protection Clause"), the Establishment Clause of the First Amendment (hereinafter "Establishment Clause"), and the Full Faith and Credit Clause (hereinafter "Full Faith and Credit Clause") all of the United States Constitution. Specifically, 42 U.S.C. 1983 provides:
Every person, who under color of any statute,...of any State...subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in any action at law, suit in equity or other proper proceeding for redress... 42 U.S.C. 1983. Section 1988 of Title 42 of the United States Code provides for the recovery of a reasonable attorney's fee for a prevailing party in any action to enforce 42 U.S.C. 1983. 42 U.S.C. 1988. As discussed in detail below, Defendants, who are individuals acting under color of a state statute, are causing Plaintiffs to be subjected to a deprivation of Plaintiffs' constitutional rights, privileges, and immunities by enforcing and defending Indiana's DOMA. As such,
Plaintiffs are entitled to declaratory and injunctive relief and damages against Defendants. I. DEFENDANTS' ENFORCEMENT OF INDIANA'S DOMA VIOLATES THE DUE PROCESS CLAUSE The Fourteenth Amendment to the United States Constitution precludes any state from "depriving any person of life, liberty or property, without the due process of law." U.S. Const. amend. XIV, 1. A substantive due process analysis has two primary features of "specially protect[ing] those fundamental rights and liberties which are, objectively, deeply rooted in this Nations history and tradition," and providing "a careful description of the asserted fundamental liberty interest." Washington v. Glucksberg, 521 U.S. 702, 720-721 (1997) (internal quotations omitted). Under strict scrutiny, "when a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests." Zablocki v. Redhail, 434 U.S. 374, 388 (1978). Because the right to marry, the right to travel and the right of access to the courts are fundamental constitutional rights, Indiana's DOMA, which infringes
upon those fundamental rights, cannot be upheld unless it is justified by compelling state interests and is narrowly drawn to express those interests. A. Defendants' Enforcement of Indiana's DOMA Infringes Plaintiffs' Fundamental Right to Marry
The Supreme Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-640 (1974); See also Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (holding the right to "marry, establish a home and bring up children" is a liberty protected by the Due Process Clause); Griswold v. Connecticut, 381 U.S. 479, 485-486 (1965) (holding a state law forbidding use of contraceptives unconstitutionally intrudes upon the right of marital privacy); M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996) (explaining choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as of basic importance in our society, rights sheltered by the Fourteenth Amendment against the States unwarranted usurpation, disregard, or disrespect.") (emphasis added) (internal quotations omitted). Because marriage is a
fundamental right, this Court should apply strict scrutiny when reviewing Defendants' enforcement of Indiana's DOMA. Zablocki, 434 U.S. at 388. Even if this Court applies rational basis review, Defendants' enforcement of Indiana's DOMA is unconstitutional. i. Marriage is a fundamental right therefore this Court should apply strict scrutiny.
Although marriage is generally under state providence, the state's powers to regulate marriage are not unlimited and are subject to the constitutional principles of due process and equal protection (as described below). Maynard v. Hill, 125 U.S. 190 (1888). The state may not impose its own moral compass, as the Court's role is to protect "the liberty of all, not to mandate
our own moral code."
Lawrence v. Texas, 539 U.S. 558, 571 (2003) (quoting Planned
Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850 (1992)). In its landmark ruling, the Supreme Court in Loving v. Virginia found a ban on interracial marriage was unconstitutional and unsupported based on the invidious classification of race. 388 U.S. 1, 12 (1967). Virginia, one of sixteen states that prohibited and criminalized interracial marriage, argued the law was "'to preserve the racial integrity of its citizens'" and to "prevent 'the corruption of blood'" and "'a mongrel breed citizens.'" Id. at 6-7 (quoting Naim v. Naim, 87 S.E.2d 749, 756 (Va. 1955)). The Supreme Court held that marriage is a fundamental
constitutional right and "the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men." Id. at 12. The Supreme Court further held that the "freedom to marry or not marry, a person of another race resides with the individual and cannot be infringed by the State." Id. In Zablocki, the Supreme Court, describing marriage as "'the most important relation in life,'" declared unconstitutional a state law preventing a person from obtaining a marriage license if he or she had minor children not in his or her custody if their support payments were not up to date. 434 U.S. at 384 (1978) (quoting Maynard v. Hill, 125 U.S. 190, 205 (1888)). The Supreme Court held that the law arbitrarily deprived an individual the right to marry, which was not justified by the alleged state interest. Id. at 388-389. The Supreme Court stated, "It would make little sense to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society." Id. at 386. In Turner v. Safley, the Supreme Court declared unconstitutional a state law that prevented prisoners from getting married unless they had the superintendent's permission to do
so. 482 U.S. 78, 99-100 (1987). The Supreme Court found that the law impinged upon the fundamental right to marry and the law violated due process because it was not narrowly tailored to effectuate the purposes of rehabilitation and safety. Id. at 97-99. The Supreme Court
explained that the prisoners' fundamental right to marry was unaffected by their status as prison inmates because of the importance of "emotional support and public commitment," that "many religions recognize marriage as having spiritual significance" and that "marital status often is a precondition to the receipt of government benefits (e.g., Social Security benefits), property rights (e.g., tenancy by the entirety, inheritance rights), and other, less tangible benefits (e.g., legitimation of children born out of wedlock)." Id. at 95-96. Plaintiffs have a fundamental freedom to marry and fundamental freedom in liberty, dignity, privacy, family integrity and intimate association under the Fourteenth Amendment. Defendants' enforcement of Indiana's DOMA deprives Plaintiffs and other same-sex couples of their constitutional rights without due process of law. Defendants' usurpation, disregard, and disrespect infringes on the Plaintiffs' right to marry the person of their choice, denies them access to the state-recognized institution of marriage and prevents the receipt of government, property and tangible benefits they deserve. ii. Defendants' enforcement of Indiana's DOMA cannot survive rational basis review, let alone strict scrutiny.
Because Defendants' enforcement of Indiana's DOMA interferes with the exercise of the Plaintiffs' constitutional rights to marry in Indiana and have their legally solemnized marriages recognized, it cannot be upheld unless the state has a compelling interest and the law is narrowly tailored to effectuate that purpose. Zablocki, 434 U.S. at 388. 1 Even under the most deferential
See United States v. Windsor, 133 S.Ct. 2675, 2706 (2013) (Scalia, J., dissenting) (the majority "does not apply strict scrutiny and [although] its central propositions are taken from rational basis cases... the Court certainly does not apply anything that resembles that deferential framework) (emphasis in original).
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standard of rational basis review the law is unconstitutional. In order to meet rational basis review the law must be rationally related to a legitimate government interest. Glucksberg, 521 U.S. at 728. The Defendants' purpose and interests in upholding Indiana's DOMA are moral 2 and political in nature. Defendants' rationale in enforcing the ban against same-sex marriage and excluding recognition of same-sex couples is based on Defendants idea of traditional marriage and on "responsible" and "natural" procreation grounds. 3 a. Defendants' justification of traditional marriage fails rational basis.
First, Defendants argue that preserving the traditional definition of marriage is a legitimate state interest. Defendants argue that Plaintiffs are seeking the recognition of a "new" right, the right to same-sex marriage, which has not existed in the past. Brief for the State of Indiana et al. as Amici Curiae in Support of Reversal *6, *27, Kitchen v. Herbert, Bishop v. Smith, Barton v. Smith, Nos. 13-4178, 14-5003, 14-5006 (10th Cir. Feb. 2, 2014) ("Indiana's Amici Brief"). Defendants claim that the federal district courts 4 that have declared the
See Lawrence v. Texas, 539 U.S. 558, 601 (1986) (Scalia, J., dissenting) (stating that preserving the traditional institution of marriage is just a kinder way of describing the States moral disapproval of same-sex couples") (emphasis in original). In 2005, the Indiana Court of Appeals addressed the constitutionality of Indiana's DOMA and found it to be constitutional. Morrison v. Sadler, 821 N.E.2d 15, 35 (Ind. Ct. App. 2005). The State's past reasoning in excluding recognition of same-sex couples is based on the traditional idea of marriage and on "responsible" and "natural" procreation grounds. Id. at 24-25. Indiana claims that the rights, protections and benefits given to heterosexual marriage is in order to "encourage male-female couples to procreate within the legitimacy and stability of a statesanctioned relationship and to discourage unplanned, out-of-wedlock births resulting from casual intercourse." Id. It further reasons that where heterosexual couples enter into marriage with no intention of having children, if an "accident" happens, it will "encourage them to stay together to raise a child." Id. This instant case is distinguishable to Morrison. The court in Morrison, began its analysis by stating that the Plaintiffs in the case made no explicit argument that Indiana's limitation of marriage to opposite sex couples violated the United States Constitution and that there was binding United States Supreme Court precedent indicating that state bans on same-sex marriage did not violate the United States Constitution. Id. at 19; (citing Baker v. Nelson, 409 U.S. 810 (1972) where the U.S. Supreme Court dismissed a challenge on the ban of same-sex marriage for want of a substantial federal question).
4
See Bishop v. United States, 2014 WL 116013 (N.D. Okla. 2014); De Leon v. Perry, 2014 WL 715741 (W.D. Tex. 2014); Obergefell v. Wymyslo, 962 F. Supp. 2d 968 (S.D. Ohio 2013); Bourke v. Beshear, 2014 WL 556729 (W.D. Ky. 2014); DeBoer v. Snyder, 2014 WL 1100794 (E.D. Mich. 2014); Bostic v. Rainey, 2014 WL 561978 (E.D. Va.
11
constitutional amendments and statutes banning same-sex marriage as unconstitutional have redefined marriage to be nothing more than "the tragic deconstruction of civil marriage and its subsequent reconstruction as a glorification of the adult self." Indiana's Amici Brief *14.
Plaintiffs here are not seeking recognition of a new right, but rather, access to an existing fundamental right of marriage, a right deeply rooted in our history. The stated fundamental right to marry in Zablocki, Turner and Loving and remarry in Boddie, does not identify the people seeking to exercise the right, but rather, the Supreme Court's focus in those decisions is rejecting the government's interference in the right to privacy in choosing who to marry or not marry. The right of privacy has been extended by the Supreme Court, which has held that the Due Process Clause protects the sexual relations and privacy of gay men and lesbians. Lawrence, 539 U.S. at 578. The Supreme Court in Lawrence relied on Planned Parenthood v. Casey, where the Supreme Court had previously held that individuals were entitled to constitutional protections in regards to "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing and education" without infringement by the states. Id. at 573-574 (citing Casey, 505 U.S. at 851). The Supreme Court in Lawrence added that "persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexuals do" and the "'promise of the Constitution that there is a realm of personal liberty which the government may not enter'" was protected. Id. at 574 and 578 (quoting Casey, 505 U.S. at 847). Although the Supreme Court did not specify in Lawrence whether the fundamental right to marry extended to same-sex couples, it did address the evolving jurisprudence: Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities,
2014); Tanco v. Haslam, 2014 WL 997525 (M.D. Tenn. 2014); Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013).
12
they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom. Id. at 578-579. As such, tradition on its own is not enough to prevent a constitutional attack,
Ancient lineage of a legal concept does not give it immunity from attack for lacking a rational basis." Heller v. Doe by Doe, 509 U.S. 312, 326, (1993). Most recently, United States v. Windsor, where the Supreme Court held that Section 3 of the Defense of Marriage Act (DOMA) was unconstitutional, is further evidence that laws such as Indiana's DOMA which once thought necessary and proper, only serve to oppress. 133 S.Ct. 2675, 2693 (2013). In Windsor, the Supreme Court explained, The avowed purpose and
practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States. Id. The opinion further explained: DOMAs unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class. Id. Relying on both Windsor and Loving, district courts have ruled that it is clear that the Supreme Court has rejected the idea that the scope of a fundamental right can be limited based on whether a particular group has been permitted to exercise that right in the past. As stated in DeBoer, Taken together, both the Windsor and Loving decisions stand for the proposition that, without some overriding legitimate interest, the state cannot use its domestic relations authority to legislate families out of existence. DeBoer v. Snyder, 2014 WL 1100794 at *16 (E.D. Mich.
13
2014); See also Windsor, 133 S.Ct. at 2709-2710 (Scalia, J., dissenting) ("In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today's opinion....By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.") (emphasis original). As noted by the Supreme Court, the fundamental right to marry describes the right to enter into a relationship of one's choosing for emotional support and public commitment, for secular purposes, and as a precondition of receipt of government benefits, property rights and other tangible benefits. The theory of "traditional marriage" is unaffected by the fact that samesex couples wish to marry, as opposite-sex couples are still entitled to those rights. There is no rational basis to justify Defendants' enforcement Indiana's DOMA, as the statute's purpose and effect has to do with the moral disapproval of homosexuality and does nothing more than oppress. Plaintiffs are entitled to respect for their private lives in the same regard that oppositesex couples are. Defendants' enforcement of Indiana's DOMA, and all other sources of state law that preclude marriage and exclude recognition of lawful marriages for same-sex couples, violates the Due Process Clause, as well as a plethora of Plaintiffs' other constitutional rights. b. Defendants' justification of responsible procreation and optimal child-rearing fails rational basis.
Defendants also claim that the purpose and interest of procreation and optimal childrearing in an opposite-sex household justifies Defendant's enforcement of Indiana's DOMA. Defendants' "philosophy of marriage" is to attract and promote responsible procreation and to encourage a norm for responsible procreation that would prevent accidental and unplanned children. Indiana's Amici Brief *25. Defendants argue that the denial of rights to same-sex couples is justified because the government's purpose is to attract potentially procreative couples 14
to marry and stay married, so as to relieve the burden of the state to support unwanted children and to make sure that children receive necessary care. Id. at 26. Defendants claim that this rationale cannot apply to same-sex couples because they cannot have "unintended" children as only opposite-sex couples can naturally procreate. Id. at 29. As other federal courts have denounced the procreation argument and found it lacks a rational basis, Defendants' rationale here cannot survive a constitutional attack. First, regardless of whether or not same-sex couples can marry, not all opposite-sex couples procreate and have children, nor is procreation a requirement to marriage. Defendants do not take into consideration couples that are infertile, chose not to have children, are postmenopausal, have had a vasectomy, or even had a sex change. See Davis v. Summers, 1 N.E.3d 184, 189 (Ind. Ct. App. 2013) (finding that a marriage between persons of the same gender, where one spouse obtained a sex change, was found to be a valid marriage in Indiana). Clearly, after one party has had a sex change, accidental procreation is no longer possible. Additionally, Indiana allows first cousins to marry after the age of sixty-five, presumably when it can be inferred the parties can no longer procreate. Ind. Code 31-11-1-2. Further, Indiana does not check the procreative ability of parties who marry in Indiana or in opposite-sex marriages from other states, nor is there a registry for any out of state marriage. Defendants have even conceded that it would be a tremendous intrusion on individual privacy to inquire of every couple wishing to marry, whether they intended to procreate. Indiana's Amici Brief *28. Second, excluding same-sex couples from marriage does not ban them from having children. For instance, many same-sex couples are using the assistance of artificially assisted reproduction to have children. In addition, same-sex couples are also raising children from prior relationships. Furthermore, Indiana allows same-sex couples to adopt. In Re Adoption of
15
M.M.G.C., 785 N.E.2d 267, 270 (Ind. Ct. App. 2003). In M.M.G.C., the court found, "The state has a strong interest in providing stable homes for children" and "placement of children with adoptive families furthers the interests of both the child and the state." Id. at 270. The court also noted the socioeconomcal benefits in allowing same-sex adoptions: "Such an adoption also legally entitles the child to both parents' employer-and/or government-sponsored health and disability insurance; education, housing, and nutrition assistance; and social security benefits." Id. Further, the court noted, "Allowing a second parent to share legal responsibility for the
financial, spiritual, educational, and emotional well-being of the child in a stable, supportive, and nurturing environment can only be in the best interest of that child." Id. at 270-271. Defendants' enforcement of Indiana's DOMA contradicts its interest in providing for the financial, spiritual, educational, and emotional well-being of a child in a stable, supportive, and nurturing environment. Ex. 4, p. 7. Allowing same-sex marriage and the recognition thereof, actually provides another source of taking care of children. Third, excluding same-sex couples from marriage does not make it more likely that opposite-sex couples will marry or that their marriages will stay intact. Generally, courts have found "permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages." Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 972 (N.D. Cal. 2010). Since Indiana's DOMA passed, statistics show that the number of paternity cases,
termination of parental rights, and CHINS cases. Indiana Judicial Service Report (2011), Vol. 1, p. 94 available at http://www.in.gov/judiciary/admin/files/rpts-ijs-2011-review.pdf. The
statistics in Indiana make it clear that the justification for encouraging "responsible procreation"
16
is not working to encourage opposite-sex couples to marry or remain married. Rather, using Defendants' own rationale, Defendants should encourage same-sex marriage. Fourth, there are no studies or evidence indicating that same-sex couples lack the ability to be in as successful relationship or successfully raise children as opposite-sex couples, which Defendants believe is the optimal family standard. The Eastern District of Virginia specifically found that [t]he 'for-the-children' rationale rests upon an unconstitutional, hurtful and unfounded presumption that same-sex couples cannot be good parents." Bostic v. Rainey, 2014 WL 561978 at *19 (E.D. Va. 2014). In reaching its determination, the Bostic Court cited both Troxel v. Granville and Stanley v. Illinois and to further prove such presumptions are invalid. Id.; Troxel v. Granville, 530 U.S. 57 (2000); Stanley v. Illinois, 405 U.S. 645, 653 (1972). In Stanley, the Supreme Court held that the State could not conclusively presume that any particular unmarried father was unfit to raise his child and the Due Process Clause required a more individualized determination. Stanley, 405 U.S. at 658. In Troxel, the Supreme Court noted that the demographic changes of the past century make it difficult to speak of an average American family. Troxel, 530 U.S. at 63. As the Michigan District Court noted in the DeBoer decision, there is a consensus within the professional associations in the psychological and sociological fields that children of same-sex couples do just as well as children of opposite-sex couples. 2014 WL 1100794 at *4. Relying on several experts in reaching its decision, the court quoted David Brodzinsky's expert witness report as follows: Every major professional organization in this country whose focus is the health and well-being of children and families has reviewed the data on outcomes for children raised by lesbian and gay couples, including the methods by which the data were collected, and have concluded that these children are not disadvantaged compared to children raised in heterosexual parent households. Organizations expressing support for parenting, adoption, 17
and/or fostering by lesbian and gay couples include (but are not limited to): American Medical Association, American Academy of Pediatrics, American Psychiatric Association, American Academy of Child and Adolescent Psychiatry, American Psychoanalytic Association, American Psychological Association, Child Welfare League of America, National Association of Social Workers, and the Donaldson Adoption Institute. Id. (quoting DeBoer Pls.' Ex. 30 at 21); Ex. 4, p. 4. Another expert in DeBoer, Michael Rosenfeld, a sociologist, confirmed that same-sex couples in legally recognized unions exhibit the same couple stability rates as their heterosexual married counterparts. 2014 WL 1100794 at *3. The DeBoer Court found Rosenfelds testimony to be highly credible and gave it great weight. Id. at *4. The court noted that his research convincingly shows that children of samesex couples do just as well in school as the children of heterosexual married couples, and that same-sex couples are just as stable as heterosexual couples. Id. Powell concurs with
Rosenfelds assessment as being scientifically informed, thorough and balanced. Ex. 4, p. 5. Powells assessment of Rosenfeld, along with his own findings and conclusions that the social science evidence is persuasive in challenging a rational basis for denying marital rights to samesex couples. Ex. 4, p. 7. Identical to the ruling in Windsor, there is no legitimate purpose to overcome the harmful and disparaging effects of Defendants' enforcement of Indiana's DOMA. 133 S.Ct. at 26952696. The Supreme Court described the principal purpose and effect of the Anti-Recognition Laws: By this dynamic DOMA undermines both the public and private significance of statesanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U.S. 558, 123 S.Ct. 2472, and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand 18
the integrity and closeness of their own family and its concord with other families in their community and in their daily lives. Id. at 2694. The only effect of the moral and political bans have on children's well-being is harming the children of same-sex couples, who are denied the protection and stability of having parents who are legally married. 5 As such, conferring marital status for same-sex couples would confer legitimacy and a level of family authenticity that would otherwise be difficult for families with same-sex parents to achieve. Ex. 4, p. 7. Although the welfare of children is a legitimate state interest, limiting marriage and its recognition to opposite-sex marriage lacks any rational basis and bears no relation to such an interest. The disparate treatment accorded by Defendants' enforcement of Indiana's DOMA is not rationally related to a legitimate government purpose and furthers no legitimate state interest which can justify its intrusion into the personal and private life of same-sex couples. Plaintiffs have a liberty, property, and privacy interest in their marital status and should be entitled to rights, responsibilities, benefits and protections regardless of who they choose to marry. Defendants' enforcement of Indiana's DOMA violates Plaintiffs' due process rights for the same reasons it violates the rights guaranteed to Plaintiff's under the Equal Protection Clause, as described below. Defendants' enforcement of Indiana's DOMA cannot survive rational basis review, let alone strict scrutiny, and, therefore, must be struck down. B. Defendants' Enforcement of Indiana's DOMA Infringes Plaintiffs' Fundamental Right of Access to the Courts
Access to courts is an essential aspect of due process and a state must afford to all individuals a meaningful opportunity to be heard if it is to fulfill the promise of the due process
5
As stated in the first state court opinion upholding same-sex marriage, "Extending civil marriage to same-sex couples reinforces the importance of marriage to individuals and communities. That same-sex couples are willing to embrace marriage's solemn obligations of exclusivity, mutual support, and commitment to one another is a testament to the enduring place of marriage in our laws and in the human spirit." Goodridge v. Dept. of Public Health, 798 N.E.2d 941, 962 (Mass. 2003).
19
clause. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950). Article 1, 12 of the Indiana Constitution prohibits denial of access to courts: "All courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase; completely; and without denial; speedily, and without delay." Ind. Const. Art. I, 12. The Supreme Court in Boddie v. Connecticut ruled that the State's refusal to admit appellants to its courts due to an inability to pay a filing fee, where the court is the sole means for obtaining a divorce, must be regarded as the equivalent of denying them an opportunity to be heard and a denial of due process pursuant to the Fourteenth Amendment. 401 U.S. 371, 381 (1971). The Supreme Court held a State may not, consistent with the obligations imposed on it by the Due Process Clause, pre-empt the right to dissolve this legal relationship without affording all citizens access to the means it has prescribed for doing so. Id. at 383 (emphasis added). Appellants in Boddie were faced with exclusion from the only forum effectively empowered to settle their disputes." Id. at 376-377; See also United States v. Kras, 409 U.S. 434, 444-445 (1973) (distinguishing Boddie, ruling that appellants' inability in Boddie to dissolve their marriages, in part due to the state's monopoly on dissolutions, seriously impaired their freedom to pursue other protected associational activities and the fundamental right to remarry). As the Supreme Court correctly noted in Boddie and Kras, states have a monopoly in granting a divorce and the court system is the only means in which an individual can obtain a divorce in Indiana. Plaintiffs are significantly harmed in their inability to obtain a divorce because Indiana's DOMA offers them no right to an equitable division of property under Indiana law. By being denied access to courts, same-sex couples have no redress and would have to, in violation of the right to travel, physically relocate to another state in order to file for a divorce.
20
Indiana's DOMA impairs their freedom to pursue other protected associational activities by requiring them to remain married indefinitely and as with Linda, in an unsafe relationship. Therefore, Defendants and the State of Indiana must recognize lawful solemnized same-sex marriages in order to afford to Plaintiffs and all individuals a meaningful opportunity to be heard if it is to fulfill the promise of the Due Process Clause. C. Defendants' Enforcement of Indiana's DOMA Infringes Plaintiffs' Fundamental Right to Travel
The Supreme Court has held that the right to travel and interstate migration within the United States is a basic fundamental right, pursuant to the privileges and immunities clause. Shapiro v. Thompson, 394 U.S. 618 (1969). The Supreme Court has long "recognized that... our constitutional concepts of personal liberty... require that all citizens be free to travel throughout... our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement." Id. at 629. State laws that have "'no other purpose than to chill the assertion of constitutional rights by penalizing those who choose to exercise them, then it (is) patently unconstitutional.'" Id. at 631 (quoting United States v. Jackson, 390 U.S. 570, 581 (1968)). In Shapiro, the Supreme Court declared unconstitutional a law that imposed a one-year residency requirement in order to obtain welfare benefits as it violated the right to travel because the purpose of the law was to discourage migration of indigent people into the state. Id. The Supreme Court held, "Since the classification here touches on the fundamental right of interstate movement, its constitutionality must be judged by the stricter standard of whether it promotes a compelling state interest." Id. at 638; See also Memorial Hospital v. Maricopa County, 415 U.S. 250, 261-262 (1974) (holding "The right to interstate travel must be seen as insuring new residents the same right to vital government benefits and privileges in the states to which they migrate as are enjoyed by other residents." (emphasis added)). 21
In Saenz v. Roe, the Supreme Court held law restricting a new resident's welfare benefits to the level of the state where the person moved from for the first year of residence was unconstitutional. 526 U.S. 489, 500 (1999). The right to travel encompasses and "protects the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State." Id.; but see Sosna v. Iowa, 419 U.S. 393 (1975) (holding that a oneyear residency ban to file for divorce was constitutional because a party can eventually qualify to file for a divorce and the law protected dissolution decrees from collateral attacks from other jurisdictions). Just recently, a federal district court in Ohio commented on the right to travel guaranteed by the United States Constitution: Couples moving from state to state have an expectation that their marriage and, more concretely, the property interests involved with itincluding bank accounts, inheritance rights, property, and other rights and benefits associated with marriagewill follow them. When a state effectively terminates the marriage of a same-sex couple married in another jurisdiction, it intrudes into the realm of private marital, family, and intimate relations specifically protected by the Supreme Court. Obergefell v. Wymyslo, 962 F. Supp. 2d 968, 979 (S.D. Ohio 2013). Defendants' enforcement of Indiana's DOMA, specifically Indiana's Anti-Recognition Statute, unreasonably restricts Plaintiffs' freedom to travel. Plaintiffs have the right to have an expectation that their marriage, and the vital government benefits and privileges associated with marriage, follow them in whatever state they choose to live. Defendants' refusal to recognize Plaintiffs' lawfully solemnized marriages entered into in the Iowa places an unreasonable burden and restriction on Plaintiffs' constitutional right to travel, as Plaintiffs are forced to decide whether to continue living in Indiana, a state that refuses to recognize their lawfully solemnized marriages, or relocate to another state in order to receive recognition. 22
Additionally, should Linda decide to relocate to Iowa, she would be forced to leave her job, her home, her ties to Indiana and must live in Iowa for one year before she would qualify for residency purposes in order to file for a divorce. See Iowa Code 598.5. Even if Linda would choose to relocate to another state in order to obtain a divorce, there would be issues of whether that state would have jurisdiction over her spouse and her dissolution decree would be subject to collateral attack as recognized in Sosna. Unlike the appellants in Sosna, who would eventually be able to obtain divorces, Linda and other same-sex couples will never qualify to be eligible for a divorce despite meeting the residency requirements to file. Therefore, Defendants'
enforcement of Indiana's DOMA is patently unconstitutional as it infringes on the Plaintiffs' constitutional rights and the state has no compelling interest in not recognizing legally solemnized marriages from other states. II. DEFENDANTS' ENFORCEMENT OF INDIANA'S DOMA VIOLATES THE EQUAL PROTECTION CLAUSE The Equal Protection Clause provides that a state shall not "deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, 1. Analysis of the Equal Protection Clause is necessary when a state law causes disparate treatment between similarly circumstanced persons. Plyler v. Doe, 457 U.S. 202, 216 (1982). Generally a law is constitutional so long as there is a rational relationship between the disparity and a legitimate government interest. Heller v. Doe by Doe, 509 U.S. 312, 320 (1993). When the disparate treatment affects a suspect class or the law impacts a fundamental right, the law is subject to heightened scrutiny, meaning there must exist a compelling state interest to which the law is narrowly tailored to address. Loving v. Virginia, 388 U.S. 1, 11 (1967); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). Defendants' enforcement of Indiana's DOMA unconstitutionally violates the Equal Protection Clause. This law is subject to heightened scrutiny for two reasons: 23
First, because the law creates disparate treatment for a suspect class; and second, because the law infringes the fundamental right to marry. However, even if Indiana's DOMA is reviewed under a rational basis analysis it cannot survive a constitutional review because there is no legitimate state interest which is rationally related to the disparate impact caused by the law. A. Defendants' Enforcement of Indiana's DOMA is Subject to Heightened Scrutiny i. Defendants' enforcement of Indiana's DOMA classifies Plaintiffs' based on sex and, therefore, is subject to heightened scrutiny.
Indianas DOMA creates classifications based on sex. The statute by its terms only permits members of the opposite sex to marry, and only marriages between members of the opposite sex will be recognized under Indiana law. Ind. Code 31-11-1-1. Therefore, a man may only marry a woman and a woman may only marry a man for the marriage to be legally recognized in Indiana. When a classification is made based on sex, the court must apply a heightened scrutiny. United States v. Virginia, 518 U.S. 515, 532-533 (1996). In applying such heightened scrutiny, the court must determine whether the proffered justification is exceedingly persuasive. The burden of justification is demanding and it rests entirely on the State. The State must show at least that the [challenged] classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives. Id. (internal quotations omitted). Defendants' enforcement of Indiana's DOMA classifies Plaintiffs based on their sex. Therefore, this Court should apply heightened scrutiny. ii. Defendants' enforcement of Indiana's DOMA classifies Plaintiffs' based on sexual orientation and, therefore, is subject to heightened scrutiny.
Indiana's DOMA clearly classifies individuals based upon their sexual orientation. It first stipulates that "[o]nly a female may marry a male. Only a male may marry a female." Ind. Code 24
31-11-1-1(a). Furthermore, "[a] marriage between persons of the same gender is void in Indiana." Ind. Code 31-11-1-1(b). This law, by its terms, treats heterosexual and homosexual persons differently; thereby, creating a classification based on sexual orientation. classification should be subject to heightened scrutiny. The Supreme Court has held that heightened scrutiny applies when a class has been subjected to discrimination; the class exhibits obvious, immutable, or distinguishing characteristics that define it as a discrete group; and the class is a minority or politically powerless. Lyng v. Castillo, 477 U.S. 635, 638 (1986) (citing Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 313-314 (1976)). Courts must also consider whether the distinguishing characteristics of the class affect a class member's ability to contribute to society. City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 440-441 (1985). In accordance with this analysis, Such
classifications based on sexual orientation should be subject to heightened scrutiny. First, homosexuals as a class have been subjected to a history of discrimination. The district court in Obergefell highlighted examples of such discrimination, such as Congress's prohibition on gay individuals from entering the country in 1952 and President Eisenhower's executive order requiring that all homosexual federal employees be discharged, a policy which was in place from 1953 until 1975. 962 F. Supp. 2d at 987-988. More recently, numerous states have passed legislation banning same-sex marriage in response to Hawaii's ruling that such a prohibition violated its state constitution. Bourke v. Beshear, 2014 WL 556729, at *1 (W.D. Ky. 2014). In addition to the states, Congress passed the Defense of Marriage Act, which in part refused to recognize same-sex marriages as marriage under federal law, a provision which the Supreme Court held to be unconstitutional in Windsor. 1 U.S.C. 7; U.S. v. Windsor, 133 S.Ct. 2675 (2013) (holding that such law violated equal protection and due process rights guaranteed
25
by the Fifth Amendment). The Seventh Circuit has also acknowledged such discrimination by stating, "Homosexuals have suffered a history of discrimination and still do." Ben-Shalom v. Marsh, 881 F.2d 454, 465 (7th Cir. 1989). The Supreme Court has also described this history of discrimination and stated that for centuries there have been powerful voices to condemn homosexual conduct. Lawrence, 539 U.S. at 571. Second, homosexuals are a class which exhibits obvious, immutable, and distinguishing characteristics that define them as a group. Recent district courts addressing this issue have found that "sexual orientation is so fundamental to a person's identity that one ought not be forced to choose between one's sexual orientation and one's rights as an individual -- even if such a choice could be made." Obergefell, 962 F. Supp. 2d at 991 (citing Lawrence, 539 U.S. at 576577); See also De Leon v. Perry, 2014 WL 715741, at *13 (W.D. Tex. 2014). Furthermore, these distinguishing characteristics have no bearing on the person's ability to contribute to society. See Windsor v. United States, 699 F.3d 169, 182 (2d Cir. 2012) ("There are some distinguishing characteristics, such as age or mental handicap, that may arguably inhibit an individual's ability to contribute to society....[b]ut homosexuality is not one of them."). Finally, homosexuals are a minority which have struggled against the political power of a majority. Homosexuals lack of political power is clear from Indiana's consistent efforts to pass a constitutional amendment banning same-sex marriages and from the national struggle of samesex couples to have their relationships recognized. Recently both the Indiana House and Senate passed House Joint Resolution 3 which would constitutionally define "[o]nly a marriage between one (1) man and one (1) woman shall be valid or recognized as marriage in Indiana." H.J. Res. 3, 118th Gen. Assem., Second Reg. Sess. (Ind. 2014). Additionally, the political struggle of
homosexuals as a class at a national level is made clear by the number of recent federal lawsuits
26
filed to address this very issue. Since Windsor all eight district courts to address the issue have granted relief to plaintiffs whose constitutional rights were infringed by state laws. Bishop v. United States, 2014 WL 116013 (N.D. Okla. 2014); Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013); De Leon, 2014 WL 715741; Obergefell, 962 F. Supp. 2d 968; Bourke, 2014 WL 556729; DeBoer, 2014 WL 1100794; Bostic, 2014 WL 561978; Tanco v. Haslam, 2014 WL 997525 (M.D. Tenn. 2014). This turn to the federal courts displays the classs political struggle against the majority which implemented such discriminatory laws. The Seventh Circuit Court of Appeals has previously applied rational basis in its Equal Protection Clause review of classifications based on sexual orientation. Schroeder v. Hamilton, 282 F.3d 946, 950-951 (7th Cir. 2002). However, that case relied in part on the analysis applied by the Supreme Court in Bowers v. Hardwick. 478 U.S. 186, 196 (1986). Since Schroeder the Supreme Court has ruled that Bowers was not correct when it was decided.[and] [i]t ought not to remain binding precedent. Lawrence 539 U.S at 578. In Lawrence, the Supreme Court did not expressly state the level of scrutiny applied; however, the Court did not presume the constitutionality of the law as is typical of a rational basis review and required the state to provide a legitimate state interest in order to justify the harm caused. Id. Although the language "legitimate state interest" would reflect a rational basis review, placing the burden on the state indicates a heightened review was in fact applied. The Supreme Court addressed the issue of the federal Defense of Marriage Acts constitutionality in Windsor. 133 S.Ct. 2675. Similar to Lawrence, the Supreme Court again did not expressly state the level of scrutiny applied. Id. However, the Supreme Court seemed to apply a heightened level of scrutiny than rational basis. See Id. at 2706 (Scalia, J., dissenting). This line of cases since Lawrence supports a heightened level of scrutiny to be applied in the
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analysis of sexual orientation. There has only been one circuit court of appeals decision since Windsor to address the level of scrutiny that applies to classifications based on sexual orientation. SmithKline Beecham Corp v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014). That court applied strict scrutiny. Id. at 483-484. Defendants' enforcement of Indiana's DOMA classifies Plaintiffs based on their sexual orientation. Therefore, this Court should apply heightened scrutiny. iii. Defendants' enforcement of Indiana's DOMA infringed on Plaintiffs' fundamental rights and is, therefore, subject to heightened scrutiny.
If a fundamental right is at issue, analysis under Equal Protection Clause is subject to heightened scrutiny. Reynolds v. Sims, 377 U.S. 533, 562 (1964) (Any infringement of a fundamental right must be carefully and meticulously scrutinized.); See also Harper v. Virginia State Bd., 383 U.S. 663, 670 (1966) (Where fundamental rights and liberties are asserted under the Equal Protection Clause, classifications which might invade or restrain them must be closely scrutinized and carefully confined.). As previously discussed in Section I, Defendants' enforcement of Indianas DOMA restricts the fundamental right to marry; therefore, the appropriate analysis for purposes of equal protection is strict scrutiny. B. Defendants' Enforcement of Indiana's DOMA Cannot Withstand Rational Basis Review as there is no Legitimate State Interest Rationally Related to the Disparate Impact Caused
As addressed above, even if Indiana's DOMA is reviewed under rational basis, the statute is unconstitutional because there is no legitimate state purpose. However, even if Defendants were to provide such a purpose, in order to meet rational basis review under Equal Protection Clause, there must be "a rational relationship between the disparity of treatment and some legitimate governmental purpose." Heller, 509 U.S. at 320. This analysis "ensure[s] that
classifications are not drawn for the purpose of disadvantaging the group burdened by the law." 28
Romer v. Evans, 517 U.S. 620, 633 (1996). There is no rational relationship between the disparity of treatment between same-sex married couples and opposite sex married couples and the State's purported purpose to encourage responsible procreation. Defendants' enforcement Indiana's Anti-Recognition Statute creates disparity of treatment between same-sex married couples and opposite-sex married couples; however, this disparity bears no relationship to the expressed purpose of "encouraging biological parents to stay together for the sake of the children produced by their sexual union." Indiana's Amici Brief *14. The refusal to recognize the legally solemnized marriage of a same-sex couple cannot rationally be claimed to encourage heterosexual couples to get married or remain married for the sake of the children born unto them. The lack of a rational relationship between this disparity and purported purpose is made clear by the fact that opposite-sex couples who are married in a different state are not questioned by the state of Indiana as to their ability to procreate prior to Indiana recognizing their lawful marriage. Furthermore, every district court to address this argument since Windsor has found that it failed rational basis. See Bishop, 2014 WL 116013, at *29 ("Marriage is incentivized for naturally procreative couples to precisely the same extent regardless of whether same-sex couples (or other non-procreative couples) are included."); Kitchen, 961 F. Supp. 2d at 1212-1213; De Leon, 2014 WL 715741, at *14-16; Obergefell, 962 F. Supp. 2d at 994-95; Bourke, 2014 WL 556729, at *8; DeBoer, 2014 WL 1100794, at *12-13; Bostic, 2014 WL 561978, at *20-21. Because Defendants' enforcement of Indiana's DOMA unconstitutionally violates the Equal Protection Clause, this Court should grant Plaintiffs' Motion for Summary Judgment as there are no genuine issues of material fact and Plaintiffs are entitled to judgment as a matter of law.
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III.
DEFENDANTS' ENFORCEMENT OF INDIANA'S DOMA VIOLATES THE ESTABLISHMENT CLAUSE The Establishment Clause provides, "Congress shall make no law respecting the
establishment of religion." U.S. Const. amend. I.
The Fourteenth Amendment of the United
States Constitution imposes the First Amendment's "substantive limitations" on the State's legislative power. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 301 (2000) (citing Wallace v. Jaffree, 472 U.S. 38, 49 (1985)). The Supreme Court has stated, "The First Amendment was adopted to curtail the power of Congress to interfere with an individual's freedom to believe, to worship, and to express himself in accordance with the dictates of his own conscience." Wallace, 472 U.S. at 49. The Establishment Clause "mandates governmental neutrality between religion and religion, and between religion and nonreligion." Epperson v. Arkansas, 393 U.S. 97, 104 (1968) (citations omitted). The Supreme Court articulated a three-pronged test to determine if a law violates the Establishment Clause. 6 Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971). To satisfy the threepronged test the statute must: "First...have a secular legislative purpose; second, its principal or primary effect must be one that neither advance nor inhibits religion; finally,...not foster 'an excessive government entanglement with religion.'" Id. (quoting Walz v. Tax Comm'n of the City of New York, 397 U.S. 664, 674 (1970); citing Bd. of Educ. v. Allen, 392 U.S. 236, 243 (1968)). Indiana Code 31-11-1-1 violates the Establishment Clause and is unconstitutional because it does not have a secular purpose and has the primary effect of advancing religion.
See also Santa Fe Indep. Sch. Dist., 530 U.S. at 314; Edwards v. Aguillard, 482 U.S. 578, 582-583 (1987); Wallace, 472 U.S. at 56; Larkin v. Grendel's Den, Inc., 459 U.S. 116, 123 (1982); Widmar v. Vincent, 454 U.S. 263, 271 (1981); Stone v. Graham, 449 U.S. 39, 40 (1980) (per curium); Comm. for Pub. Educ. and Religious Liberty v. Nyquist, 413 U.S. 756, 772-773 (1973))
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A.
Defendants' Enforcement of Indiana's DOMA Does Not Have a Sincere Secular Purpose
When applying the secular purpose prong of the Lemon test, "it is appropriate to ask 'whether the government's actual purpose is to endorse or disapprove of religion.'" Wallace 472 U.S. at 56 (quoting Lynch v. Donnelly, 465 U.S. 668, 690-691 (1984) (O'Connor, J., concurring)). In determining the purpose of a statute, a court should give the state's
"characterization...some deference. But it is nonetheless the duty of the courts to 'distinguis[h] a sham secular purpose from a sincere one.'" Santa Fe Indep. Sch. Dist., 530 U.S. at 308 (quoting Wallace, 472 U.S. at 75 (O'Connor, J., concurring)). A court's inquiry into the purpose of a statute "[must include] an examination of the circumstances surrounding its enactment." Id. at 315. If a statute does not have a secular purpose, there is no need for a court to consider the second or third prong. Edwards v. Aguillard, 482 U.S. 578, 585 (1987) (quoting Wallace, 472 U.S. at 56). A long history or deep-rooted tradition is not sufficient to satisfy the purpose prong, as the Supreme Court has stated, "No one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence and indeed predates it." Walz, 397 U.S. at 678. Defendants, as previously argued by the Attorney General, allege that Indiana's DOMA provides a traditional definition of marriage which "reflects and maintains deep-rooted traditions of our Nation," while "encouraging biological parents to stay together for the sake of the children produced by their sexual union." Indiana's Amici Brief *14. The alleged purpose put forth by the Defendants for Indiana's DOMA is a sham secular purpose in an attempt to hide the real purpose. The real purpose of Indianas DOMA is to further certain Judeo-Christian interpretations of the Bible. This is particularly evident by the 31
fact that the proposed secular purpose is not furthered by the statute and could be furthered by other means that do not rely on Judeo-Christian interpretations of the Bible. Indiana's DOMA lacks a valid secular purpose. As such, it violates the Establishment Clause. Therefore, this Court should enter summary judgment in favor of Plaintiffs. B. Defendants' Enforcement of Indiana's DOMA Has the Primary Effect of Advancing Religion
The effect prong of the Lemon test requires that the statute at issue must have "a primary effect that neither advances nor inhibits religion." Sch. Dist. of Abington Twp., Pa. v. Schempp, 374 U.S. 203, 222 (1963). If a statute only "'confers an 'indirect,' 'remote,' or 'incidental' benefit upon [religion]'" it is not unconstitutional. Lynch, 465 U.S. at 683 (citing Comm. for Pub. Educ. and Religious Liberty v. Nyquist, 413 U.S. 759, 771 (1973)). As discussed above, the "traditional definition of marriage" is based on certain JudeoChristian interpretations of the Bible. Allowing the Defendants and the State of Indiana to continue to define marriage based on these religious interpretations has the primary effect of advancing specific religious beliefs. By enforcing a religious-based definition of marriage, the Defendants are no longer neutral, which the Constitution requires. Defendants' enforcement of Indiana's DOMA shows government approval to a specific set of religious beliefs, which has the effect of sending a message to those who do not share those religious beliefs that their viewpoints are not as valuable as the religious beliefs approved by the majority. This ratification of specific religious beliefs, or any religious beliefs, is not appropriate for the Defendants, and should be left to the individual to choose based on his or her own individual beliefs. This advancement of specific religious beliefs violates the second prong of the Lemon test and, therefore, Indiana's DOMA is unconstitutional because it violates the Establishment Clause. Therefore, this Court should enter summary judgment in favor of Plaintiffs. 32
IV.
DEFENDANTS' ENFORCEMENT OF INDIANA'S DOMA VIOLATES THE FULL FAITH AND CREDIT CLAUSE The Full Faith and Credit Clause provides, "Full faith and credit shall be given in each
state to the public acts, records and judicial proceedings of every other state." U.S. Const. art. IV, 1. The Full Faith and Credit Clause "substituted a command for the earlier principles of comity and thus basically altered the status of the States as independent sovereigns." Estin v. Estin, 334 U.S. 541, 546 (1948) (citation omitted). The Supreme Court has articulated that the purpose of the Full Faith and Credit Clause: 'was to alter the status of the several states as independent foreign sovereignties, each free to ignore the obligations created under the laws or by the judicial proceedings of the others, and to make them integral parts of a single nation throughout which a remedy upon a just obligation might be demanded as of right, irrespective of the state of its origin.' Baker v. General Motors Corp., 522 U.S. 222, 232 (1998) (quoting Milwaukee County v. M.E. White Co., 296 U.S. 268, 277 (1935)). However, "the Full Faith and Credit Clause does not compel 'a state to substitute the statutes of other states for its own statues...which it is competent to legislate." Baker, 522 U.S. at 232 (quoting Pac. Employers Ins. Co. v. Indus. Accident Commn, 306 U.S. 493, 501 (1939)). Indiana state courts have stated that "on comity grounds, Indiana will accept as legitimate a marriage validly contracted in the place where it is celebrated." Mason v. Mason, 775 N.E.2d 706, 709 (Ind. Ct. App. 2002) (citing Bolkovac v. State, 98 N.E.2d 250, 254 (Ind. 1951)). In Mason v. Mason, Indiana recognized a first cousin marriage entered into in Tennessee as valid, even though the couple could not have legally entered the marriage in Indiana. 775 N.E.2d at 708-709. However, Indiana is not required to "apply a sister state's law if such law violate[s] Indiana public policy." Id. at 709.
33
Indiana's Anti-Recognition Statute specifically provides that a same-sex marriage legally solemnized in another state is void in Indiana. Ind. Code 31-11-1-1(b). Plaintiffs entered into legally solemnized marriages in the State of Iowa. Ex. 1 at 5; Ex. 2 at 5; Ex. 3 at 5. Upon entering into their respective marriages, Plaintiffs returned to the State of Indiana, which refused to recognize the benefits and obligations of the Plaintiffs marriages because of Indianas AntiRecognition Statute. Defendants' enforcement of Indianas Anti-Recognition Statute denies
Plaintiffs the ability to obtain a divorce in Indianas state court system, enroll their spouse in their State employee benefit plans, file joint state tax returns, and the other benefits and obligations afforded legally married couples as set forth in Plaintiffs Complaint. Compl. [dkt. 1 at 12-15, 55, 58, 59]; Ex. 1 at 14, 15, 16, 20, 21, 22; Ex. 2 at 13, 14, 15, 19, 20, 21; Ex. 3 at 10, 11, 12, 16, 17, 18. It is clear that if Plaintiffs were opposite-sex couples who legally solemnized their marriage in Iowa, Defendants and the State of Indiana would recognize Plaintiffs' legally solemnized marriages. Ex. 1 at 23; Ex. 2 at 22; Ex. 3 at 19. However, Defendants argue that Indiana, on comity grounds, is not required to recognize Plaintiffs' same-sex marriages legally solemnized in Iowa because to do so would violate Indiana's public policy. Defendants' reliance on public policy is misplaced because a states power to define and regulate marriagemust respect the constitutional rights of persons. Windsor, 133 S.Ct. at 2691. As discussed supra in Sections I and II, Indianas DOMA, as enforced by Defendants, attempts to regulate and define marriage in a manner that violates the Plaintiffs constitutional rights. Therefore, Defendants' enforcement of Indianas Anti-Recognition Statute is
unconstitutional as it violates the Full Faith and Credit Clause by depriving Plaintiffs of their constitutional rights and the obligations and benefits of their legally solemnized marriages. As
34
such, this Court should grant Plaintiffs Motion for Summary Judgment as there are no genuine issues of material fact and Plaintiffs are entitled to judgment as a matter of law. CONCLUSION As set forth above, Defendants' enforcement Indiana's DOMA violates Plaintiffs' constitutional rights. There are no genuine issues of material fact, and Plaintiffs' are entitled to judgment as a matter of law. As such, this Court should enter judgment declaring Indiana's DOMA unconstitutional and enjoining Defendants from enforcing Indiana's DOMA. Plaintiffs are entitled to recover damages, attorney's fees and cost and this Court should enter a judgment as such.
Respectfully submitted,
/s/ Richard A. Mann Richard A. Mann, Atty. No. 9864-49 /s/ Lisa M. Joachim Lisa M. Joachim, Atty. No. 25322-45 /s/ Todd D. Small Todd D. Small, Atty. No. 28783-49 RICHARD A. MANN, P.C. 3750 Kentucky Avenue Indianapolis, Indiana 46221 Telephone: (317) 388-5600 Facsimile: (317) 388-5622 RMann@RichardMann-LawOffice.com LJoachim@RichardMann-LawOffice.com TSmall@RichardMann-LawOffice.com Attorneys for Plaintiffs
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CERTIFICATE OF SERVICE I hereby certify that on April 21, 2014, a copy of the foregoing Plaintiffs' Brief in Support of Motion for Summary Judgment was filed electronically. Service of this filling will be made on all ECF-registered counsel by operation of the courts electronic filing system. Parties may access this filing through the courts system. I further certify that on April 21, 2014, a copy of the foregoing Plaintiffs' Brief in Support of Motion for Summary Judgment was mailed, by first-class U.S. Mail, postage prepaid and properly addressed to the following: NONE /s/ Todd D. Small Todd D. Small Attorney at Law
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Case 1:14-cv-00405-RLY-TAB Document 20 Filed 04/21/14 Page 1 of 47 PageID #: 66

Richard A. Mann Lisa M. Joachim Todd D. Small Attorneys for Plaintiffs

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our own moral code."

Lawrence v. Texas, 539 U.S. 558, 571 (2003) (quoting Planned

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establishment of religion." U.S. Const. amend. I.

The Fourteenth Amendment of the United

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