UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MARILYN RAE BASKIN, et al.,
Plaintiffs,
v.
PENNY BOGAN, in her official capacity as
Boone County Clerk, et al.,
Defendants.
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Case No. 1:14-cv-00355-RLY-TAB
DEFENDANTS’ COMBINED MEMORANDUM IN SUPPORT OF THEIR MOTION
FOR SUMMARY JUDGMENT AND IN OPPOSITION TO PLAINTIFFS’ MOTIONS
FOR PRELIMINARY INJUNCTION AND MOTION FOR SUMMARY JUDGMENT
ELIZABETH A. KNIGHT
Porter County Administrative Center
155 Indiana Avenue, Ste. 205
Valparaiso, IN 46383
Tel: (219) 465-3329
Fax: (219) 465-3362
eknight@porterco.org
Counsel for Karen Martin
DARREN J. MURPHY
Assistant Hamilton County Attorney
694 Logan St.
Noblesville, IN 46060
Tel: (317) 773-4212
Fax: (317) 776-2369
dmurphy@ori.net
Counsel for Peggy Beaver
NANCY MOORE TILLER
Nancy Moore Tiller & Associates
11035 Broadway, Suite A
Crown Point, IN 46307
Tel: (219) 662-2300
Fax: (219) 662-8739
nmt@tillerlegal.com
Counsel for Michael A. Brown
GREGORY F. ZOELLER
Attorney General of Indiana
THOMAS M. FISHER
Solicitor General
Office of the Attorney General
IGC South, Fifth Floor
302 W. Washington Street
Indianapolis, IN 46204
Tel: (317) 232-6255
Fax: (317) 232-7979
Tom.Fisher@atg.in.gov
Counsel for Greg Zoeller and William C.
VanNess II, M.D.
ROBERT V. CLUTTER
Kirtley, Taylor, Sims, Chadd & Minnette, P.C.
117 W. Main Street
Lebanon, IN 46052
Tel: 765-483-8549
Fax: 765-483-9521
bclutter@kirtleytaylorlaw.com
Counsel for Penny Bogan
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i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................................... iii
STATEMENT OF MATERIAL FACTS NOT IN DISPUTE .........................................................1
LEGAL STANDARDS ...................................................................................................................4
Preliminary Injunction Standard ......................................................................................................4
Summary Judgment Standard ..........................................................................................................5
ARGUMENT ...................................................................................................................................5
I. Defendant Zoeller Is Entitled to Summary Judgment Because He Cannot Provide
Plaintiffs With Any Relief ...................................................................................................5
II. Preliminary Injunctive Relief Is Inappropriate ....................................................................7
A. In challenges to traditional marriage definitions, the Supreme Court has
ruled that injunctions are not appropriate prior to final appellate resolution ...........8
B. Any legally cognizable injury to Plaintiffs is not irreparable, and a
preliminary injunction would not preserve the status quo .....................................10
C. The public interest and balancing of equities weigh against preliminary relief ....17
III. Plaintiffs’ Claims Fail on the Merits ..................................................................................19
A. Plaintiffs lack standing to assert claims for disparate treatment of children
based on marital status of parents and for association, integrity, autonomy,
and self-definition, insofar as those claims relate to “legal recognition of
their parent-child relationships” .............................................................................20
B. There is no constitutional right to have one’s out-of-state same-sex marriage
or civil union recognized in Indiana ......................................................................24
1. There is no due process right to interstate marriage recognition,
particularly where an out-of-state marriage contravenes public policy .....25
2. Indiana’s refusal to recognize the Quasney-Sandler marriage does
not contravene the Equal Protection Clause ..............................................29
C. Indiana’s traditional marriage definition is constitutional .....................................32
1. Baker v. Nelson still controls, and the core meaning of Windsor is to
preserve state prerogatives over marriage ..................................................32
2. No fundamental rights or suspect classes are implicated ...........................35
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ii
a. There is no fundamental right to same-sex marriage, a concept
having no roots in the Nation’s history and traditions ...................35
b. The traditional definition of marriage does not impinge on
rights of personal autonomy, intimate association, self-
definition, etc. ................................................................................37
c. Limiting marriage to the union of a man and a woman does
not implicate a suspect class ..........................................................39
i. Traditional marriage does not discriminate based on
sex ......................................................................................39
ii. Traditional marriage does not discriminate based on
sexual orientation ...............................................................40
iii. Traditional marriage does not discriminate against
children ..............................................................................46
3. Traditional marriage satisfies constitutional review ..................................48
a. States recognize opposite-sex marriages to encourage
responsible procreation, and this rationale does not apply to
same-sex couples ...........................................................................50
b. Many courts have rejected the theory that traditional marriage
is about homosexual animus ..........................................................55
4. No other limiting principle for marriage rights is apparent .......................56
CONCLUSION ..............................................................................................................................60
CERTIFICATE OF SERVICE ......................................................................................................61
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iii
TABLE OF AUTHORITIES
CASES
Adams v. Howerton,
486 F. Supp. 1119 (C.D. Cal. 1980) ........................................................................................50
Alaska Packers Ass’n v. Industrial Accident Comm’n,
294 U.S. 532 (1935) .................................................................................................................24
Alemite Mfg. Corp. v. Staff,
42 F.2d 832 (2d Cir. 1930).......................................................................................................14
Andersen v. King Cnty.,
138 P.3d 963 (Wash. 2006)................................................................................................49, 50
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986) ...................................................................................................................5
Baehr v. Lewin,
852 P.2d 44 (Haw. 1993) .........................................................................................................42
Baker by Thomas v. Gen. Motors Corp.,
522 U.S. 222 (1998) ...........................................................................................................24, 32
Baker v. Nelson,
191 N.W.2d 185 (Minn. 1971).................................................................................................50
Baker v. Nelson,
409 U.S. 810 (1972) .....................................................................................................32, 33, 36
Baker v. Wade,
769 F.2d 289 (5th Cir. 1985) ...................................................................................................43
Bd. of Trs. of Univ. of Ala. v. Garrett,
531 U.S. 356 (2001) .................................................................................................................49
Bishop v. United States ex rel. Holder,
962 F. Supp. 2d 1252 (N.D. Okla. 2014) .............................................................................9, 40
Bostic v. Rainey,
No. 2:13-cv-395, 2014 WL 561978 (E.D. Va. Feb. 13, 2014) ................................9, 34, 37, 56
Bourke v. Beshear,
No. 3:13-CV-750-H, 2014 WL 556729 (W.D. Ky. Mar. 19, 2014) ....................................9, 10
Brock v. State,
85 Ind. 397 (1882)..............................................................................................................46, 47
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iv
Brown v. Board of Education of Topeka,
347 U.S. 483 (1954) .................................................................................................................23
C.E.W. v. D.E.W.,
845 A.2d 1146 (Me. 2004) .......................................................................................................57
Catalano v. Catalano,
170 A.2d 726 (Conn. 1961) .....................................................................................................27
Celebration Int’l, Inc. v. Chosun Int’l, Inc.,
234 F. Supp. 2d 905 (S.D. Ind. 2002) ......................................................................................18
Celotex Corp. v. Catrett,
477 U.S. 317 (1986) ...................................................................................................................5
Certain Underwriters of Lloyd’s v. Gen. Accident Ins. Co. of Am.,
909 F.2d 228 (7th Cir. 1990) .....................................................................................................5
Chicago United Indus., Ltd. v. City of Chicago,
445 F.3d 940 (7th Cir. 2006) .............................................................................................10, 11
Citizens for Equal Prot. v. Bruning,
455 F.3d 859 (8th Cir. 2006) .............................................................................................43, 50
City of Cleburne v. Cleburne Living Center,
473 U.S. 432 (1985) .................................................................................................................44
Cnty. of Sacramento v. Lewis,
523 U.S. 833 (1998) .................................................................................................................35
Cook v. Gates,
528 F.3d 42 (1st Cir. 2008) ......................................................................................................43
Conaway v. Deane,
932 A.2d 571 (Md. 2007) ........................................................................................................50
Cook v. Cook,
104 P.3d 857 (Ariz. Ct. App. 2005) .........................................................................................26
Cunningham v. Cunningham,
206 N.Y. 341 (1912) ................................................................................................................27
Davis v. Federal Election Commission,
554 U.S. 724 (2008) .................................................................................................................22
Dean v. District of Columbia,
653 A.2d 307 (D.C. 1995) .......................................................................................................50
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v
De Leon v. Perry,
No. SA-13-CA-00982-OLG, 2014 WL 715741 (W.D. Texas Feb. 26, 2014) ..........................9
DeBoer v. Snyder,
No. 14-1341, Doc. 22-1 at 3 (6th Cir. Mar. 25, 2014) .............................................................10
Diversified Mortgage Investors v. U.S. Life Title Ins. Co. of New York,
544 F.2d 571 (2d Cir. 1976).....................................................................................................12
E. St. Louis Laborers’ Local 100 v. Bellon Wrecking & Salvage Co.,
414 F.3d 700 (7th Cir. 2005) ...................................................................................................18
Equal. Found. of Greater Cincinnati, Inc. v. City of Cincinnati,
128 F.3d 289 (6th Cir. 1997) ...................................................................................................43
Ex Parte Young,
209 U.S. 123 (1908) ...............................................................................................................6, 7
Family & Children’s Ctr., Inc. v. Sch. City of Mishawaka,
13 F.3d 1052 (7th Cir. 1994) ...................................................................................................22
Gianni Cereda Fabrics, Inc. v. Bazaar Fabrics, Inc.,
335 F. Supp. 278 (S.D. N.Y. 1971)..........................................................................................19
Gomez v. Perez,
409 U.S. 535 (1973) .................................................................................................................48
Gonzales v. North Township of Lake County, Indiana,
4 F.3d 1412 (7th Cir. 1993) ...............................................................................................13, 14
Goodridge v. Dep’t of Pub. Health,
798 N.E.2d 941 (Mass. 2003) ..................................................................................................36
Goodwin v. George Fischer Foundry Sys., Inc.,
769 F.2d 708 (11th Cir. 1985) ...........................................................................................25, 26
Graham v. Med. Mut. of Ohio,
130 F.3d 293 (7th Cir. 1997) ...................................................................................................11
Griswold v. Connecticut,
381 U.S. 479 (1965) .................................................................................................................38
Gunn v. Univ. Comm. to End War in Viet Nam,
399 U.S. 383 (1970) .................................................................................................................14
Harris v. City of Zion,
927 F.2d 1401 (7th Cir. 1991) .................................................................................................13
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vi
Hawkins v. Moss,
503 F.2d 1171 (4th Cir. 1974) .................................................................................................25
Hearne v. Bd. of Educ. of Chicago,
185 F.3d 770 (7th Cir. 1999) .....................................................................................................6
Hemphill v. Orloff,
277 U.S. 537 (1928) .................................................................................................................25
Henry v. Himes,
No. 1:14-cv-00129-TSB, 2014 WL 1512541 (S.D. Ohio Apr. 16, 2014) ...............................10
Herbert v. Kitchen,
134 S. Ct. 893 (Jan. 6, 2014)......................................................................................................9
Hernandez v. Robles,
805 N.Y.S.2d 354 (N.Y. App. Div. 2005) ...............................................................................40
Hernandez v. Robles,
855 N.E.2d 1 (N.Y. 2006) ............................................................................................50, 51, 55
Hesington v. Hesington’s Estate,
640 S.W.2d 824 (Mo. Ct. App. 1982) ......................................................................................27
Hohe v. Casey,
868 F.2d 69 (3d Cir. 1989).........................................................................................................4
Illinois Bell Tel. Co. v. WorldCom Tech., Inc.,
157 F.3d 500 (7th Cir. 1998) .................................................................................................4, 5
In re Kandu,
315 B.R. 123 (Bankr. W.D. Wash. 2004) ................................................................................50
In re Lawrance,
579 N.E.2d 32 (Ind. 1991) .......................................................................................................16
In re M.C.,
195 Cal. App. 4th 197 (2011) ..................................................................................................57
In re Marriage of J.B. & H.B.,
326 S.W.3d 654 (Tex. App. 2010) ...............................................................................50, 51, 56
In re Parentage of L.B.,
122 P.3d 161 (Wash. 2005)......................................................................................................57
In re Paternity of S.R.I.,
602 N.E.2d 1014 (Ind. 1992) ...................................................................................................47
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vii
Jackson v. Abercrombie,
884 F. Supp. 2d 1065 (D. Haw. 2012) .........................................................................40, 49, 50
Johnson v. Robinson,
415 U.S. 361 (1974) ...........................................................................................................35, 48
K.M. v. E.G.,
37 Cal. 4th 130 (2005) .............................................................................................................57
Kerrigan v. Comm’r of Pub. Health,
957 A.2d 407 (Conn. 2008) .....................................................................................................36
Kitchen v. Herbert,
961 F. Supp. 2d 1181 (D. Utah 2013) .............................................................................. passim
Korte v. Sebelius,
735 F.3d 654 (7th Cir. 2013) ...................................................................................................18
LaChappelle v. Mitten,
607 N.W.2d 151 (Minn. Ct. App. 2000) ..................................................................................57
Laikola v. Engineered Concrete,
277 N.W.2d 653 (Minn. 1979).................................................................................................27
Laird v. Tatum,
408 U.S. 1 (1972) .....................................................................................................................23
Lawrence v. Texas,
539 U.S. 558 (2003) ...............................................................................................38, 42, 43, 55
Libertarian Party of Ind. v. Marion Cnty. Bd. of Voter Registration,
778 F. Supp. 1458 (S.D. Ind. 1991) ...........................................................................................6
Lofton v. Sec’y of the Dep’t of Children & Family Servs.,
358 F.3d 804 (11th Cir. 2004) ...........................................................................................43, 50
Loving v. Virginia,
388 U.S. 1 (1967) ............................................................................................................. passim
M.L.B. v. S.L.J.,
519 U.S. 102 (1996) .................................................................................................................41
Manning v. Hunt,
119 F.3d 254 (4th Cir. 1997) .....................................................................................................4
Mason v. Mason,
775 N.E.2d 706 (Ind. Ct. App. 2002)...........................................................................28, 29, 31
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viii
Mathews v. Lucas,
427 U.S. 495 (1976) .................................................................................................................48
Michael H. v. Gerald D.,
491 U.S. 110 (1989) .................................................................................................................53
Morrison v. Sadler,
821 N.E.2d 15 (Ind. Ct. App. 2005)................................................................................. passim
Nguyen v. I.N.S.,
533 U.S. 53 (2001) ...................................................................................................................53
Nordlinger v. Hahn,
505 U.S. 1 (1992) .....................................................................................................................49
Pers. Adm’r of Mass. v. Feeney,
442 U.S. 256 (1979) .................................................................................................................41
Pierce v. Soc’y of Sisters,
268 U.S. 510 (1925) .................................................................................................................38
Preston v. Thompson,
589 F.2d 300 (7th Cir. 1978) .....................................................................................................4
Price-Cornelison v. Brooks,
524 F.3d 1103 (10th Cir. 2008) ...............................................................................................43
Raftopol v. Ramey,
12 A.3d 783 (Conn. 2011) .......................................................................................................57
Reno v. Flores,
507 U.S. 292 (1993) .................................................................................................................52
Roberts v. United States Jaycees,
468 U.S. 609 (1984) .................................................................................................................39
Robicheaux v. Caldwell,
No. 13-5090, 2013 WL 6198279 (E.D. La Nov. 27, 2013) .......................................................7
Roche v. Washington,
19 Ind. 53 (1862)......................................................................................................................28
Romer v. Evans,
517 U.S. 620 (1996) .................................................................................................................43
Schmidt v. Lessard,
414 U.S. 473 (1974) .................................................................................................................14
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ix
Schroeder v. Hamilton Sch. Dist.,
282 F.3d 946 (7th Cir. 2002) ...................................................................................................43
Sclamberg v. Sclamberg,
41 N.E.2d 801 (Ind. 1942) .......................................................................................................28
Sevcik v. Sandoval,
911 F. Supp. 2d 996 (D. Nev. 2012) ......................................................................14, 39, 40, 50
Sherman v. Cmty. Consol. Sch. Dist. 21 of Wheeling Twp.,
980 F.2d 437 (7th Cir. 1992) .....................................................................................................7
Siegel v. LePore,
234 F.3d 1163 (11th Cir. 2000) .................................................................................................4
Simon v. E. Ky. Welfare Rights Org.,
426 U.S. 26 (1976) .....................................................................................................................6
Singer v. Hara,
522 P.2d 1187 (Wash. Ct. App. 1974) ...............................................................................50, 51
Slaughter-House Cases,
83 U.S. 36 (1872) .....................................................................................................................38
Smelt v. County of Orange,
374 F. Supp. 2d 861 (C.D. Cal. 2005) .....................................................................................50
SmithKline Beecham Corp. v. Abbott Labs.,
740 F.3d 471 (9th Cir. 2014) ...................................................................................................43
Standhardt v. Superior Court ex rel. Cnty. of Maricopa,
77 P.3d 451 (Ariz. Ct. App. 2003) ...............................................................................49, 50, 55
Stanley v. Illinois,
405 U.S. 645 (1972) .................................................................................................................46
Steffan v. Perry,
41 F.3d 677 (D.C. Cir. 1994) ...................................................................................................43
T.M.H. v. D.M.T.,
79 So.3d 787 (Fla. Dist. Ct. App. 2011) ..................................................................................57
Tanco v. Haslam,
No. 3:13-cv-01159, 2014 WL 1117069 (M.D. Tenn. Mar. 20, 2014) .....................................10
Tigner v. Texas,
310 U.S. 141 (1940) .................................................................................................................48
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x
Tucker v. Branker,
142 F.3d 1294 (D.C. Cir. 1998) ...............................................................................................41
United States v. Windsor,
133 S. Ct. 2675 (2013) ..................................................................................................... passim
Valley Forge Christian College v. Americans United for Separation of Church & State, Inc.,
454 U.S. 464 (1982) .................................................................................................................13
V.C. v. M.J.B.,
748 A.2d 539 (N.J. 2000).........................................................................................................57
Varnum v. Brien,
763 N.W.2d 862 (Iowa 2009) ............................................................................................36, 37
Veney v. Wyche,
293 F.3d 726 (4th Cir. 2002) ...................................................................................................43
Walgreen Co. v. Sara Creek Prop. Co.,
966 F.2d 273 (7th Cir. 1992) .....................................................................................................4
Washington v. Davis,
426 U.S. 229 (1976) .................................................................................................................41
Washington v. Glucksberg,
521 U.S. 702 (1997) ...........................................................................................................36, 37
Weber v. Aetna Cas. & Sur. Co.,
406 U.S. 164 (1972) .................................................................................................................47
Westinghouse Elec. Corp. v. Free Sewing Mach. Co.,
256 F.2d 806 (7th Cir. 1958) ...................................................................................................12
Wilson v. Ake,
354 F. Supp. 2d 1298 (M.D. Fla. 2005) ...................................................................................50
Winter v. Natural Res. Def. Council, Inc.,
555 U.S. 7 (2008) .......................................................................................................................4
Wis. Educ. Ass’n Council v. Walker,
705 F.3d 640 (7th Cir. 2013) ...................................................................................................49
Wolf v. Walker,
No. 3:14-cv-00064-bbc (W.D. Wisc. Mar. 4, 2014) ................................................................10
Woodward v. United States,
871 F.2d 1068 (Fed. Cir. 1989)................................................................................................43
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FEDERAL STATUTES
28 U.S.C. § 1341 ............................................................................................................................17
42 U.S.C. § 666(a)(5)(G) ...............................................................................................................53
STATE STATUTES
13 Del. Code § 8-201 .....................................................................................................................57
Conn. Gen. Stat. § 46b-20 ..............................................................................................................37
Conn. Gen. Stat. § 46b-20-a...........................................................................................................37
D.C. Code §§ 16-831.01 et seq. .....................................................................................................57
Ind. Code § 16-36-1-3 ....................................................................................................................16
Ind. Code § 16-36-1-7 ....................................................................................................................16
Ind. Code § 29-1-2-7 ......................................................................................................................47
Ind. Code § 29-1-2-8 ......................................................................................................................47
Ind. Code § 31-1-1-1 ......................................................................................................................41
Ind. Code § 31-7-1-2 ......................................................................................................................41
Ind. Code § 31-9-2-88 ....................................................................................................................46
Ind. Code § 31-11-1-1 ..................................................................................................... 6, 8, 42, 46
Ind. Code § 31-11-1-1(a) .............................................................................................................1, 5
Ind. Code § 31-11-1-1(b) .......................................................................................................1, 5, 41
Ind. Code § 31-11-4-2 ....................................................................................................................46
Ind. Code § 31-11-4-4 ....................................................................................................................27
Ind. Code § 31-11-4-11 ..................................................................................................................27
Ind. Code § 31-11-8-6 ........................................................................................................27, 29, 30
Ind. Code § 31-11-11-7 ....................................................................................................................8
Ind. Code § 31-14-6-1 ....................................................................................................................46
Ind. Code § 31-14-7 et seq. ............................................................................................................53
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xii
Ind. Code § 31-14-7-1 ....................................................................................................................47
Ind. Code § 31-14-10-1 ..................................................................................................................46
Ind. Code § 31-14-11 et seq. ..........................................................................................................47
Ind. Code § 31-16-2 et seq. ............................................................................................................47
RULES
Fed. R. Civ. P. 65 .........................................................................................................................7, 8
Fed. R. Civ. P. 65(d) ......................................................................................................................14
REGULATIONS
42 C.F.R. § 482.13(h)(3) ................................................................................................................16
410 Ind. Admin. Code 16.2-3.1-8(b)(9) .........................................................................................16
OTHER AUTHORITIES
Frank Bruni, The New Gay Orthodoxy, N.Y. Times, Apr. 5, 2014, available at
http://www.nytimes.com/2014/04/06/opinion/ sunday/bruni-the-new-gay-
orthodoxy.html .........................................................................................................................45
Harvey M. Applebaum, Miscegenation Statutes: A Constitutional and Social Problem,
53 Geo. L.J. 49 (1964) .............................................................................................................42
Jonathan Turley, One Big, Happy Polygamous Family, NY Times, July 21, 2011 ......................59
Joseph Story, Commentaries on the Conflict of Laws § 113a (Little Brown, & Co.
6th ed. 1865) ............................................................................................................................26
Melanie B. Jacobs, Why Just Two? Disaggregating Traditional Parental Rights and
Responsibilities to Recognize Multiple Parents, 9 J.L. & Fam. Stud. 309 (2007). .................57
Monica Davey, In Diluting Measure to Ban Gay Marriage, Indiana Shows a Shift, N.Y.
Times, Feb. 14, 2014, available at http://www.nytimes.com/2014/02/18/us/ politics/in-
diluting-measure-to-ban-gay-marriage-indiana-shows-a-shift.html ........................................45
Morgan Little, Gay Marriage Movement Wins Significant Victories in 2013
http://www.latimes.com/nation/nationnow/la-pn-gay-marriage-movement-gains-2013-
20131206,0,1888807.story#axzz2zdVzLoIA ..........................................................................45
Restatement (Second) of Conflict of Laws § 283(2) (1971)..........................................................26
Steve Sanders, The Constitutional Right to (Keep Your) Same-Sex Marriage,
110 Mich. L. Rev. 1421 (2012) ................................................................................................30
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xiii
The History of Indiana Law (Bodenhamer and Shepard, eds.) (2006) ..........................................42
Tony Cook & Barb Berggoetz, Same-Sex Marriage Ban Won’t be on November Ballot, The
Indianapolis Star (Feb. 14, 2014), available at
http://www.indystar.com/story/news/politics/2014/02/13/hjr-3-last-minute-maneuver
-could-spare-2nd-sentence-/5455299/ ................................................................................44, 45
Willystine Goodsell, A History of the Family as a Social and Educational Institution (The
Macmillan Company 1915) .....................................................................................................58
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1
DEFENDANTS’ COMBINED MEMORANDUM IN SUPPORT OF THEIR MOTION
FOR SUMMARY JUDGMENT AND IN OPPOSITION TO PLAINTIFFS’ MOTIONS
FOR PRELIMINARY INJUNCTION AND MOTION FOR SUMMARY JUDGMENT
Defendants Greg Zoeller, William C. VanNess II, M.D., Penny Bogan, Michael A.
Brown, Karen M. Martin, and Peggy Beaver respectfully submit this combined memorandum in
support of their motion for summary judgment and in opposition to three motions filed by the
Plaintiffs: (1) Plaintiffs Nikole Quasney, Amy Sandler, A.Q.-S., and M.Q.-S.’s Motion for
Temporary Restraining Order and Preliminary Injunction [Doc. 31]; (2) Plaintiffs Marilyn Rae
Baskin, Esther Fuller, Bonnie Everly, Linda Judkins, Dawn Lynn Carver, Pamela Eanes, Henry
Greene, Glenn Funkhouser, and C.A.G.’s Motion for Preliminary Injunction [Doc. 35]; and (3)
Plaintiffs’ Motion for Summary Judgment [Doc. 38].
STATEMENT OF MATERIAL FACTS NOT IN DISPUTE
Indiana’s Defense of Marriage Act provides that “[o]nly a female may marry a male [and
o]nly a male may marry a female.” Ind. Code § 31-11-1-1(a). In addition, “[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).
Plaintiffs are Indiana residents and comprise five same-sex couples and three minor
children of two of the couples. First Am. Compl. ¶ 1 [Doc. 30]. Four couples are not married:
(1) Marilyn Rae Baskin and Esther Fuller (“Baskin-Fuller couple”); (2) Bonnie Everly and Linda
Judkins (“Everly-Judkins couple”); (3) Dawn Carver and Pamela Eanes (“Carver-Eanes
couple”); and (4) Henry Greene and Glenn Funkhouser, with minor son C.A.G. (“Greene-
Funkhouser couple”). Id. at ¶ 4. Nikole Quasney and Amy Sandler (“Quasney-Sandler couple”),
who have two daughters A.Q.-S. and M.Q.-S., were married in the Commonwealth of
Massachusetts on August 29, 2013. Id. at ¶¶ 27-28. Sandler states that they were married in
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Massachusetts, while on their annual summer vacation to Sandler’s family home, because she
“was afraid that Niki’s health was deteriorating and [she] didn’t know if that trip was going to be
[their] last trip together.” Sandler Decl. ¶ 15 [Doc. 36-10]. Quasney suffers from Stage IV
ovarian cancer and Sandler “worried that this trip could be [her and Niki’s] last opportunity to
get legally married.” Id. at ¶¶ 5, 15.
Plaintiffs assert a variety of harms to personal dignity and pride (see, e.g., Pls.’ Prelim.
Inj. Mem. at 25 [Doc. 36]; Pls.’ Summ. J. Mem. at 1, 4, 8, 18-19 [Doc. 39]), but seek only very
limited direct, tangible relief: The unmarried couples seek marriage licenses from the Defendant
Clerks (Pls.’ Prelim. Inj. Mem. at 29, and the Quasney-Sandler couple seeks a death certificate
for Quasney that lists her as married, with Sandler as her surviving spouse. Quasney’s Prelim.
Inj. Mem. at 32 [Doc. 32]. Plaintiffs also identify several possible ways that lack of marriage
recognition or licensing may affect same-sex couples generally (see Pls.’ Prelim. Inj. Mem. at
26-27; Pls.’ Summ. J. Mem. at 9-10), but assert no facts showing that they presently incur or are
likely in the future to incur any such hypothetical impacts or that any defendants have caused any
such impacts to occur or could provide preliminary or final relief addressing any such
hypothetical harms.
For example, The Quasney-Sandler couple states that they drive across state lines to
receive treatment from a hospital that will recognize their marriage and that they were once
denied family membership benefits at a health club run by a hospital. Quasney’s Prelim. Inj.
Mem. at 5; see also Entry on Pls.’ Mot. for TRO at 4 [Doc. 51] (“The Plaintiffs have shown
cognizable injuries that a TRO can remedy because Niki drives across state lines to receive
treatment from a hospital that will recognize her marriage, [and] Niki and Amy have been denied
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a family fitness membership[.]”). But they do not allege facts showing such actions are required
by, nor fairly traceable to, state or local government action.
Similarly, Plaintiff Linda Judkins states that she was once temporarily barred from the
hospital room of her same-sex partner, Bonnie Everly. Judkins Decl. ¶ 13 [Doc. 36-4] (“I tried
to enter the ICU where Bonnie was, but one nurse tried to keep me out. We had filled out a form
beforehand designating me as a healthcare representative, but it didn’t matter; I was blocked
from being at Bonnie’s side.”). Judkins states, however, that a different nurse eventually allowed
her to enter the room. Id. (“[F]inally a different nurse let me in.”). And again, Plaintiffs assert
no facts showing such actions are traceable to any of the defendants.
Plaintiffs also argue that Indiana’s marriage laws “preclud[e] Plaintiffs Greene and
Funkhouser and other parents of same-sex couples from securing legal recognition of their
parent-child relationships through established legal mechanisms available to married parents
(e.g., the spousal presumption of parenthood, stepparent adoption, and other marital parentage
protections) . . . .” Pls.’ Prelim. Inj. Mem. at 11. Yet Greene and Funkhouser also declare that
the State recognizes them both as adoptive parents of C.A.G. Greene Decl. ¶ 13 [Doc. 36-7];
Funkhouser Decl. ¶ 14 [Doc. 36-8]. Plaintiffs Quasney and Sandler allege that they are the
parents of two minor children and do not assert that Indiana marriage law has interfered with
their legal status as parents. Quasney Decl. ¶¶ 2, 23 [Doc. 36-9]; Sandler Decl. ¶¶ 3, 17.
Ultimately, Plaintiffs seek no particular preliminary or final relief bearing on any of the
general harms they claim same-sex couples suffer by virtue of Indiana’s traditional definition of
marriage or its law precluding recognition of out-of-state same-sex marriages. Aside from their
specific requests for marriage licenses and a specific type of death certificate, Plaintiffs generally
demand only “recognition” of their relationships as marriages.
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LEGAL STANDARDS
Preliminary Injunction Standard
“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on
the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the
balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v.
Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). In the injunction context, “irreparable
harm” is harm that is “not rectifiable by the entry of a final judgment.” Walgreen Co. v. Sara
Creek Prop. Co., 966 F.2d 273, 275 (7th Cir. 1992) (citations omitted). And while in some cases
“[t]he existence of a continuing constitutional violation constitutes proof of an irreparable harm,”
Preston v. Thompson, 589 F.2d 300, 303 n.3 (7th Cir. 1978), “[c]onstitutional harm is not
necessarily synonymous with the irreparable harm necessary for issuance of a preliminary
injunction.” Hohe v. Casey, 868 F.2d 69, 73 (3d Cir. 1989). Even where constitutional
violations are alleged, there must be “a clear showing of irreparable injury which is neither
remote nor speculative, but actual and imminent.” Manning v. Hunt, 119 F.3d 254, 264-65 (4th
Cir. 1997) (internal quotation marks omitted). See also Siegel v. LePore, 234 F.3d 1163, 1177-
78 (11th Cir. 2000) (per curiam) (rejecting the proposition that “the irreparable injury needed for
a preliminary injunction can properly be presumed from a substantially likely equal protection
violation” (citation omitted)).
In addition to irreparable harm, a plaintiff seeking a preliminary injunction must also
show “that the probability of success on the merits is sufficiently high—or the injury from the
enforcement of the order sufficiently great—to warrant a conclusion that the balance of error
costs tilts in favor of relief.” Illinois Bell Tel. Co. v. WorldCom Tech., Inc., 157 F.3d 500, 503
(7th Cir. 1998). When the party opposing the motion for a preliminary injunction is a political
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branch of government, the restraint for issuing such an injunction is particularly high due to
public policy considerations, as “the court must consider that all judicial interference with a
public program has the cost of diminishing the scope of democratic governance.” Id.
Summary Judgment Standard
Summary judgment is proper where there are no genuine issues of material fact and the
moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986); Certain Underwriters of Lloyd’s v. Gen. Accident Ins. Co. of Am., 909 F.2d 228,
231 (7th Cir. 1990). Under this standard, a dispute of fact that is relevant to the moving party’s
legal position will defeat summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). However, the “mere existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for summary judgment; the requirement
is that there be no genuine issue of material fact.” Id. at 247-48 (emphasis in original).
ARGUMENT
I. Defendant Zoeller Is Entitled to Summary Judgment Because He Cannot Provide
Plaintiffs With Any Relief
Plaintiffs have sued to have Indiana’s Defense of Marriage Act, Indiana Code Section 31-
11-1-1, declared unconstitutional. First Am. Compl. at 33. In their Prayer for Relief, they
request that the Court issue judgment “ Preliminarily and permanently enjoining enforcement by
Defendants of Indiana Code Sections 31-11-1-1(a), 31-11-1-1(b), and any other sources of state
law that exclude same-sex couples from marriage or refuse recognition to the marriages of same-
sex couples entered into in another jurisdiction[.]” First Am. Compl. at 33. However, they
request no specific relief from Attorney General Zoeller. See id. at 33-34.
Plaintiffs allege that they have sued the Attorney General because he “has the authority to
enforce the statutes of the State of Indiana, including its provisions related to the marriage ban,
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and has the duty to defend the constitutionality of the enactments of the Indiana Legislature.” Id.
at ¶ 38. However, a federal court may act “only to redress injury that fairly can be traced to the
challenged action of the defendant, and not injury that results from the independent action of
some third party not before the court.” Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42
(1976). Only the parties that actually enforce a challenged statute will be able to redress the
asserted injury, which means that Governors and Attorneys General are not suitable defendants
with respect to laws they do not actually enforce. See Hearne v. Bd. of Educ. of Chicago, 185
F.3d 770, 777 (7th Cir. 1999) (“[T]he plaintiffs have not and could not ask anything of the
governor that could conceivably help their cause [because] the governor has no role to play in the
enforcement of the challenged statutes, nor does the governor have the power to nullify
legislation once it has entered into force.”); Libertarian Party of Ind. v. Marion Cnty. Bd. of
Voter Registration, 778 F. Supp. 1458, 1461 (S.D. Ind. 1991) (holding that claims against the
members of the Indiana State Election Board in a suit seeking to obtain copies of Marion County
voter registration data were not justiciable because the Marion County Board could provide all
requested relief and the State Election Board could not discipline or remove members of the
county board).
The Attorney General has no authority to enforce, or other role respecting, Indiana Code
Section 31-11-1-1, which is the only law Plaintiffs seek to have declared unconstitutional.
Accordingly, Plaintiffs cannot succeed on their claims against the Attorney General, and the
Attorney General is entitled to judgment as a matter of law.
For similar reasons, the Eleventh Amendment bars this action against the Attorney
General because the State of Indiana, as a sovereign entity, has not consented to be sued by the
Plaintiffs. Under the doctrine of Ex Parte Young, “officers of the state, [who] are clothed with
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some duty in regard to the enforcement of the laws of the state, and who threaten and are about
to commence proceedings . . . to enforce against parties affected an unconstitutional act . . . may
be enjoined by a Federal court of equity from such action.” Ex Parte Young, 209 U.S. 123, 155-
56 (1908). Because Young presumes some ability of the defendant state official to enforce the
law at issue, it does not apply where such responsibility is lacking. In Young itself the Court
acknowledged that the sovereign immunity exception it creates applies only when the named
state officials have “some connection with the enforcement of the act[.]” Id. at 157.
Accordingly, the Seventh Circuit has rejected lawsuits against a state Attorney General
based only on general duties. Sherman v. Cmty. Consol. Sch. Dist. 21 of Wheeling Twp., 980
F.2d 437, 441 (7th Cir. 1992). And very recently a district court in Louisiana dismissed a
challenge to a traditional marriage definition that named only the Attorney General because the
Attorney General had no official connection to enforcement of the law. Robicheaux v. Caldwell,
No. 13-5090, 2013 WL 6198279, at *2 (E.D. La Nov. 27, 2013) (“The Attorney General’s
sweeping responsibility to enforce the laws of the State . . . lacks the Ex parte Young specificity
nexus between the Attorney General and the alleged unconstitutional provisions [barring and
precluding recognition of same-sex marriage] that is essential to defeat sovereign immunity.”).
Again, the Attorney General has no authority to enforce the challenged statutes and is not a
proper defendant under the Young exception to the Eleventh Amendment. The Attorney General
is therefore entitled to judgment as a matter of law.
II. Preliminary Injunctive Relief Is Inappropriate
Under Rule 65 of the Federal Rules of Civil Procedure, a request for preliminary
injunctive relief must specify precisely what relief is to be awarded against which defendant.
Here, Plaintiffs Quasney and Sandler seek preliminary relief that does the following:
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(1) enjoins Defendants and all those acting in concert from enforcing the Indiana
laws against recognition of Plaintiffs Niki Quasney and Amy Sandler’s legal
out-of-state marriage as applied to them; and
(2) should Plaintiff Niki Quasney pass away in Indiana, orders William C.
VanNess II, M.D., in his official capacity as the Commissioner of the Indiana
State Department Of Health, and all those acting in concert, to issue a death
certificate that records her marital status as “married” and that lists Plaintiff
Amy Sandler as the “surviving spouse;” said order shall require that
Defendant VanNess issue directives to local health departments, funeral
homes, physicians, coroners, medical examiners, and others who may assist
with the completion of said death certificate explaining their duties under the
order of this Court.
Quasney’s Prelim. Inj. Mem. at 32. All other plaintiffs seek preliminary relief that:
(1) enjoins Defendants from enforcing Indiana Code § 31-11-1-1, prohibiting a
person from marrying another person of the same sex or recognizing same-sex
marriages;
(2) enjoins Defendants from enforcing any and all other state statutes, regulations
or other laws which act as a barrier to or otherwise discourage same-sex
couples from marrying, including but not limited to Indiana Code § 31-11-11-
7 (prohibiting solemnization of a marriage by same-sex couples);
(3) requires the Defendant Bogan, Martin, Brown, Beaver, and all those acting in
concert to issue a marriage license to the adult Plaintiffs and all other same-
sex couples [] upon their application and satisfaction of all legal requirements
for a marriage in Indiana except for the requirement that they be of different
sexes, and requires the Defendant Clerks to register their solemnized marriage
as is presently required for all other marriages.
Pls.’ Prelim. Inj. Mem. at 28-29. For reasons largely unrelated to the merits of their claims,
Plaintiffs’ demands for preliminary relief are inappropriate under Rule 65. This memorandum
discusses those reasons in this section. Plaintiffs’ claims also must fail on the merits, and those
arguments are in Part III, though they apply to demands for preliminary and final relief alike.
A. In challenges to traditional marriage definitions, the Supreme Court has
ruled that injunctions are not appropriate prior to final appellate resolution
This case is one among many lawsuits around the country challenging traditional
definitions of marriage (i.e., state laws that define marriage as being between one man and one
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woman). Many, though not all, of these cases were either initiated or reached final judgment in
the wake of United States v. Windsor, 133 S. Ct. 2675 (2013). To date, in light of Supreme
Court guidance on the issue, in no case does a fully contested preliminary or final permanent
injunctive decree precluding enforcement of traditional marriage definitions remain in effect.
The thrust of these cases is hard to miss: The traditional definition of marriage has been around
a long time. Its validity is hotly contested, but the outcome of these legal disputes is uncertain,
such that the status quo should remain until the Supreme Court squarely addresses the issue.
1. On January 6, 2014, the Supreme Court of the United States stayed a permanent
injunction issued by the United States District Court for the District of Utah in Kitchen v.
Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013), pending final disposition of an appeal to the
Tenth Circuit. Herbert v. Kitchen, 134 S. Ct. 893 (Jan. 6, 2014). In that case, three same-sex
couples challenged Utah’s constitutional amendment and statutes upholding the traditional
definition of marriage. Kitchen, 961 F. Supp. 2d at 1187. The district court entered a permanent
injunction, now fully stayed, that required officials to issue marriage licenses to same-sex
couples and to recognize same-sex marriages validly performed in other States. Id. at 1215.
2. Federal courts across the country have fallen into line by staying injunctions
involving traditional marriage definitions, both with respect to licensure of same-sex marriages
within a State and recognition of same-sex marriages performed in other jurisdictions. See
Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1252, 1296 (N.D. Okla. 2014)
(licensure); Bostic v. Rainey, No. 2:13-cv-395, 2014 WL 561978, at *23 (E.D. Va. Feb. 13,
2014) (licensure and recognition); De Leon v. Perry, No. SA-13-CA-00982-OLG, 2014 WL
715741, at * 28 (W.D. Texas Feb. 26, 2014) (licensure and recognition); Bourke v. Beshear, No.
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3:13-CV-750-H, 2014 WL 556729, at * 14 (W.D. Ky. Mar. 19, 2014) (recognition); DeBoer v.
Snyder, No. 14-1341, Doc. 22-1 at 3 (6th Cir. Mar. 25, 2014) (licensure).
Most recently, in Henry v. Himes, No. 1:14-cv-00129-TSB, 2014 WL 1512541, at *1-*2
(S.D. Ohio Apr. 16, 2014), the District Court stayed its ruling pending an appeal to the Sixth
Circuit but, with agreement from the defendants, implemented its order requiring defendants to
issue birth certificates for the plaintiffs’ children listing both same-sex spouses as parents. The
court stayed its final injunction in the main because “[i]t is best that these momentous changes
occur upon full review, rather than risk premature implementation or confusing changes . . .
[t]hat do[] not serve anyone well.” Id. at *1 (quoting Bourke, 2014 WL 556729, at *14).1
The Supreme Court “sent a strong message” with its “unusual intervention” in Kitchen v.
Herbert that stayed a final, permanent injunction against enforcement of traditional marriage
definitions. Bourke, 2014 WL 556729, at *14. If a permanent injunction must be stayed in this
context, it follows that temporary or preliminary relief is inappropriate, particularly given the
expedited schedule the parties are following for resolution of the merits of this case. Wolf v.
Walker, No. 3:14-cv-00064-bbc, Doc. 53 at 3 (W.D. Wisc. Mar. 4, 2014), (“[i]f a preliminary
injunction must be stayed as soon as it is entered, it is not clear what purpose it serves.”).
B. Any legally cognizable injury to Plaintiffs is not irreparable, and a
preliminary injunction would not preserve the status quo
“Preliminary relief is properly sought only to avert irreparable harm to the moving party.”
Chicago United Indus., Ltd. v. City of Chicago, 445 F.3d 940, 944 (7th Cir. 2006). Plaintiffs
1 Similarly, the court in Tanco v. Haslam, No. 3:13-cv-01159, 2014 WL 1117069, at *5 (M.D. Tenn. Mar. 20, 2014)
denied a stay of injunction that broadly “bar[s] the defendants and those under their supervision from enforcing
[Tennessee’s anti-recognition statute and constitutional amendment] against the six named plaintiffs in this action.”
This injunction would appear ripe for issuance of a stay under Kitchen, but officials defending the Tennessee statute
have not sought a stay from the Sixth Circuit, which issued a stay in DeBoer v. Snyder.
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have not shown that they stand to suffer immediate irreparable harm absent a preliminary
injunction.
1. Plaintiff Quasney claims that, absent an injunction, she stands to suffer immediate
harm if she passes away before conclusion of the litigation and her death certificate lists her as
unmarried. As the declaration of Hilari A. Sautbine, a staff attorney for the Indiana State
Department of Health, makes clear, however, a certificate of death can be amended at the request
of any interested person. Sautbine Decl. ¶¶ 10-11. The statutes do not define “interested
person,” and the decision whether to honor a request for correction is up to the professional
judgment of the funeral director. Id. Any refusal to honor such a request is subject to legal
action in state court. Id. at ¶ 12. If the Court were later to determine on the merits that
Quasney’s out-of-state same-sex marriage is entitled to recognition in Indiana, her certificate of
death—which is an electronic record—could easily be corrected to reflect that fact.
Accordingly, there is no likely irreparable harm with respect to the accuracy of the certificate of
death itself.
Furthermore, “preliminary injunctions are intended to preserve the status quo” pending
litigation. Chicago United Indus., Ltd. v. City of Chicago, 445 F.3d 940, 944 (7th Cir. 2006)
(internal quotation marks omitted); Graham v. Med. Mut. of Ohio, 130 F.3d 293, 295 (7th Cir.
1997) (“[A] mandatory preliminary injunction, that is, an injunction requiring an affirmative act
[is] ordinarily cautiously viewed and sparingly issued.”). But an injunction requiring the
Commissioner to take a particular action concerning Quasney’s as-yet-unneeded death certificate
would compel affirmative action, not preserve the status quo.
2. The remaining plaintiff couples seek a preliminary injunction requiring the
defendant clerks to issue marriage licenses. Pls.’ Prelim. Inj. Mem. at 29. First, again, such
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relief would not preserve the status quo pending litigation, but would require affirmative acts that
would radically change administration of state marriage laws. This request goes well beyond
what Rule 65 authorizes, especially considering that Plaintiffs cite no imminent external event
that would prevent them from applying for, and receiving, marriage licenses once their claims
are fully adjudicated. And if these licenses were issued preliminarily and then solemnized, it is
hard to see how they could later be “taken back.” With marriage licenses, preliminary relief
would amount to final relief for these plaintiffs, and is therefore not authorized by Rule 65. See
Westinghouse Elec. Corp. v. Free Sewing Mach. Co., 256 F.2d 806, 808 (7th Cir. 1958)
(affirming a partial denial of a preliminary injunction because “to have granted all the plaintiff
asked would have decided this case upon the merits [and s]uch is not the function of a
preliminary injunction”); see also Diversified Mortgage Investors v. U.S. Life Title Ins. Co. of
New York, 544 F.2d 571, 575-76 (2d Cir. 1976) (holding that it “is not the proper function of [a
preliminary] injunction order” to “irrevocably alter[ the rights of all the parties and] permanently
deprive[ a party] of a [] defense which, under normal circumstances, would be a valid one”).
3. Plaintiff C.A.G. claims that the marriage law injures him “in both tangible and
intangible ways.” Pls.’ Prelim. Inj. Br. at 16 [Dkt. No. 36]. In this regard, however, Plaintiffs
point only to a vague description of a denial of “an economic safety net and other protections and
government benefits automatically given to children of married parents.” Id. They also cite to
Indiana law presuming parentage of children born to married couples during the marriage and to
legitimation of children born out of wedlock. Id. Plaintiffs, however, in no way establish that
C.A.G. could benefit from either any of these incidental effects of marriage. According to the
declarations of Plaintiffs Greene and Funkhouser, they are both C.A.G.’s legal parents. Greene
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Decl. ¶ 13; Funkhouser Decl. ¶ 14. Plaintiffs do not explain how issuing marriage licenses to
Greene and Funkhouser would benefit C.A.G. for purposes of recognition of his parentage.
4. All Plaintiffs assert that without a preliminary injunction “the State inflicts grave
dignitary harm when its law announces that the adult Plaintiffs’ relationships are not ‘deemed by
the State worthy of dignity in the community equal with all other marriages.’” Pls.’ Prelim. Inj.
Mem. at 26; Pls.’ Summ. J. Mem. at 25 (quoting Windsor, 133 S. Ct. at 2692). Plaintiffs further
argue that Indiana’s traditional definition of marriage “demeans them and humiliates their
children . . . making it even more difficult for the children to understand the integrity and
closeness of their own family . . . .” Pls.’ Prelim. Inj. Mem. at 27; Pls.’ Summ. J. Mem. at 25
(quoting Windsor, 133 S. Ct. at 2694) (internal quotation marks omitted).
Such harm, however, is insufficiently concrete and particularized even to justify Article
III cognizability, let alone a preliminary injunction. In Valley Forge Christian College v.
Americans United for Separation of Church & State, Inc., 454 U.S. 464, 485-86 (1982), the
Court held that “psychological consequences presumably produced by observation of conduct
with which one disagrees . . . is not an injury sufficient to confer standing under Art. III, even
though the disagreement is phrased in constitutional terms.” And the Seventh Circuit has
squarely held that mere offense is insufficient to create the controversy needed to confer Article
III standing. In Harris v. City of Zion, 927 F.2d 1401, 1405 (7th Cir. 1991), the court held that
“[t]he requirement that the plaintiff allege an ‘injury-in-fact,’ whether economic or non-
economic, excludes simple indignation as a basis for Article III standing. That the plaintiff may
be offended by the defendants’ conduct is not enough to confer standing.” Similarly, when
considering the constitutionality of a crucifixion display in Gonzales v. North Township of Lake
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County, Indiana, 4 F.3d 1412, 1416 (7th Cir. 1993), the court stated that “[o]ffense to moral . . .
sensitivities does not constitute an injury in fact and is insufficient to confer standing.”
Windsor does nothing to make these asserted harms cognizable under Article III. While
Windsor alluded to the offense or indignity of the plaintiffs in that case, it neither declared those
reactions to be sufficient for Article III standing nor made them the object of relief. Rather, the
relief was favorable tax treatment, not simply an abstract directive to no one in particular to
“recognize” the plaintiffs’ same-sex marriages. Indeed, if all Plaintiffs seek is to quash an
affront to their dignity or the humiliation of their children, there is no apparent reason for any
decree to be directed to any particular defendant, for it would do nothing to alter anyone’s
conduct. As the district court observed in Sevcik v. Sandoval, 911 F. Supp. 2d 996, 1018 (D.
Nev. 2012), “[a]ny stigma arising out of the State's refusal to recognize same-sex relationships as
“marriages” simply cannot be removed by judicial decree.” Accordingly, it is hard to understand
how such a preliminary injunction would, as an exercise of the judicial power, afford any relief.
What is more, the Supreme Court has held that the requirement under Rule 65(d) of the
Federal Rules of Civil Procedure that a “federal court [must] frame its [preliminary injunctions]
so that those who must obey them will know what the court intends to require and what it means
to forbid . . . is absolutely vital in a case where a federal court is asked to nullify a law duly
enacted by a sovereign State.” Gunn v. Univ. Comm. to End War in Viet Nam, 399 U.S. 383, 389
(1970). Plaintiffs must state with specificity not only who is to be bound, Alemite Mfg. Corp. v.
Staff, 42 F.2d 832, 832 (2d Cir. 1930) (“[N]o court can make a decree which will bind any one
but a party; . . . it cannot lawfully enjoin the world at large, [and i]f it assumes to do so, the
decree is pro tanto brutum fulmen, and the persons enjoined are free to ignore it.” (opinion of
Hand, J.)), but also how they are to be bound, Schmidt v. Lessard, 414 U.S. 473, 476 (1974) (per
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curiam) (“Since an injunctive order prohibits conduct under threat of judicial punishment, basic
fairness requires that those enjoined receive explicit notice of precisely what conduct is
outlawed.”). These requirements implicitly foreclose preliminary symbolic relief.
5. Plaintiffs also list a variety of incidental harms that may follow from non-
recognition of same-sex marriages in Indiana, but they neither support a claim that these harms
are inevitable, nor trace them to any defendant, nor establish that they will be avoided by a
preliminary injunction. For example, Quasney worries that a hospital may not let her family “be
together in an emergency or permit Amy to make medical decisions on [Niki’s] behalf[;] . . .
apply for insurance or other benefits, settle claims and access assets, transfer title of real and
personal property, and provide legal evidence of the face of a family member’s death.”
Quasney’s Prelim. Inj. Mem. at 5, 29. Additionally, she states that “Amy may also be denied
survivor benefits under Indiana law . . . [such as] a $25,000 allowance from Niki’s estate . . . and
[the ability] to elect to receive ‘one-half of the net personal and real estate of’ [Niki], regardless
of the disposition made in the will.” Id. at 30 (internal citations omitted).
The remaining Plaintiffs list similar incidental harms broadly denied to all same-sex
couples, including:
The ability to make caretaking decisions for one another in times of death and
serious illness, including the priority to make medical decisions for an
incapacitated spouse, the automatic right to make burial decisions, and other
decisions concerning disposition and handling of remains of deceased spouses.
The right to inheritance under the laws of intestacy and the right of a surviving
spouse to an elective share[.]
Other protections, benefits, rights, and responsibilities, including survivor benefits
for spouses of public safety officers killed in the line of duty, state retirement fund
survivor benefits for spouses, legal protections granted to spouses and their
children through mandatory waiting periods prior to marriage dissolution,
requirements of fair division of marital property, protection of the criminal code
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that makes it a crime to fail to support a needy spouse, and the right to file joint
state income tax returns.
Pls.’ Prelim. Inj. Mem. at 26; Pls.’ Summ. J. Mem. at 9-10. Plaintiffs further argue that even if
they were to marry in another jurisdiction and return to live in Indiana, “they and their children
still may be denied certain federal benefits or have challenges obtaining them[.]” Pls.’ Prelim.
Inj. Mem. at 26. Specifically, Plaintiffs allege they may be unable to obtain “Social Security
benefits, . . . spousal veterans benefits[,] . . . Family Medical Leave Act [benefits, and] . . .
spousal benefits under copyright statute[.]” Id. at 26-27.
None of the Plaintiffs, however, ever substantiate that they will, in fact, suffer these
harms, but speak in terms only of what may occur. One would think, for example, that Plaintiffs
could avert uncertainty about hospital visitation and medical decision making through a series of
advance directives. Hospitals must honor a patient’s directive concerning who may visit and
who may make medical decisions if the patient lacks capacity to make them. Ind. Code §§ 16-
36-1-3, -7 (Health Care Consent Act); In re Lawrance, 579 N.E.2d 32, 39 (Ind. 1991) (“Indiana’s
statutes reflect a commitment to patient self-determination[, and] the decision to allow the
transfer of authority [to make healthcare decisions] rests on the principle of the basic human
need of self-determination and individual autonomy.” (citation omitted)); 410 Ind. Admin. Code
16.2-3.1-8(b)(9) (subject to reasonable restrictions, a hospital “must provide immediate access to
any resident by . . . [anyone] visiting with the consent of the resident.”); see also 42 C.F.R. §
482.13(h)(3) (hospitals participating in Medicare and Medicaid programs cannot “restrict, limit,
or otherwise deny visitation privileges on the basis of . . . sexual orientation . . . ”).
One would also think that Plaintiffs could address concerns about post mortem property
distribution by executing will and trust documents that carry out their wishes, and even by way
of transferring property to each of their partners in advance of their passing. In fact, at least
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some of the Plaintiffs have undertaken such preventative measures. The Baskin-Fuller couple
has “set[] up trusts, advanced directives, and health-care powers of attorney in order to protect
[them]selves and [their] relationship . . . .” Fuller Decl. ¶ 9 [Doc. 36-2]. None of the other
Plaintiffs has explained why it is not possible for them to protect their rights in a similar fashion.
Nor do Plaintiffs explain how any of these incidental harms is traceable to any defendant.
None of the defendants can take official action that would permit hospital visitation or medical
decision making, secure Social Security benefits, permit intestate succession, authorize handling
of funeral arrangements, apply for insurance, settle claims or access assets, or transfer title of real
and personal property. Accordingly, no injunction on account of these incidental impacts of
marriage law is appropriate.2
Similarly, Plaintiffs do not demonstrate that a preliminary injunction would prevent any
of these incidental harms from occurring. A preliminary injunction governing a death certificate,
for example, would plainly have no impact on hospital visitation or medical decision making for
Quasney. And it is highly dubious to suppose that, being less than final, it would govern
settlement of Quasney’s legal affairs or Sandler’s insurance or social security claims. In any
event, none of the Plaintiffs have provided any showing that the injunctions they request would
have any such impact. Accordingly, these injunctions must be denied because the claimed relief
is far too speculative.
C. The public interest and balancing of equities weigh against preliminary relief
As the Supreme Court expressly declared in United States v. Windsor, 133 S. Ct. 2675,
2691 (2013), and as the Court’s stay of final relief in Kitchen implies, States have a compelling
2 With respect to Plaintiffs’ mention of the ability to file joint tax returns, not only have plaintiffs failed to link that
injury to any defendant, but in any event the Tax Injunction Act would preclude jurisdiction over a request for such
relief. See 28 U.S.C. § 1341 (“The district courts shall not enjoin, suspend or restrain the assessment, levy or
collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such
State.”).
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interest in defining marriage and administering their own marriage laws that outweighs claimed
violations of constitutional rights. Again, the stay in Kitchen (and subsequent stays in lower
federal courts) demonstrates this principle. See Korte v. Sebelius, 735 F.3d 654, 665 (7th Cir.
2013) (“If the moving party [shows irreparable harm and some likelihood of success on the
merits,] the court . . . also considers the public interest.”).
Here, the public interest in the continuity of Indiana’s marriage laws—i.e., the interest in
avoiding the potential for public confusion over a series of judicial injunctions that keep re-
setting the definition of marriage—works against preliminary relief. Preliminary injunctive
relief would disrupt public understanding of the meaning and purpose of marriage in Indiana,
prompt unreasonable expectations for the defendant clerks in this case and other clerks around
the State to issue unauthorized marriage licenses to all same-sex couples that demand them, raise
expectations that any number of Indiana laws pertaining to marriage are suddenly suspended or
modified, and generally create unnecessary confusion among the public. This would be
especially damaging with respect to public acts that cannot be undone, such as the issuance of
marriage licenses, even if it technically applies only to the plaintiffs in this case.
This is also a matter of balancing the equities, and in this regard, timing matters. For a
preliminary injunction to be appropriate, a Plaintiff’s irreparable harm must not be speculative.
See E. St. Louis Laborers’ Local 100 v. Bellon Wrecking & Salvage Co., 414 F.3d 700, 704 (7th
Cir. 2005). Nor, however, can it be an injury that a plaintiff has endured for a substantial period
without seeking relief. See Celebration Int’l, Inc. v. Chosun Int’l, Inc., 234 F. Supp. 2d 905, 920
(S.D. Ind. 2002) (Though not dispositive, “tardiness weighs against a plaintiff’s claim of
irreparable harm . . . .”). Here, the timing of Plaintiffs’ lawsuit weighs against their claims for
preliminary relief.
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1. Plaintiffs’ claims for specific relief (concerning the certificate of death and the
marriage licenses) are premature. Plaintiff Quasney’s request to prevent an inaccurate certificate
of death is premature, precisely because it is so highly contingent. Whether Quasney will pass
away during the course of this litigation is simply unknowable. And if she were to pass away
during the course of this litigation, either her estate or Sandler could at that point seek a TRO
(subject to the same defenses otherwise applicable now) concerning information to be included
on her certificate of death. Claims for preliminary relief in the form of marriage licenses are
premature because, once granted, they cannot unilaterally be undone. There is no procedure for
cancelling or taking back a marriage license.
2. Plaintiffs’ demands for a preliminary injunction designed to assuage incidental
harms as well as injuries to pride and dignity, even aside from lack of Article III cognizability,
come too late. Plaintiffs do not claim that the various indignities they claim to suffer are newly
inflicted. They all claim to be in long-term relationships lasting years, if not decades. Pls.’
Prelim. Inj. Mem. at 2-5; Quasney’s Prelim. Inj. Mem. at 3. Indiana law has never during any of
that time recognized same-sex marriages, yet no plaintiffs have sought judicial relief for their
alleged dignity harms until now. A plaintiff who suffers supposedly irreparable harm for a
substantial period before filing a lawsuit to redress it is not entitled to preliminary relief. Gianni
Cereda Fabrics, Inc. v. Bazaar Fabrics, Inc., 335 F. Supp. 278, 280 (S.D. N.Y. 1971).
Accordingly, the balancing of equities weighs against preliminary relief.
III. Plaintiffs’ Claims Fail on the Merits
The fundamental merits issue is whether States may confer the special status of
“marriage” on qualified opposite-sex couples without also conferring it on any other
relationships, including same-sex couples. Legitimate justifications for traditional marriage are
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long-established, even if sometimes forgotten or deemed old-fashioned. In short, a State may
rationally confer civil marriage on one man and one woman in order to encourage the couple to
stay together for the sake of any children that their sexual union may create. Traditional
marriage focuses on protecting children and creating optimal childrearing environments, not on
celebrating adult romantic relationships. The male-female relationship alone enables the married
persons—in the ideal—to beget children who have a biological relationship to both legal parents.
In this way, a State’s decision to ratify the sexual union between a man and a woman confirms a
deeply significant understanding of human relationships and encourages such unions as the
standard for the human family.
In contrast, Plaintiffs supply no alternative governmental rationale for bestowing special
civic status on same-sex couples. While same-sex couples may do an excellent job of raising
children, they cannot provide the family structure where those who raise a child combine both
legal responsibility for and a biological connection with that child. Instead, the central rationale
for same-sex marriage is social approval of the couple’s sexual relationship as such. But there is
no reason for government to take any interest in that sexual relationship—and certainly nothing
like the government’s interest in encouraging long-term care for the children produced by
heterosexual intercourse. And because any interest in same-sex couples bears no link to any
characteristic innately limited to them, it contains no limiting principle for excluding other
groupings of individuals. Ultimately, there is no legal argument for same-sex marriage, only an
argument against civil marriage as a special, limited status.
A. Plaintiffs lack standing to assert claims for disparate treatment of children based
on marital status of parents and for association, integrity, autonomy, and self-
definition, insofar as those claims relate to “legal recognition of their parent-
child relationships”
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In their complaint, Plaintiffs assert that Indiana’ marriage laws are unconstitutional owing
to what Plaintiffs describe as “Discrimination Based on Parental Status.” First Am. Compl. ¶
104. They say that Indiana law “impermissibly classifies children, including the child Plaintiffs,
on the bases of their parents’ sex, sexual orientation, and marital status[.]” Id. They also assert
that Indiana’s traditional marriage definition impinges constitutional rights to “family integrity
and association.” Id. at ¶ 81. Plaintiffs more specifically argue infringement of a right to secure
“legal recognition of their parent-child relationships through established legal mechanisms
available to married parents (e.g., the spousal presumption of parenthood, stepparent adoption
and other marital parentage protections) . . . .” Pls.’ Summ. J. Mem. at 18. To the extent these
claims are analytically distinguishable from the other equal protection and due process claims
asserted by the Plaintiffs, however, no Plaintiff has standing to raise them.
The declarations submitted by Plaintiffs Quasney and Sandler demonstrate that they are
the legal parents of Plaintiffs A.Q.-S. and M.Q.-S., and the declarations of Greene and
Funkhouser establish that they are the legal parents of Plaintiff C.A.G. Quasney Decl. ¶¶ 2, 23;
Sandler Decl. ¶¶ 3, 17; Greene Decl. ¶ 13; Funkhouser Decl. ¶ 14. This is important because the
only specific legal impact of Indiana’s marriage laws relating to a supposed “disparate treatment
of children of unmarried parents based on the status or conduct of their parents” and the
supposed right to “family integrity and association” have to do with the presumption of
parentage and the conferral of legitimacy occasioned by marriage. With respect to the parental
presumptions and legitimacy they discuss, A.Q.-S., M.Q.-S., C.A.G., and their parents would not
benefit by prevailing in this litigation. Their parent-child relationships are fully established,
according to the allegations of the First Amended Complaint and their respective declarations.
First Am. Compl. ¶¶ 25, 28; Quasney Decl. ¶¶ 2, 23; Sandler Decl. ¶¶ 3, 17; Greene Decl. ¶ 13;
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Funkhouser Decl. ¶ 14. They may have acquired those rights by means other than “established
legal mechanisms available to married parents,” but they do not allege that if they prevail in this
litigation Plaintiffs will undo the current legal underpinnings of their parental rights and then re-
establish those rights via some other “established legal mechanisms.”
Where plaintiffs cannot benefit from success on a particular legal claim, they do not have
standing to assert it. As the Supreme Court recently held in Davis v. Federal Election
Commission, 554 U.S. 724 (2008), “standing is not dispensed in gross. Rather, a plaintiff must
demonstrate standing for each claim he seeks to press and for each form of relief that is sought.”
Id. at 734 (internal quotation and citation omitted). And to have standing to bring a claim, a
plaintiff “must have an actual stake in the outcome” of the dispute. Family & Children’s Ctr.,
Inc. v. Sch. City of Mishawaka, 13 F.3d 1052, 1058 (7th Cir. 1994).
Plaintiffs vaguely assert that Indiana’s traditional definition of marriage denies them “an
economic safety net and other protections and government benefits automatically given to
children of married parents, causing these families to have less money to spend on child-related
expenses.” Pls.’ Summ. J. Mem. at 24. They cite only the declarations of Funkhouser and
Greene. The Funkhouser declaration, however, refers only to a general desire for “the same
benefits and protections” as children of married couples. Funkhouser Decl. ¶ 15. The Greene
declaration says only that he and Funkhouser “fear the future” for C.A.G. if one of them were to
pass away, that they “likely will not be able to pass on the assets [they] acquired together in the
same way that married couples can,” and that C.A.G. will most likely be penalized financially
because [they] are not legally married.” Greene Decl. ¶¶ 16-17.
Such vague hypotheticals do not establish concrete or particularized harm, traceability to
the defendants, or the likelihood that the Court could provide redress. It does not explain what
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assets could not be passed on, why they could not be passed on, and whether plaintiffs have
already taken action to ameliorate any potential problems. All of these are critical for standing,
because without providing such specifics Plaintiffs cannot establish that adjudication of this
claim will amount to anything more than an advisory opinion. See Laird v. Tatum, 408 U.S. 1,
14 (1972) (There must be “a claim of specific present objective harm or a threat of a specific
future harm; the federal courts established pursuant to Article III of the Constitution do not
render advisory opinions.”) (internal quotation marks omitted).
Finally on this point, Plaintiffs also assert “intangible” or “dignitary” injury, but again,
those are not cognizable Article III harms. See Part II.B., supra. In neither Windsor nor Brown
v. Board of Education of Topeka, 347 U.S. 483 (1954), which Plaintiffs cite as grounds for
making these claims, did any plaintiffs litigate claims based solely on a need to redress harm to
dignity. While both cases alluded to such harms as part of the rationales for their decisions, they
did not rely on them to justify standing. In Windsor, the plaintiffs were adults seeking specific
tax treatment, and the potential impact of DOMA on children was only relevant to the majority’s
reasoning on the merits. Windsor, 133 S. Ct. at 2682, 2695-96. In Brown, the plaintiffs were
injured by a law requiring segregated education that directly impacted each plaintiff, children
especially. While dignity harms factored into the analysis, they were not the basis for the claims
asserted or the object of the relief entered. Brown, 347 U.S. at 493 (The question presented is
“[d]oes segregation of children in public schools solely on the basis of race, even though the
physical facilities and other ‘tangible’ factors may be equal, deprive the children of the minority
group of equal educational opportunities?”).
Accordingly, the Court has no jurisdiction to consider the claim for an equal protection
violation based on a supposed classification of children according to parents’ marital status,
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action or conduct or for due process violation based on inability to establish parentage “through
established legal mechanisms available to married parents.”
B. There is no constitutional right to have one’s out-of-state same-sex marriage or
civil union recognized in Indiana
Quasney and Sandler claim a federal constitutional right under the Equal Protection and
Due Process Clauses to have their Massachusetts marriage recognized by Indiana courts under
Indiana law. Pls.’ Summ. J. Mem. at 12-13, 15-19, 22. The thrust of their argument seems to be
that Indiana must accord full faith and credit to the marriage laws of other States, but they do not
make any claims under the Full Faith and Credit Clause. Such a claim would be unavailing in
any event, as the Full Faith and Credit Clause requires recognition of judgments of other States
and does not extend to a State’s acts or statutes. Baker by Thomas v. Gen. Motors Corp., 522
U.S. 222, 232 (1998) (“The Full Faith and Credit Clause does not compel a state to substitute the
statutes of other states for its own statutes dealing with a subject matter concerning which it is
competent to legislate.” (quotation and citation omitted)). And even with respect to judgments,
“there are some limitations upon the extent to which a state will be required by the full faith and
credit clause to enforce even the judgment of another state, in contravention of its own statutes or
policy.” Alaska Packers Ass’n v. Industrial Accident Comm’n, 294 U.S. 532, 546 (1935).
If the Full Faith and Credit Clause cannot compel one state to recognize marriages from
another, the Fourteenth Amendment has no greater role to play. Plaintiffs cite Loving v.
Virginia, 388 U.S. 1 (1967), for the proposition that same-sex couples with valid out-of-state
marriages have a substantive federal right to have their marriages recognized in Indiana. Pls.’
Summ. J. Mem. at 15. Loving, however, turned not on a fundamental right of interstate marriage
recognition, but on a combination of the fundamental right to marry (which includes interracial
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couples but not same-sex couples, see Part III.B.2.a., infra) and the Fourteenth Amendment’s
protections against racial discrimination.
Ultimately, Loving itself demonstrates that a claim for interstate marriage recognition is
not a free-standing right, but only a derivative claim that turns entirely on the validity of a state’s
underlying marriage laws. There, Virginia could not itself exclude interracial couples from
marriage, so it also could not refuse to recognize out-of-state interracial marriages. Loving, 388
U.S. at 4, 11. Here, whether Indiana can refuse to recognize out-of-state same-sex marriages
turns entirely on whether Indiana may itself adhere to the traditional definition of marriage. The
staggering implications of Plaintiffs’ broader claim for interstate marriage recognition starkly
illustrate its foundational flaws.
1. There is no due process right to interstate marriage recognition,
particularly where an out-of-state marriage contravenes public policy
For starters, there is no federal due process right to have a license issued in one State—
whether for professional, weapons, driving, or marriage purposes—treated as valid by
government and courts in another. See Hawkins v. Moss, 503 F.2d 1171, 1176 (4th Cir. 1974)
(“[L]icenses to practice law granted by . . . one state, have no extraterritorial effect or value and
can vest no right in the holder to practice law in another state.”); see also Hemphill v. Orloff, 277
U.S. 537, 544, 549, 551 (1928) (holding, against a due process challenge, that a corporation
permitted to conduct business in Massachusetts may not do so in Michigan without obtaining a
certificate of authority from the Michigan Secretary of State). Otherwise, States would have to
recognize and treat as valid one another’s law licenses, medical licenses, concealed-carry gun
permits, driver’s licenses, and notary public commissions, just to name a few.
Next, even if an out-of-state marriage is viewed as a purely private contract—which it is
not—state and federal constitutions permit rejection of out-of-state contracts that contravene
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public policy. See Goodwin v. George Fischer Foundry Sys., Inc., 769 F.2d 708, 712-13 (11th
Cir. 1985) (“A state may refuse to enforce a contract, valid in the state where made, if the
contract conflicts with the public policy of that state.”).
Plaintiffs’ constitutional theory in contravention of these baseline principles would
effectively require Indiana to conform its marriage policy to the varying marriage policies
enacted in other States. Rather than fostering the States’ freedom to experiment with different
approaches to difficult social questions, Plaintiffs’ theory would empower one laboratory to
commandeer the others, essentially nationalizing the marriage policy of the most inventive State,
including those that might one day permit plural marriages.
Marriage-recognition principles are rooted in the common law of comity, not due process
or any other substantive state or federal constitutional doctrine. The common law choice-of-law
starting point is usually the lex loci rule, which says a marriage valid in the state of licensure is
valid in other states as well. But that is not, and never has been, the end of the matter. The
Restatement (Second) of Conflict of Laws § 283(2) (1971) states that even if a marriage
“satisfies the requirements of the state where the marriage was contracted,” that marriage will
not “be recognized as valid” if “it violates the strong public policy of another state which had the
most significant relationship to the spouses and the marriage at the time of the marriage.” This
“public policy” exception comports with the “Nation’s history, legal traditions, and practices,”
and indeed dates back before the Fourteenth Amendment. See Joseph Story, Commentaries on
the Conflict of Laws § 113a, at 168 (Little Brown, & Co. 6th ed. 1865) (noting that exceptions to
out-of-state marriage recognition included “those positively prohibited by the public law of a
country from motives of policy”).
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Such public policy exceptions exist across the country. See, e.g., Cook v. Cook, 104 P.3d
857, 860 (Ariz. Ct. App. 2005) (upholding but not applying Arizona’s prohibition on marriages
between first cousins); Hesington v. Hesington’s Estate, 640 S.W.2d 824, 826 (Mo. Ct. App.
1982) (denying recognition of a common-law marriage consummated on a temporary trip to
another State); Laikola v. Engineered Concrete, 277 N.W.2d 653, 656 (Minn. 1979) (same);
Catalano v. Catalano, 170 A.2d 726, 731-32 (Conn. 1961) (uncle-niece marriage lawfully
contracted in Italy would not be recognized in Connecticut, the domiciliary State of the
husband); Cunningham v. Cunningham, 206 N.Y. 341, 349 (1912) (holding that a minor female
who validly married an adult male in New Jersey could annul her marriage in New York as
“repugnant to . . . public policy and legislation”). In none of these cases was there any
suggestion whatever that federal due process rights might guarantee interstate marriage
recognition.
Indiana is entirely free, therefore, to treat as void marriages from other states that
contravene state public policy. Statutorily, the state not only refuses to recognize out-of-state
same-sex marriages, but also any out-of-state marriage entered into for the purpose of evading
Indiana’s marriage laws—in terms equally applicable to both same-sex and opposite-sex
couples. Indiana Code Section 31-11-8-6 provides that:
[a] marriage is void if the parties to the marriage:
(1) are residents of Indiana;
(2) had their marriage solemnized in another state with the intent
to:
(A) evade IC 31-11-4-4 [requiring a marriage license] or
IC 31-11-4-11 [precluding issuance of a license if the
applicant is mentally incompetent or under the
influence]; and
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(B) subsequently return to Indiana and reside in Indiana;
and
(3) without having established residence in another state in good
faith, return to Indiana and reside in Indiana after the marriage
is solemnized.
Furthermore, as a matter of common law, in the only Indiana Supreme Court decision
that defendants are aware of that addresses an out-of-jurisdiction marriage that could not have
been entered into in Indiana, the Court refused to recognize the marriage on public policy
grounds. Sclamberg v. Sclamberg, 41 N.E.2d 801, 802-03 (Ind. 1942) (treating as void a
marriage between uncle and niece). The parties in that case conceded voidness, but conceding
what the law obviously required does not undermine the legal principle the Court employed.
The Indiana Supreme Court has otherwise made it clear that the lex loci principle applies
only against a backdrop where all agree as to what constitutes a valid marriage. More than one
hundred forty years ago, the court asked, “[W]hat . . . then constitutes the thing called a
marriage? What is it in the eye of the jus gentium [law of nations]? It is the union of one man and
one woman, ‘so long as they both shall live,’ to the exclusion of all others, by an obligation
which, during that time, the parties can not, of their own volition and act, dissolve, but which can
be dissolved only by authority of the State.” Roche v. Washington, 19 Ind. 53, 57 (1862).
Continuing, the court said, “[n]othing short of this is a marriage. And nothing short of this is
meant, when it is said, that marriages, valid where made, will be upheld in other States.” Id. This
passage confirms the implicit understanding underlying the lex loci principle—that it works only
if all States basically agree on what constitutes a valid marriage. When other States recognize
same-sex marriages, but Indiana does not, that prerequisite is not met.
Plaintiffs cite one decision from the Indiana Court of Appeals that has given retrospective
effect to a marriage from another jurisdiction that could not have been undertaken in Indiana,
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Mason v. Mason, 775 N.E.2d 706, 709 (Ind. Ct. App. 2002) (recognizing, for purposes of divorce
action and division of property, marriage of first cousins who married under age 65). But one
case from the Indiana Court of Appeals issued in 2002 that essentially seeks to do equity in a
particular circumstance does not conclusively establish Indiana common law governing the
prospective effect of out-of-state marriages that contravene Indiana public policy.
In all events, this is not about weighing one fairly recent Indiana intermediate court
decision—Mason—against earlier decisions of its hierarchical superior, the Indiana Supreme
Court. It is instead about whether Indiana’s statutory refusal to recognize out-of-state same-sex
marriages, as a means of carrying out state public policy, is consistent with the American
constitutional tradition. There can hardly be any debate that it is, as ample case law from around
the country, only a small fraction of which is cited above, demonstrates. Indiana does not suffer
some special disability in this regard simply because the out-of-state recognition issue has not
been litigated enough to provide a robust body of Indiana decisions. The Constitution does not
mean one thing in Oklahoma and another in Indiana when it comes to out-of-state recognition of
marriages that contravene state public policy.
2. Indiana’s refusal to recognize the Quasney-Sandler marriage does not
contravene the Equal Protection Clause
Quasney and Sandler also assert that Indiana violates their equal protection rights because
out-of-state opposite-sex marriages are generally afforded “recognition” but out-of-state same-
sex marriages are not. Pls.’ Summ. J. Mem. at 19, 22. First, however, it is not clear Quasney
and Sandler have standing to assert this claim. As described in the Statement of Material Facts
Not in Dispute, supra, Quasney and Sandler were married in Massachusetts, but were not at the
time residents of Massachusetts. They were residents of Indiana. Knowing that they could not
be married in Indiana, they decided to get married elsewhere, which runs afoul of Indiana Code
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Section 31-11-8-6, quoted above. This statute is neutral with respect to whether the marriage is
same-sex or opposite-sex, so to the extent they married in another State to evade Indiana’s
marriage laws, Quasney and Sandler are being treated exactly the same as would be a similarly
situated opposite-sex couple. Steve Sanders, The Constitutional Right to (Keep Your) Same-Sex
Marriage, 110 Mich. L. Rev. 1421, 1433-34 (2012) (“[E]vasive marriages are essentially about
the right to marry in the first instance.” Therefore, “[w]hen an Indiana couple flies to Boston for
the weekend to get married, they . . . have no reasonable expectation from the outset that Indiana
will honor their marriage.”). Plaintiffs do not purport to challenge Section 31-11-8-6 in any
event.
Regardless, for the reasons described in Part III.C., infra, the proper level of scrutiny here
is rational basis, and to the extent out-of-state opposite-sex marriages are generally treated as
valid under Indiana law but same-sex marriages are not, that differential treatment is fully
justifiable. Generally speaking, opposite-sex couples whose marriages are recognized here could
get married in Indiana anyway, but same-sex couples could not. While Indiana could refuse
recognition to all opposite-sex marriages from other States, doing so would be pointless given
that out-of-state opposite-sex couples who move here could easily obtain Indiana licenses and
have their marriages solemnized.
Furthermore, laws pertaining to opposite-sex marriage do not differ significantly from
one State to the next, and the population of opposite-sex couples (1) who wish to marry; (2) who
would not be authorized to marry in Indiana; (3) who live in (or find) a State authorizing them to
marry, and (4) who return or relocate to Indiana, is self-evidently quite small. Society no longer
sees many first cousins, minor teenagers, or mentally disabled individuals seeking marriage.
Accordingly, even if Indiana’s general recognition of out-of-state opposite-sex marriages results
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in occasional retrospective recognition of a marriage that contravenes Indiana’s marriage
restrictions (such as in Mason), such a possibility does not present an existential threat to
vindication of Indiana marriage policy.
In contrast, the population of same-sex couples married in other States who will return or
relocate to Indiana is presumably quite large, and accepting those marriages would permit
wholesale evasion of Indiana’s traditional marriage definition and fatally undercut vindication of
state marriage policy. Same-sex couples living here could easily be married in Illinois (or one of
the sixteen other states and District of Columbia that provide same-sex marriage), return to
Indiana and demand prospective recognition, thereby rendering Indiana’s own definition of
marriage meaningless. So in a very visible and undeniable way, recognizing out-of-state same-
sex marriages would be tantamount to providing for same-sex marriage.
What is more, the decision by some States to recognize same-sex marriages marks a
significant departure not only from Indiana policy but also from the fundamental understanding
of the purpose of marriage embodied by our State’s laws. For Indiana, marriage is about
encouraging responsible procreation so as to ameliorate the consequences of unplanned
pregnancies. See Morrison v. Sadler, 821 N.E.2d 15, 30 (Ind. Ct. App. 2005). For States
recognizing same-sex marriages, the purpose of marriage is obviously something else—
something that cannot be reconciled with Indiana’s marriage philosophy. Notably, the same is
not true with respect to other variations in state marriage laws, which may reflect marginal
differences about the proper age of majority or the proper distance of consanguinity, but which
do not call into question the fundamental purpose of the entire enterprise. Indiana has a
legitimate interest in maintaining the integrity of its fundamental rationale for civil marriage
rather than letting it be redefined by other States.
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***
Fundamentally, the constitutional validity of Indiana’s decision not to recognize out-of-
state same-sex marriages turns on the constitutional validity of its traditional marriage definition.
If Indiana can constitutionally adhere to that definition and thereby refuse to provide for same-
sex marriages, it can also refuse to recognize same-sex marriages from other States. For Indiana
has a legitimate—nay, compelling—interest in ensuring that its democratic process—not that of
Massachusetts or any other State—would continue to set marriage policy within the State.
C. Indiana’s traditional marriage definition is constitutional
1. Baker v. Nelson still controls, and the core meaning of Windsor is to
preserve state prerogatives over marriage
Baker v. Nelson, 409 U.S. 180 (1972), was a ruling on the merits that upheld Minnesota’s
traditional definition of marriage. Baker was not overruled by United States v. Windsor, 133
S.Ct. 2675 (2013), or any other Supreme Court case and therefore precludes these challenges.
Yet Plaintiffs rely heavily on United States v. Windsor, 133 S. Ct. 2675 (2013), and claim that it
stands for the proposition that “marriage is not inherently defined by the sex or sexual orientation
of the couples” and “[i]t is thus unconstitutional to ‘deprive some couples . . . but not other
couples, of [the] rights and responsibilities [of marriage].’” Pls.’ Summ. J. Mem. at 14 (quoting
Windsor, 133 S. Ct. at 2694). Windsor, however, is plain and narrow and does not require States
to recognize same-sex marriages from other States. Section 3 of DOMA, which had “the
purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought
to protect in personhood and dignity[,]” violated the Fifth Amendment principally because it was
an “unusual deviation from the tradition of recognizing and accepting state definitions of
marriage . . . .” Id. at 2693, 2696 (emphases added); see also id. at 2697 (Roberts, C.J.,
dissenting) (observing that “[t]he dominant theme of the majority opinion is that the Federal
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Government’s intrusion into an area central to state domestic relations law applicable to its
residents and citizens is sufficiently ‘unusual’ to set off alarm bells.” (internal quotation marks
omitted)). It was critical to the Court’s analysis that New York had previously granted marital
interests that federal DOMA then threatened. Id. at 2689.
In contrast, traditional state marriage definitions are, as Windsor amply affirms, the
“usual” course of business. Id. at 2691. So “usual” are they that the Supreme Court in 1972
dismissed a challenge to Minnesota’s traditional marriage law for want of a substantial federal
question. Baker v. Nelson, 409 U.S. 810 (1972). Windsor’s careful distinction between
“unusual” federal marriage law and “usual” state marriage law does not imply the invalidity of
the latter. What is more, the majority opinion expressly rejects any theory that its scope can be
expanded to include laws that preserve the traditional marriage definition. In no uncertain terms,
the majority forcefully states that “[t]his opinion and its holding are confined to [New York’s]
lawful marriages.” Id. at 2696. It is therefore improper to extrapolate from “this opinion” any
rule that affects any other state’s marriage laws.
The post-Windsor cases that have struck down States’ traditional marriage laws not only
ignore this plain injunction, but also give short shrift to the principles of federalism underlying
the majority opinion and fundamentally misread Windsor in at least three ways: (1) that Windsor
supports the decoupling of marriage and procreation and diminishes the “fundamental” right to
marriage to “a loving, rewarding, monogamous relationship with a partner to whom they are
committed for life[;]” (2) that Windsor deems the relevant question to be whether same-sex
marriages harm opposite-sex marriages and/or children, and not whether same-sex marriages
further a State’s interest in marriages; and (3) that Windsor’s denunciation of dignitary harm
caused by Section 3 to children of New York’s state-provided same-sex marriages can be used
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against States that do not provide for same-sex marriage. See, e.g., Bostic v. Rainey, No. 2:13-
cv-395, 2014 WL 561978, at *17-*20, *22 (E.D. Va. Feb. 13, 2014).
First, there is no doubt that the Constitution gives its blessing to New York to recognize
out-of-jurisdiction same-sex marriages. Windsor, 133 S. Ct. at 2692 (explaining that New
York’s “actions were without doubt a proper exercise of its sovereign authority within our
federal system, [which] allow[s] the formation of consensus respecting the way the members of a
discrete community treat each other in their daily contact and constant interaction with each
other”). It is a considerable leap from this conclusion, however, to read Windsor, which struck
down Section 3 of DOMA for discriminating against “basic personal relations the State has
found it proper to acknowledge and protect[,]” id. at 2694 (emphasis added), to establish a
singular vision of a fundamental right to marriage that must be respected by all States.
Lower courts therefore err when they judicially define marriage incompatibly with how a
State has chosen to do so. The Bostic court, for example, labels marriage as “the right to make a
public commitment to form an exclusive relationship and create a family with a partner with
whom the person shares an intimate and sustaining emotional bond.” Bostic, 2014 WL 561978
at *12 (quoting Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1202-03 (D. Utah 2013)). Under
Windsor, the purpose of marriage should instead come from the State, particularly in light of the
fact that, as the Court in Windsor observed, “marriage between a man and a woman no doubt had
been thought of by most people as essential to the very definition of that term and to its role and
function throughout the history of civilization.” Windsor, 133 S. Ct. at 2689.
Second, Windsor does not imply that anything more stringent than rational basis review
applies. Id. at 2696 (ruling that “no legitimate purpose”—a hallmark of rational basis review—
justified Section 3). Under that level of scrutiny, the claim that “recognizing same-sex marriage
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or unions will not harm the institution of opposite-sex marriage is not dispositive of the
constitutional issue[, but, instead, the] key question . . . is whether the recognition of same-sex
marriage would promote all of the same state interests that opposite-sex marriage does, including
the interest in marital procreation.” Morrison v. Sadler, 821 N.E.2d 15, 23 (Ind. Ct. App. 2005);
see Johnson v. Robinson, 415 U.S. 361, 383 (1974). It is a simple biological truth that same-sex
couples cannot further a State’s interest in responsible procreation because they cannot procreate
unintentionally. See Part II.B.3.a., infra. The State is not obligated under rational basis review
to circumscribe marriage so tightly as to also exclude those who are not willing or unable to
procreate. See Part II.B.3, infra.
Lastly, Windsor does not establish that harm to the dignity of children of same-sex
couples equates to a constitutional violation notwithstanding a State’s legitimate interests in
preserving the traditional definition of marriage. See Cnty. of Sacramento v. Lewis, 523 U.S.
833, 845-46 (1998). The Court carefully observed in Windsor that New York had already
granted the “recognition and protection” of marriage to same-sex couples, and it was the removal
of that status for federal purposes, in essence “creating two contradictory marriage regimes
within the same State[,]” that “places same-sex couples in an unstable position of being in a
second-tier marriage [and] humiliates tens of thousands of children now being raised by [them].”
Windsor, 133 S. Ct. at 2694-95. With traditional marriage laws, any harm to dignity is not
similarly the result of withdrawing rights once granted, which was the focus of Windsor.
2. No fundamental rights or suspect classes are implicated
a. There is no fundamental right to same-sex marriage, a concept
having no roots in the Nation’s history and traditions
Supreme Court precedent does not support the notion that there is a fundamental
constitutional right to same-sex marriage, or that any fundamental right to marry includes same-
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sex couples. Fundamental rights are those that are “objectively, deeply rooted in this Nation’s
history and tradition . . . and implicit in the concept of ordered liberty, such that neither liberty
nor justice would exist if they were sacrificed.” Washington v. Glucksberg, 521 U.S. 702, 720-
21 (1997) (internal quotations and citations omitted). A “careful description of the asserted
fundamental liberty interest” is required, and courts must “exercise the utmost care whenever
[they] are asked to break new ground in this field . . . .” Id. at 720, 721 (internal quotations and
citations omitted).
“Marriage” is a foundational and ancient social institution whose meaning, until recently,
was universally understood as limited to the union of a man and a woman. Windsor, 133 S. Ct.
at 2689. Plaintiffs cannot assert a fundamental right to “marriage” because same-sex couples
plainly fall outside the scope of the right itself, unlike the opposite-sex couples. That is why, a
mere five years after Loving v. Virginia, 388 U.S. 1 (1967), the Supreme Court rejected a
constitutional same-sex marriage claim as failing even to present a “substantial federal question.”
Baker v. Nelson, 409 U.S. 810, 810 (1972).
Furthermore, no separate fundamental right to “same-sex marriage” is “deeply rooted in
this Nation’s history and tradition . . . and implicit in the concept of ordered liberty.”
Glucksberg, 521 U.S. at 720-21. Indeed, the “universally understood and celebrated status of
marriage,” First Am. Compl. ¶ 40, has never included same-sex couples and no judicial decree
can change that. Barely a decade ago, in 2003, Massachusetts became the first State to extend
the definition of marriage to same-sex couples. It did so through a 4-3 court decision, without a
majority opinion, by interpreting its state constitution. Goodridge v. Dep’t of Pub. Health, 798
N.E.2d 941, 969 (Mass. 2003). Other state supreme courts followed suit, see Kerrigan v.
Comm’r of Pub. Health, 957 A.2d 407, 482 (Conn. 2008), Varnum v. Brien, 763 N.W.2d 862,
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906 (Iowa 2009), but only twelve States and the District of Columbia have extended marriage to
same-sex unions legislatively, the first not occurring until 2009. See Conn. Gen. Stat. §§ 46b-20,
-20-a.
Same-sex marriage cannot be transformed into a fundamental right by repackaging
marriage as the freedom “to select the partner of one’s choice[.]” Pls.’ Prelim. Inj. Mem. at 8.
Divining a “right to make a public commitment to form an exclusive relationship and create a
family with a partner with whom the person shares an intimate and sustaining emotional bond,”
Bostic, 2014 WL 561978, at *12, plainly fails to meet the “careful description of the asserted
fundamental liberty interest” rule. Glucksberg, 521 U.S. at 720-21. Declaring that same-sex
marriage claimants seek “nothing more than to exercise a right that is enjoyed by the vast
majority of Virginia’s adult citizens,” Bostic, 2014 WL 561978, at *12, leaves out the only part
of the asserted right that matters: that the claimants seek this right as same-sex couples.
The asserted interest, properly defined, is the right to state-sanctioned marriage for a
same-sex couple—not the right to “marriage” redefined by fiat. Same-sex marriage is not a
fundamental right—as the Supreme Court itself indicated in Windsor, 133 S. Ct. at 2689.
b. The traditional definition of marriage does not impinge on
rights of personal autonomy, intimate association, self-
definition, etc.
Plaintiffs claim that Indiana’s traditional marriage definition infringes not only a right to
marry or have an out-of-state same-sex marriage recognized in Indiana, but also “a host of other
related fundamental liberty interests.” Pls.’ Summ. J. Mem. at 18. They variously describe these
“interests” as “autonomy,” “personal decisions relating to . . . family relationships,” the ability
“to participate fully in society as married couples,” “intimate association,” “self-definition,”
“family integrity and association,” and “direct[ing] the upbringing and education” of their
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children. Id. Plaintiffs, however, fail to specify how lack of government endorsement of their
adult relationships interferes with individual autonomy, self-definition, private decision making,
private relationships, or parental rights. They point to no private conduct that Indiana bans, no
educational decisions they may not make, no government disruptions of their lives, and no
interference with their ability to associate with their loved ones, including their children.
The only cases Plaintiffs cite have to do with federal government interference with state-
conferred status or rights (Windsor) or state interference with private conduct (Lawrence v.
Texas, 539 U.S. 558 (2003); Griswold v. Connecticut, 381 U.S. 479 (1965); Pierce v. Soc’y of
Sisters, 268 U.S. 510 (1925)). Here, by contrast, Plaintiffs demand positive rights, i.e.,
affirmative state government recognition and acceptance of their relationships, announced
through a public act and a public document. This is the antithesis of the claims for privacy or
government restraint that characterized Windsor, Lawrence, Griswold, and Pierce. The claims
thus do not even meet the terms of the general constitutional rights Plaintiffs seem to invoke.
The idea of liberty and privacy under the Constitution, as informed by the Declaration of
Independence, rests on the proposition that each individual has freedom and dignity apart from
the government; i.e., that government exists to protect the freedom and dignity of the individual
“endowed by their Creator,” not to create that freedom and dignity in the first instance. See
Slaughter-House Cases, 83 U.S. 36, 105 (1872) (“[T]he Creator had endowed all men with
certain inalienable rights . . . [and] to secure these rights[,] governments are instituted among
men.”) (internal quotation marks omitted). Plaintiffs either forget or reject this starting point for
the American system of government and seek to turn a presumption of liberty from government
interference into a presumption of governmental approval of every individual’s way of life. No
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Supreme Court case—including Windsor—even remotely suggests the existence of any such
constitutional right.
In any event, the Supreme Court has made it clear that constitutional rights of “intimate
association” inhere only in “personal bond[s]” that have also “played a critical role in the culture
and traditions of the Nation.” Roberts v. United States Jaycees, 468 U.S. 609, 618-19 (1984).
Aside from their arguments about the right of marriage itself, Plaintiffs make no attempt to
identify and substantiate a right that both conforms to this definition and that Indiana’s
traditional marriage definition cognizably interferes with. If the Constitution does not protect a
right to same-sex marriage, Plaintiffs cannot prompt the emanation of its equivalent from broad,
largely undifferentiated appeals to rights of “liberty,” “privacy,” and “association.” See Sevcik,
911 F. Supp. 2d at 1014 (“[T]he right to privacy is not implicated here, as Plaintiffs desire not to
be left alone, but, on the contrary, desire to obtain public recognition of their relationships.”).
c. Limiting marriage to the union of a man and a woman
does not implicate a suspect class
The traditional definition of marriage existed at the very origin of the institution and
predates by millennia the current political controversy over same-sex marriage. It neither
targets, nor disparately impacts, either sex; nor does it classify based on sexual orientation or
parentage. Accordingly, there is no basis for subjecting traditional marriage definitions to
heightened scrutiny.
i. Traditional marriage does not discriminate based on sex
The traditional definition of marriage draws no distinction based on sex. As the court
observed in Sevcik, 911 F. Supp. 2d at 1005, laws protecting traditional marriage “are not
directed toward persons of any particular gender, nor do they affect people of any particular
gender disproportionately such that a gender-based animus can reasonably be perceived.” See
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also, e.g., Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1252, 1286 (N.D. Okla. 2014)
(Oklahoma’s Marriage Protection Amendment “does not draw any distinctions between same-
sex male couples and same-sex female couples, does not place any disproportionate burdens on
men and women, and does not draw upon stereotypes applicable only to male or female
couples.”); Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 1098-99 (D. Haw. 2012) (“agree[ing]
with the vast majority of courts considering the issue that an opposite-sex definition of marriage
does not constitute gender discrimination”) (listing cases).
Accordingly, there is no parallel to Loving v. Virginia, 388 U.S. 1 (1967), in this regard
because race and sex are not constitutionally fungible concepts. See Hernandez v. Robles, 805
N.Y.S.2d 354, 371 (N.Y. App. Div. 2005) (Catterson, J., concurring) (“To elevate the issue of
same sex unions to that of discrimination on the basis of race does little service to the legacy of
the civil rights movement, and ignores the history of race relations in this country.”). The
racially discriminatory classification in Loving was “designed to maintain White Supremacy” to
the clear favor of one racial class. See Loving, 388 U.S. at 11. A Loving analogy involving sex
discrimination would, for example, ban only lesbians from marrying women, but not gay men
from marrying other men. That is plainly not the case here, where men and women are equally
affected by Indiana’s traditional marriage definition.
ii. Traditional marriage does not discriminate based on
sexual orientation
Furthermore, traditional marriage laws in no way target homosexuals as such. With
traditional marriage, “the distinction is not by its own terms drawn according to sexual
orientation. Homosexual persons may marry . . . but like heterosexual persons, they may not
marry members of the same sex.” Sevcik, 911 F. Supp. 2d at 1004. While traditional marriage
laws impact heterosexuals and homosexuals differently, they do not create classifications based
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on sexuality, particularly considering the benign history of traditional marriage laws generally.
See, e.g., Washington v. Davis, 426 U.S. 229, 242 (1976) (holding that disparate impact on a
suspect class is insufficient to justify strict scrutiny absent evidence of discriminatory purpose).
And when a facially neutral statute is challenged on equal protection grounds, the plaintiff must
show that “a state legislatur[e] ... selected or reaffirmed a particular course of action at least in
part because of, not merely in spite of, its adverse effects [on] an identifiable group.” Pers.
Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979) (emphasis added) (internal quotation marks
omitted).3
Deducing any such discriminatory intent (unaccompanied by any actual statutory
classification) is both unsupported and highly anachronistic. Plaintiffs misleadingly claim that
“the Indiana General Assembly passed the marriage ban in 1997.” Pls.’ Summ. J. Mem. at 31.
While the precise statute on the books was passed in 1997, Indiana has never authorized or
recognized same-sex marriages. Before 1986, state statute provided that “[a] male who has
reached his seventeenth birthday may marry a female who has reached her seventeenth birthday .
. . .” Ind. Code § 31-1-1-1. From 1986 to 1997, it said that “[o]nly a female may marry a male.
Only a male may marry a female.” Ind. Code § 31-7-1-2. In 1997, the legislature re-enacted this
exact wording and added “[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).
3 M.L.B. v. S.L.J., 519 U.S. 102 (1996), cited by Plaintiffs, is not to the contrary. There, the Court applied
heightened scrutiny to a law requiring pre-payment of costs to appeal a termination of parental rights on the grounds
that it affected fundamental parental and access-to-justice rights. Id. at 107, 118-21. It provides no grounds for
inferring discrimination where no unequal treatment or fundamental right is implicated. See Tucker v. Branker, 142
F.3d 1294, 1301 (D.C. Cir. 1998) (upholding filing fee under the Prison Litigation Reform Act using rational basis,
rejecting M.L.B. discrimination theory). Regardless, Indiana’s traditional marriage laws permit all Hoosiers to
marry, as the experiences of Plaintiffs Bonnie Everly, Linda Judkins, and Dawn Carver demonstrate. See Everly
Decl. ¶ 6; Judkins Decl. ¶ 5; Carver Decl. ¶ 6. Thus, Indiana’s marriage laws do not negatively impact all
homosexuals, some of whom marry members of the opposite sex and some of whom do not wish to marry at all, and
they do not negatively affect only homosexuals, but also those interested in other non-traditional marriages. If
marriage law must be scrutinized for impact on everyone’s ability to marry based on their sexual preferences, such a
rule would presumably set the stage for claims for plural marriages, underage marriages, and marriages within
prohibited lines of consanguinity.
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Plaintiffs assert, with no actual evidence, that Indiana Code Section 31-11-1-1 was passed
in 1997 with “animus-driven motive.” There is no legislative history or other evidence
supporting such calumny. And as Plaintiffs’ own secondary source on the subject makes clear,
the rationale for the 1997 legislation was far more likely related to preserving the State’s ability
to define marriage following the Hawaii Supreme Court’s 1993 decision calling traditional
marriage law into question in Baehr v. Lewin, 852 P.2d 44 (Haw. 1993). See The History of
Indiana Law 80 (Bodenhamer and Shepard, eds.) (2006)
Besides, the validity of Indiana’s traditional marriage definition must turn on whether
such laws are generally permissible, not on local motivations. And there is no plausible
argument that the traditional definition of marriage was invented as a way to discriminate against
homosexuals. Indeed, in Lawrence, the Court examined only the past fifty years for the history
of laws directed at homosexuals because “there is no longstanding history in this country of laws
directed at homosexual conduct as a distinct matter.” Lawrence, 539 U.S. at 568. Implicit in this
statement is an acknowledgement that traditional marriage is not “law[] directed at homosexual
conduct as a distinct matter.”
On this score, there is again no appropriate comparison with Loving. Unlike traditional
marriage laws, antimiscegenation laws contravened common law and marriage tradition in
Western society. The entire phenomenon of banning interracial marriages originated in the
American colonies: “[T]here was no ban on miscegenation at common law or by statute in
England at the time of the establishment of the American Colonies.” Harvey M. Applebaum,
Miscegenation Statutes: A Constitutional and Social Problem, 53 Geo. L.J. 49, 49-50 (1964).
Loving, in short, invalidated efforts to thwart the traditional parameters of marriage (which took
no account of race) based on racial animus. It involved relationships that were plainly within the
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historical understanding and purposes of marriage. In contrast, same-sex relationships were
never thought to be marriages—or to further the purposes of marriage—anywhere at any time,
until recently (in some jurisdictions). Accordingly, there is no basis for inferring that group
animus underlies traditional marriage.
Regardless, the Supreme Court has never held that homosexuality constitutes a suspect
class, and the law in this circuit, as well as most others, is that homosexual persons do not
constitute a suspect class. See Schroeder v. Hamilton Sch. Dist., 282 F.3d 946, 953-54 (7th Cir.
2002) (“[H]omosexuals are not entitled to any heightened protection under the Constitution.”);
see also Cook v. Gates, 528 F.3d 42, 61 (1st Cir. 2008); Veney v. Wyche, 293 F.3d 726, 731-32
(4th Cir. 2002); Baker v. Wade, 769 F.2d 289, 292 (5th Cir. 1985) (en banc); Equal. Found. of
Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289, 294 (6th Cir. 1997); Citizens for
Equal Prot. v. Bruning, 455 F.3d 859, 866-67 (8th Cir. 2006); Price-Cornelison v. Brooks, 524
F.3d 1103, 1113-14 & n.9 (10th Cir. 2008); Lofton v. Sec’y of the Dep’t of Children & Family
Servs., 358 F.3d 804, 818 (11th Cir. 2004); Steffan v. Perry, 41 F.3d 677, 684 n.3 (D.C. Cir.
1994) (en banc); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989); see also
Romer v. Evans, 517 U.S. 620, 631-35 (1996) (applying rational basis scrutiny to classification
based on sexual orientation). But see SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471,
481 (9th Cir. 2014) (applying heightened scrutiny to juror challenges based on sexual
orientation; subject to a sua sponte en banc call).
Neither Windsor, nor Romer, nor Lawrence, supports heightened scrutiny for legislation
governing marriage. Romer expressly applied rational basis scrutiny, while Lawrence and
Windsor implied the same. Romer, 517 U.S. at 631-32; Lawrence, 539 U.S. at 578; Windsor,
133 S. Ct. at 2696. In Windsor the Court invalidated Section 3 of DOMA as an “unusual
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deviation from the usual tradition of recognizing and accepting state definitions of marriage[,]”
133 S. Ct. at 2693 (emphasis added), which required analyzing whether DOMA was motivated
by improper animus. It ruled that “no legitimate purpose”—a hallmark of rational basis
review—justified the law. Id. at 2696. There is nothing about a State’s centuries-old traditional
definition of marriage that either targets sexual orientation or constitutes an “unusual deviation
from tradition.”
Furthermore, Plaintiffs make no claim that sexual orientation—the supposed basis for
discrimination—is an “immutable” characteristic, as the Cleburne decision deems significant for
suspect class status. See City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 441-42
(1985). Cleburne also cautioned that suspect-class status is inappropriate “where individuals in
the group affected by a law have distinguishing characteristics relevant to interests the State has
the authority to implement.” Id. at 441-42. The distinguishing characteristic with respect to
same-sex couples is their inability to procreate (as a couple). As explained in more detail in Part
III.B.3.a., the general capacity of opposite-sex couples to procreate through sexual activity—
even unintentionally—gives rise to State interests in marriage. This distinction erodes any claim
that homosexuals constitute a suspect class vis-à-vis traditional marriage laws.
Finally, suspect class status is reserved for groups that are “politically powerless in the
sense that they have no ability to attract the attention of the lawmakers.” Cleburne, 473 U.S. at
445. Plaintiffs cannot credibly claim that homosexuals as a class are unable “to attract the
attention of lawmakers.” Id. Just this winter Indiana’s lawmakers, having passed once already a
resolution to enshrine the traditional definition of marriage in the Indiana Constitution, and
nearing a vote to put the measure to statewide referendum in November 2014, effectively started
the process over and killed the measure for this year. Tony Cook & Barb Berggoetz, Same-Sex
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Marriage Ban Won’t be on November Ballot, The Indianapolis Star (Feb. 14, 2014), available at
http://www.indystar.com/story/news/politics/2014/02/13/hjr-3-last-minute-maneuver-could-
spare-2nd-sentence-/5455299/. This is far from the only political victory advocates for
homosexual rights have scored in recent years; it is only the most dramatic close to home. See
Morgan Little, Gay Marriage Movement Wins Significant Victories in 2013, LA Times (Dec. 9,
2013), available at http://www.latimes.com/nation/nationnow/la-pn-gay-marriage-movement-
gains-2013-20131206,0,1888807.story#axzz2zdVzLoIA (summarizing legislative and judicial
victories of 2013 and stating that “the gay rights movement as a whole is only becoming more
popular nationwide, leading many to speculate that it’s the fastest moving civil rights movement
in U.S. history.”); Monica Davey, In Diluting Measure to Ban Gay Marriage, Indiana Shows a
Shift, N.Y. Times, Feb. 14, 2014, available at http://www.nytimes.com/2014/02/18/us/
politics/in-diluting-measure-to-ban-gay-marriage-indiana-shows-a-shift.html?_r=0 (stating that
“Indiana offers a look at a different side of the nation’s shifting landscape—a glimpse at a
growing struggle for Republican politicians over how to satisfy a conservative base that now
finds itself at odds with some business leaders and a changing electorate”).
National success persuading voters and lawmakers to provide for same-sex marriage—
the very issue over which plaintiffs claim protected status—confirms the sort of political clout
that prevents recognition of homosexuals as a suspect class. Cf. Frank Bruni, The New Gay
Orthodoxy, N.Y. Times, Apr. 5, 2014, available at http://www.nytimes.com/2014/04/06/opinion/
sunday/bruni-the-new-gay-orthodoxy.html (claiming that “the debate is essentially over, in the
sense that the trajectory is immutable and the conclusion foregone[:] The legalization of same-
sex marriage from north to south and coast to coast is merely a matter of time, probably not
much of it at that”).
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iii. Traditional marriage does not discriminate against
children
In their complaint, Plaintiffs assert that heightened scrutiny should apply owing to what
plaintiffs describe as “Discrimination Based on Parental Status.” First Am. Compl. ¶ 104. They
say that Indiana law “impermissibly classifies children, including the child Plaintiffs, on the
bases of their parents’ sex, sexual orientation, and marital status.” Id. For the reasons provided
in Part III.A., supra, no Plaintiff has standing to bring this claim. Even aside from the lack of any
injury to plaintiffs arising from this supposed discrimination, this claim is hard to understand.
The statutes Plaintiffs challenge—Indiana Code Sections 31-11-1-1 and 31-11-4-2—do not
classify children in any way.
Plaintiffs point to the vague, incidental impact of marriage laws on the “economic safety
net and other protections and government benefits automatically given to children of married
parents,” Pls.’ Prelim. Inj. Mem. at 16, but do not provide sufficient detail to substantiate a claim
of unequal treatment. And the rule from Brock v. State, 85 Ind. 397 (1882), that “children born
outside marriage will be legitimized by subsequent marriage of parents,” has no apparent current
significance. Indeed, a series of United States Supreme Court decisions, beginning with Stanley
v. Illinois, 405 U.S. 645 (1972), recognized that unmarried fathers, linked by both biology and
involvement in a child’s life, have both rights and responsibilities recognized under the law.
Since Stanley, the law has moved from a definition of “fatherhood” or “parentage” based on
marriage to a definition based on biology. See, Indiana Code §§ 31-14-6-1 (“…the court shall
order all of the parties to a paternity action to undergo blood or genetic testing”), 31-14-10-1
(“upon the finding that man is the child’s biological father…”), 31-9-2-88 (parent “means a
biological or an adoptive parent”).
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The legitimizing effect of marriage in Brock had only to do with the father’s
susceptibility to “prosecution for maintenance of a bastard child,” a cause of action that no
longer exists. Nowadays, an action for child support lies against a parent regardless of marriage.
See Ind. Code §§ 31-16-2 et seq., 31-14-11 et seq. See also In re Paternity of S.R.I., 602 N.E.2d
1014, 1016 (Ind. 1992). The Brock case also alludes to the legitimized child’s status as an heir to
the father, but under current law a child is an heir of all parents regardless whether they are
married. Ind. Code §§ 29-1-2-7, -8. In any event, there is no presumption of parentage when the
mother marries more than 300 days after a child is born. See Ind. Code § 31-14-7-1.
Plaintiffs also cite the presumption of parentage that arises when children are born during
the marriage, but in this regard their complaint is not with the marriage definition as such but
with the statutes governing parental rights and responsibilities, which they do not challenge
(probably because their parental rights are secure). In any event, cases concerning rights of
illegitimate children have to do with preventing children from becoming the means for punishing
parents. See, e.g., Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 175 (1972) (“Obviously, no
child is responsible for his birth and penalizing the illegitimate child is an ineffectual—as well as
an unjust-way of deterring the parent.”). They do not support the notions that States have
minimal interests in regulating the determination of legitimacy or that laws affecting paths to
legitimacy implicate suspect classes. State laws bearing on allocation of parental rights and
responsibilities balance a web of sometimes competing policy interests, including the needs to
identify biological parents, ensure financial support, provide stability and identity, and address
public health issues. In re Paternity of S.R.I., 602 N.E.2d at 1016. Given this matrix of issues
that States must address, the Supreme Court has expressed solicitude both for drawing
reasonable inferences about parentage and dependency based on a child’s circumstances, and for
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addressing parental rights and obligations based on concerns about “proof of paternity.” See
Mathews v. Lucas, 427 U.S. 495, 515-16 (1976); Gomez v. Perez, 409 U.S. 535, 538 (1973).
Ultimately, Plaintiffs say that Indiana’s traditional definition of marriage is
unconstitutional because it “prevent[s] children of same-sex couples ever from having married
parents based on the sex and sexual orientation of their parents.” Pls.’ Prelim. Inj. Mem. at 16-
17. They thereby simply restate their more straightforward (but no more meritorious) theory that
Indiana’s traditional marriage definition discriminates on the basis of sex or sexual orientation.
Accordingly, as a separate basis for heightened scrutiny, “discrimination based on parental
status” must fail.
3. Traditional marriage satisfies constitutional review
Because no fundamental rights or suspect classes are implicated, the proper test under the
federal due process and equal protection clauses is rational basis review. Courts must examine
the issue from the State’s perspective, not the challenger’s perspective.
In particular, this means that the State may justify limits on government benefits and
burdens by reference to whether including additional groups would accomplish the government’s
underlying objectives. Johnson v. Robinson, 415 U.S. 361, 383 (1974) (“When . . . the inclusion
of one group promotes a legitimate governmental purpose, and the addition of other groups
would not, we cannot say that the statute’s classification of beneficiaries and nonbeneficiaries is
invidiously discriminatory.”). This framework accords with the longstanding principle that
“[t]he Constitution does not require things which are different in fact or opinion to be treated in
law as though they were the same,” Tigner v. Texas, 310 U.S. 141, 147 (1940), and, therefore,
“where a group possesses distinguishing characteristics relevant to interests the State has the
authority to implement, a State’s decision to act on the basis of those differences does not give
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rise to a constitutional violation.” Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 366-67
(2001) (internal quotations and citation omitted). See also Nordlinger v. Hahn, 505 U.S. 1, 10
(1992) (“The Equal Protection Clause does not forbid classifications. It simply keeps
governmental decisionmakers from treating differently persons who are in all relevant respects
alike.”).
Accordingly, the proper constitutional question has nothing to do with justifications for
“excluding” access to marriage and its benefits—an inquiry that inherently presupposes the
existence of a right to such “access” and thereby amounts to a rejection of rational-basis review.
Rather, “the relevant question is whether an opposite-sex definition of marriage furthers
legitimate interests that would not be furthered, or furthered to the same degree, by allowing
same-sex couples to marry.” Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 1107 (D. Haw.
2012); Andersen v. King Cnty., 138 P.3d 963, 984 (Wash. 2006) (en banc); Morrison v. Sadler,
821 N.E.2d 15, 23 (Ind. Ct. App. 2005); Standhardt v. Superior Court ex rel. Cnty. of Maricopa,
77 P.3d 451, 463 (Ariz. Ct. App. 2003).
The State has no greater burden to justify its decision not to license or recognize same-
sex marriages than it has to justify refusing benefits to any group. Again, the motivations behind
any particular perpetuation of the status quo (evidence of which does not exist in any event) are
irrelevant. Cf. Wis. Educ. Ass’n Council v. Walker, 705 F.3d 640, 653-54 (7th Cir. 2013)
(explaining that “under rational basis review, [courts] cannot search for the legislature’s motive
[because a]ll that matters is whether the statute, as written, furthers a legitimate government
objective”). Windsor does not permit inquiry into motivations because there is no departure here
from the usual course. See Part III.C.1., supra. It need only articulate reasons to confer benefits
on opposite-sex couples that do not apply to same-sex couples. The exclusive capacity and
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tendency of heterosexual intercourse to produce children, and the State’s need to ensure that
those children are cared for, provide those reasons.
a. States recognize opposite-sex marriages to encourage responsible
procreation, and this rationale does not apply to same-sex couples
Civil marriage recognition exists for important reasons having nothing to do with same-
sex couples. It arises from the need to protect the only procreative sexual relationship that exists
and to make it more likely that unintended children, among the weakest members of society, will
be cared for. See Morrison, 821 N.E.2d at 15, 29 (marriage exists “to encourage responsible
procreation by opposite-sex couples”); id. at 25 (“The institution of marriage not only
encourages opposite-sex couples to form a relatively stable environment for the ‘natural’
procreation of children in the first place, but it also encourages them to stay together and raise a
child or children together if there is a ‘change in plans.’”). This analysis is dominant in our legal
system and should continue to carry the day.4
Traditional marriage protects a norm where sexual activity that can beget children should
occur in a long-term, cohabitive relationship. See, e.g., Hernandez v. Robles, 855 N.E.2d 1, 7
(N.Y. 2006) (“The Legislature could rationally believe that it is better, other things being equal,
for children to grow up with both a mother and a father.”). It provides the opportunity for
children born within it to have a biological relationship to those having original legal
responsibility for their well-being, and accordingly is the institution that provides the greatest
4 See Citizens for Equal Protection v. Bruning, 455 F.3d 859, 867 (8th Cir. 2006); Lofton v. Sec’y of the Dep’t of
Children and Family Servs., 358 F.3d 804, 818-19 (11th Cir. 2004); Sevcik v. Sandoval, 911 F. Supp. 2d 996, 1015-
16 (D. Nev. 2012); Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 1112-13 (D. Haw. 2012); Smelt v. County of
Orange, 374 F. Supp. 2d 861, 880 (C.D. Cal. 2005), aff’d in part, vacated in part, 477 F.3d 673 (9th Cir. 2006);
Wilson v. Ake, 354 F. Supp. 2d 1298, 1309 (M.D. Fla. 2005); In re Kandu, 315 B.R. 123, 147-48 (Bankr. W.D.
Wash. 2004); Adams v. Howerton, 486 F. Supp. 1119, 1124 (C.D. Cal. 1980), aff’d 673 F.2d 1036 (9th Cir. 1982);
In re Marriage of J.B. & H.B., 326 S.W.3d 654, 677-78 (Tex. App. 2010); Conaway v. Deane, 932 A.2d 571, 619-
21, 630-31 (Md. 2007); Hernandez v. Robles, 855 N.E.2d 1, 7 (N.Y. 2006); Andersen v. King County, 138 P.3d 963,
982-83 (Wash. 2006) (en banc); Standhardt v. Superior Court, 77 P.3d 451, 463-65 (Ariz. Ct. App. 2003); Dean v.
District of Columbia, 653 A.2d 307, 337 (D.C. 1995); Singer v. Hara, 522 P.2d 1187, 1195 (Wash. Ct. App. 1974);
Baker v. Nelson, 191 N.W.2d 185, 186 (Minn. 1971).
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likelihood that both biological parents will nurture and raise the children they beget. States have
a strong interest in supporting and encouraging this norm.
Unlike opposite-sex couples, the sexual activity of same-sex couples implies no
unintentional pregnancies. Whether through surrogacy or reproductive technology, same-sex
couples can become biological parents only by deliberately choosing to do so, requiring a serious
investment of time, attention, and resources. Id. at 24. Consequently, same-sex couples do not
present the same potential for unintended children, and the State does not necessarily have the
same need to provide such parents with the incentives of marriage. Id. at 25; see also In re
Marriage of J.B. & H.B., 326 S.W.3d 654, 677 (Tex. Ct. App. 2010) (“Because only relationships
between opposite-sex couples can naturally produce children, it is reasonable for the state to
afford unique legal recognition to that particular social unit in the form of opposite-sex
marriage.”).
The fact that non-procreating opposite-sex couples may marry does not undermine
marriage as the optimal procreative context. Cf. Entry on Pls.’ Mot. for TRO at 7-8 (finding the
State’s “responsible procreation” justification for traditional marriage “problematic” because “the
State of Indiana generally recognizes the marriages of individuals who cannot procreate”).
Opposite-sex couples without children who are married model the optimal, socially expected
behavior for other opposite-sex couples whose sexual intercourse may well produce children.
See Morrison, 821 N.E.2d at 27 (“There was a rational basis for the legislature to draw the line
between opposite-sex couples, who as a generic group are biologically capable of reproducing,
and same-sex couples, who are not. This is true, regardless of whether there are some opposite-
sex couples that wish to marry but one or both partners are physically incapable of
reproducing.”); see also Singer v. Hara, 522 P.2d 1187, 1195 (Wash. Ct. App. 1974) (confirming
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marriage “as a protected legal institution primarily because of societal values associated with the
propagation of the human race[]” “even though married couples are not required to become
parents and even though some couples are incapable of becoming parents and even though not
all couples who produce children are married”).
Moreover, inquiring of every applicant for a marriage license whether they can or intend
to procreate would impose serious, constitutionally questionable intrusions on individual privacy.
The state is not required to go to such extremes simply to prove that the purpose of marriage is to
promote procreation and child rearing in the traditional family context. It suffices to observe that
only members of the opposite sex have even a chance at procreating, so it is fair to limit marriage
to opposite-sex unions as an initial matter, regardless whether there are further regulations of
marriage.
The state may prefer childrearing by biological parents, “whom our society . . . [has]
always presumed to be the preferred and primary custodians of their minor children.” Reno v.
Flores, 507 U.S. 292, 310 (1993). But that does not mean it must foreclose all other parenting
scenarios by outlawing adoptions or otherwise preventing parents from raising children to whom
they are not biologically related. The State’s interest in ensuring that children are properly cared
for may take many forms, the fundamental one being traditional marriage. And the mere ability
of same-sex couples to become parents does not put such couples on the same footing as
opposite-sex couples, whose general ability to procreate, especially unintentionally, legitimately
gives rise to state policies encouraging the legal union of such sexual partners. Morrison, 821
N.E.2d at 25 (“[T]he legislative classification of extending marriage benefits to opposite-sex
couples but not same-sex couples is reasonably related to a clearly identifiable, inherent
characteristic that distinguishes the two classes: the ability or inability to procreate by ‘natural’
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means.”). Parental rights are an important aspect of traditional marriage, but it does not follow
that marriage rights go wherever parental rights lead. The purpose of traditional marriage is not
to encourage just any two people who could be good parents to assume parental responsibility
for children. It is instead to encourage the two biological parents to care for their children in
tandem. Neither same-sex couples nor any other inherently non-procreative grouping of
individuals fits that bill.
In this regard, the presumption of parentage that Plaintiffs seek makes sense only with
respect to opposite-sex couples. Both state and federal law presume a biological relationship
where a child is born to married parents. 42 U.S.C. § 666(a)(5)(G); see also, e.g., Ind. Code §§
31-14-7 et seq. This presumption is justified insofar as marriage carries with it a tradition and
expectation of sexual monogamy and fidelity—in a context where monogamy and fidelity can, in
general, produce children. While children may occasionally result from extramarital liaisons or
donor-enabled assisted reproductive technology, the vast majority of children born within
marriage are biologically related to their mother’s husband. Traditional marriage is a reliable
indicator of the biological relationship between parent and child. See Nguyen v. I.N.S., 533 U.S.
53, 73 (2001) (upholding naturalization rules that presume a child’s biological relationship to
married parents but not to unmarried parents). The presumption of a biological relationship
where a child is born to married parents furthers the government’s important interest in
protecting the integrity of the family unit by “excluding inquiries into the child’s paternity that
would be destructive of family integrity and privacy.” Michael H. v. Gerald D., 491 U.S. 110,
120 (1989) (upholding a California statute creating a presumption that the child born to a married
woman living with her husband is a child of the marriage).
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In response to Plaintiff’s argument that traditional marriage laws burden children of
same-sex couples because there is no presumption of parentage in such cases (Pls.’ Summ. J.
Mem. at 24-25), it is important to bear in mind that the presumption of parentage exists to protect
the marriage. If the State may provide for traditional marriage (without similarly recognizing
other relationships) as a way of promoting optimal childrearing by biological parents, it may take
steps to protect that union from post-birth parentage claims by outsiders and to prevent likely
biological parents from disclaiming children without evidence. Traditional marriage and the
presumption of parentage are mutually reinforcing concepts. Marriage exists to encourage
responsible procreation, and the presumption of parentage both imposes automatic responsibility
on the married couple and protects them from parentage claims by outsiders. Plaintiffs seek to
turn the system from one that understandably uses a presumption of legitimacy to protect a
traditional marriage into one that uses a redefined marriage to presume legitimacy.
Critically, however, the presumption of parentage works only if it is facially plausible to
all the world that the married couple could in fact be the child’s biological parents. The law need
not provide that same presumption where a biological relationship to both members of the couple
is facially implausible. In this way, traditional marriage, and the uniquely suitable parentage
expectations that accompany it, facilitates family privacy in a way that same-sex marriage
cannot. Children of same-sex couples are necessarily unrelated biologically to at least one of
their parents. In every case where a same-sex couple has a child, a third person’s parental rights
and responsibilities must be dealt with, either before or after the child’s birth. Requiring officials
to list both members of a same-sex couple as parents on a birth certificate without a prior
showing of release or termination of a biological parent’s rights carries risks of unwarranted
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exclusion of a biological parent—including as a source of support for the child that the law
would otherwise impose—on a scale not true for opposite-sex couples.
b. Many courts have rejected the theory that traditional marriage
is about homosexual animus
Plaintiffs posit that traditional marriage is about harming homosexuals and promoting
gender stereotypes. Pls.’ Prelim. Inj. Mem. at 12, 15-16. They complain about the “stigma” that
States create when they recognize opposite-sex marriages but not same-sex marriages. Id. at 23-
24. But as Justice O’Connor wrote in her concurrence in Lawrence, legitimate state interests,
such as “preserving the traditional institution of marriage,” “exist to promote the institution of
marriage beyond mere moral disapproval of an excluded group.” Lawrence v. Texas, 539 U.S.
558, 585 (2003) (O’Connor, J., concurring).
Traditional marriage is not about sending “messages,” Pls.’ Prelim. Inj. Mem. at 4,
concerning homosexuality or sexual roles. It is about biology, about regulating sexual
relationships that create children that must be cared for. No amount of modern thinking about
male and female roles can change these facts of life. Accordingly, many state and federal courts
have expressly rejected the theory that restricting marriage to opposite-sex couples evinces
unconstitutional animus toward homosexuals as a group. The plurality in Hernandez, 855 N.E.2d
at 8, observed that “the traditional definition of marriage is not merely a by-product of historical
injustice. Its history is of a different kind.” As those judges explained, “[t]he idea that same-sex
marriage is even possible is a relatively new one. Until a few decades ago, it was an accepted
truth for almost everyone who ever lived, in any society in which marriage existed, that there
could be marriages only between participants of different sex. A court should not lightly
conclude that everyone who held this belief was irrational, ignorant or bigoted.” Id. See also
Standhardt, 77 P.3d at 465 (“Arizona’s prohibition of same-sex marriages furthers a proper
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legislative end and was not enacted simply to make same-sex couples unequal to everyone
else.”); In re Marriage of J.B. & H.B., 326 S.W.3d at 680 (rejecting argument that Texas laws
limiting marriage and divorce to opposite-sex couples “are explicable only by class-based
animus”). Indeed, all courts upholding traditional marriage definitions at least tacitly reject the
theory that homosexual animus is at work. See Part III.C.2.c, supra.
4. No other limiting principle for marriage rights is apparent
In its Temporary Restraining Order, the Court commented that the State’s responsible
procreation rationale for civil marriage “cannot be the entire rationale underlying the traditional
marriage[, and, a]dditionally, this philosophy is problematic in that the state of Indiana generally
recognizes marriages of individuals who cannot procreate.” Entry on Pls.’ Mot. for TRO at 7.
With respect, however, it remains the case that the vast majority of courts to address the issue
have been persuaded that the purpose of marriage is exactly that. Only since the Supreme
Court’s decision in Windsor have courts regularly begun to question that premise, yet Windsor
neither addressed this theory nor altered history. Even more important, neither Plaintiffs nor
judicial decisions invalidating traditional marriage definitions offer meaningful alternative
rationales or definitions. For example, the Bostic court declared that any “public commitment to
form an exclusive relationship and create a family with a partner with whom the person shares an
intimate and sustaining emotional bond” is entitled to marriage recognition. Bostic, 2014 WL
561978, at *12. This proposal for redefinition, however, in no way explains why government
has any interest in recognizing marriage or in regulating sexual relationships. The district court
in Bostic spoke of “an intimate and sustaining emotional bond,” but never said why that matters
to the State.
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Such an omission is glaring and significant. If the desire for social recognition and
validation of self-defined “intimate” relationships are the bases for civil marriage, no adult
relationships can be excluded a priori from making claims upon the government for recognition.
A central argument for recognizing same-sex marriages arises from a fashionable
insistence that the “modern family” is not what it used to be. Indeed, there seems to be no end to
the variety of de facto family permutations that can arise. By virtue of statutory amendment and
judicial fiat, some states bestow parental rights and responsibilities even on entire groups of “co-
parents.” In recent years, Delaware and the District of Columbia have passed laws that
recognize third “de facto” parents who have parental rights and responsibilities. D.C. Code §§
16-831.01 et seq.; 13 Del. Code § 8-201. Courts in several other states have also recognized
three parents. See In re Parentage of L.B., 122 P.3d 161, 176-77 (Wash. 2005) (en banc)
(recognizing third “de facto” parent); C.E.W. v. D.E.W., 845 A.2d 1146 (Me. 2004) (same); V.C. v.
M.J.B., 748 A.2d 539 (N.J. 2000) (recognizing third “psychological” parent); LaChappelle v.
Mitten, 607 N.W.2d 151 (Minn. Ct. App. 2000) (recognizing third-parent rights); see also In re
M.C., 195 Cal. App. 4th 197, 214, 223 (2011) (observing that “M.C. does have three presumed
parents, a situation the Supreme Court has acknowledged may exist,” but remanding for
reconciliation of competing parentage claims).5
But none of these social changes—whether one views them as good, bad, or
inconsequential—justifies marriage for same-sex couples. Surely no one argues that the liberty
of adults to engage freely in consensual sex means States must also celebrate (or even
5 Still more States’ courts have conferred joint parental rights on unmarried same-sex couples in circumstances that
would imply the availability of third-parent rights. See Raftopol v. Ramey, 12 A.3d 783, 799 (Conn. 2011)
(recognizing paternal rights in both biological father and gay partner, parties to gestational agreement with maternal
surrogate); K.M. v. E.G., 37 Cal. 4th 130, 142-44 (2005) (recognizing maternal rights in both egg-donor mother and
birth mother); T.M.H. v. D.M.T., 79 So.3d 787, 803 (Fla. Dist. Ct. App. 2011) (holding it constitutionally mandated
that both egg-donor mother and birth mother have parental rights); see also Melanie B. Jacobs, Why Just Two?
Disaggregating Traditional Parental Rights and Responsibilities to Recognize Multiple Parents, 9 J.L. & Fam. Stud.
309 (2007).
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acknowledge) each individual’s sexuality. Nor, then, does the government’s interest in the
sexuality of its citizens suddenly spring forth at the origination of particular romantic or
cohabitational relationships as such. There has to be something more to justify government
involvement. See Willystine Goodsell, A History of the Family as a Social and Educational
Institution 7 (The Macmillan Company 1915) (“It seems clear enough that the sexual instinct of
itself could not have brought about permanent relationships between male and female.”).
For qualified opposite-sex couples, the “something more” is the natural capacity of their
relationship to produce children unintentionally. This natural capacity gives rise to the state’s
interest in encouraging responsible procreation, i.e., where the sexual partners live in a long-
term, committed relationship for the sake of any children they may produce, even
unintentionally. See id. at 7-8 (“The source of marriage . . . must probably be looked for in the
utter helplessness of the newborn offspring . . . .”). The ability of same-sex couples to raise
children together is not the same thing. The primary rationale for traditional marriage is
responsible procreation, not responsible parenting more generally. Hence, what is missing is
society’s interest in encouraging couples to consider and plan for the children that inevitably
result from impulsive decisions to act on sexual desires. The sexual activity of same-sex couples
implies no consequences similar to that of opposite-sex couples.
It is no response for same-sex couples to say that the State also has an interest in
encouraging those who acquire parental rights without procreating (together) to maintain long-
term, committed relationships for the sake of their children. Such an interest is not the same as
the interest that justifies marriage as a special status for sexual partners as such. Traditional
marriage reflects the ideal of family life, recognizing the love between a mother and a father and
the ability of this relationship to bear children. The same is true for opposite-sex couples that do
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not procreate because they model the optimal ordering of family life. Responsible parenting is
not a theory supporting marriage for same-sex couples because it cannot answer two critical
questions: Why two people? Why a sexual relationship?
In other words, if marriage rights must follow parental rights, and if States cannot restrict
joint parental rights to opposite-sex couples as an optimal setting for childrearing, there would be
no basis for precluding joint parentage—and, hence, marriage—by any social grouping,
regardless of the existence of a sexual relationship. Sisters, brothers, platonic friends, groups of
three or more—all would be on equal footing for purposes of the right to parent jointly and, thus,
the right to marry.6 Consequently, responsible parenting is not a justification for same-sex-
couple marriage, as distinguished from recognition of any other human relationships. It is instead
a rationale for eliminating marriage as government recognition of a limited set of relationships.
Once the natural limits that inhere in the relationship between a man and a woman can no longer
sustain the definition of marriage, the conclusion that follows is that any grouping of adults
would have an equal claim to marriage. See, e.g., Jonathan Turley, One Big, Happy Polygamous
Family, NY Times, July 21, 2011, at A27 (“[Polygamists] want to be allowed to create a loving
family according to the values of their faith.”).
Marriage is not a device traditionally used to acknowledge acceptable sexuality, living
arrangements, or parenting structures. It is a means to encourage and preserve something far
more compelling and precise: the relationship between a man and a woman in their natural
capacity to have children. It attracts and then regulates couples whose sexual conduct may create
6 In this regard it is important to bear in mind that, under this model, it is only the potential for a group of adults to
acquire parental rights—not the actual conferral of parental rights on any particular grouping—that would be the
necessary predicate for marriage. In other words, taken to its logical conclusion, Plaintiffs’ argument for “marriage
equality” would insist that, just as opposite-sex couples are eligible for marriage by reference to their theoretical
procreative capacity, so too would other groups be eligible for marriage by reference to their theoretical ability to
acquire joint parental rights, regardless whether they actually (or even intend) to do so.
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children in order to ameliorate the burdens society ultimately bears when unintended children are
not properly cared for. Neither same-sex couples nor any other social grouping presents the
same need for government involvement, so there is no similar rationale for recognizing them.
CONCLUSION
The Court should deny all Plaintiffs’ Motions for Preliminary Injunction and Motion for
Summary Judgment and Grant Defendants’ Motion for Summary Judgment.
s/ Nancy Moore Tiller
Nancy Moore Tiller
Nancy Moore Tiller & Associates
11035 Broadway, Suite A
Crown Point, IN 46307
Tel: (219) 662-2300
Fax: (219) 662-8739
nmt@tillerlegal.com
Counsel for Michael A. Brown
s/ Robert V. Clutter
Robert V. Clutter
Kirtley, Taylor, Sims, Chadd & Minnette, P.C.
117 W. Main Street
Lebanon, IN 46052
Tel: (765) 483-8549
Fax: (765) 483-9521
bclutter@kirtleytaylorlaw.com
Counsel for Penny Bogan
s/ Darren J. Murphy
Darren J. Murphy
Assistant Hamilton County Attorney
694 Logan St.
Noblesville, IN 46060
Tel: (317) 773-4212
Fax: (317) 776-2369
dmurphy@ori.net
Counsel for Peggy Beaver
GREGORY F. ZOELLER
Attorney General of Indiana
s/ Thomas M. Fisher
Thomas M. Fisher
Solicitor General
Office of the Attorney General
IGC South, Fifth Floor
302 W. Washington Street
Indianapolis, IN 46204
Tel: (317) 232-6255
Fax: (317) 232-7979
Tom.Fisher@atg.in.gov
Counsel for Greg Zoeller and William C.
VanNess II, M.D.
s/ Elizabeth A. Knight
Elizabeth A. Knight
Porter County Administrative Center
155 Indiana Avenue
Suite 205
Valparaiso, IN 46383
Tel: (219) 465-3329
Fax: (219) 465-3362
eknight@porterco.org
Counsel for Karen Martin
Case 1:14-cv-00355-RLY-TAB Document 56 Filed 04/22/14 Page 74 of 75 PageID #: 618
61
CERTIFICATE OF SERVICE
I hereby certify that on April 22, 2014, I electronically filed the foregoing with the Clerk
of the Court using the CM/ECF system, which sent notification of such filing to the following:
Barbara J. Baird
The Law Office Of Barbara J Baird
bjbaird@bjbairdlaw.com
Paul D. Castillo
Camilla B. Taylor
Christopher R. Clark
Lambda Legal Defense & Education Fund, Inc.
pcastillo@lambdalegal.org
ctaylor@lambdalegal.org
cclark@lambdalegal.org
Robert V. Clutter
Kirtley, Taylor, Sims, Chadd & Minnette, P.C.
bclutter@kirtleytaylorlaw.com
Darren J. Murphy
Assistant Hamilton County Attorney
dmurphy@ori.net
Jordan Heinz
Brent Phillip Ray
Kirkland & Ellis LLP
jordan.heinz@kirkland.com
brent.ray@kirkland.com
Nancy Moore Tiller
Nancy Moore Tiller & Associates
nmt@tillerlegal.com
Elizabeth A. Knight
Porter County Administrative Center
eknight@porterco.org
s/ Thomas M. Fisher
Thomas M. Fisher
Solicitor General
Office of the Attorney General
Indiana Government Center South 5th Floor
302 W. Washington St.
Indianapolis, IN 46204-2770
Phone: (317) 232-6255
Fax: (317) 232-7979
Email: Tom.Fisher@atg.in.gov
Case 1:14-cv-00355-RLY-TAB Document 56 Filed 04/22/14 Page 75 of 75 PageID #: 619