Defendants' Answer To Complaint For Declaratory and Injunctive Relief

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

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

DEFENDANTS ANSWER TO COMPLAINT FOR
DECLARATORY AND INJUNCTIVE RELIEF

Defendants Mike Pence, Brian Abbott, Chris Atkins, Ken Cochran, Steve Daniels, J odi
Golden, Michael Pinkham, Kyle Rosebrough, Bret Swanson, and Steve Russo (the State), by
counsel, hereby file this answer to the Complaint for Declaratory and Injunctive Relief (the
Complaint) filed in this action by Pamela Lee, Candace Batten-Lee, Teresa Welborn, Elizabeth
J . Piette, Ruth Morrison, Martha Leverett, Karen Vaughn-Kajmowicz, Tammy Vaughn-
Kajmowicz, J .S.V., T.S.V, and T.R.V. (Plaintiffs).
INTRODUCTION
1. Plaintiffs bring this action pursuant to 42 U.S.C. 1983 to challenge the
constitutionality under the United States Constitution of Indiana Code 31-11-1-1 and its
voiding of their marriages to persons of the same sex, despite plaintiffs' marriages having been
lawfully entered into under the laws of a state other than Indiana. Said challenge to Indiana Code
31-11-1-1 is both facial and as applied to plaintiffs. Indiana Code 31-11-1-1 provides as
follows:
Case 1:14-cv-00406-RLY-TAB Document 43 Filed 05/16/14 Page 1 of 22 PageID #: 310
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(a) Only a female may marry a male. Only a male may marry a
female.
(b) A marriage between persons of the same gender is void in Indiana
even if the marriage is lawful in the place where it is solemnized.
ANSWER: Indiana Code 31-11-1-1 speaks for itself. The State admits that
Plaintiffs seek to bring this action under 42 U.S.C. 1983, but denies that Plaintiffs are
entitled to any relief under that statute.

2. Indiana law provides that [t]he validity of the marriage, being governed by the
law of the place of its celebration, must be recognized in Indiana as a matter of comity. Gunter
v. Dealer's Transport Company, 120 Ind. App. 409; 91 N.E.2d 377, 379 (Ind. Ct. App. 1950).
ANSWER: Gunter v. Dealers Transport Company, 91 N.E.2d 377 (Ind. App. 1950)
(en banc), speaks for itself. To the extent Plaintiffs allege that general principles of
Indiana law require recognition of same-sex marriages entered into in other States,
Defendants deny the allegation.

3. But under comity principles, Indiana is not required to recognize a marriage
solemnized in another state if the marriage violates Indiana's public policy. Mason v. Mason,
775 N.E.2d 706, 709 (Ind. Ct. App. 2002) (while marriage between first cousins under the age of
65 is void in Indiana, marriage will be recognized by Indiana if the first cousins marry in a state
where such marriages are recognized, as there is no Indiana statute that articulates a public policy
against the marriage of first cousins).
ANSWER: Mason v. Mason, 775 N.E.2d 706 (Ind. Ct. App. 2002), speaks for itself.

4. Under Indiana law, the only out-of-state marriages for which there is a public
policy voiding the marriage upon returning to Indiana are those marriages between persons of the
same sex and marriages entered into out of state so as to evade the prohibition of marrying while
mentally incompetent, drunk or on drugs. See, I.C. 31-11-8-6.
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ANSWER: Indiana Code 31-11-8-6 speaks for itself. The State denies that Indiana
law voids only same-sex marriages from other States and marriages solemnized to evade
Indiana marriage laws. The State observes, for example, that Indiana Code 31-11-8-2
prohibits polygamy, Indiana Code 31-11-8-3 prohibits marriages to close relatives,
Indiana Code 31-11-8-5 prohibits common law marriages, and Indiana Code 31-11-2-
1 prohibits marriages of underage individuals absent parental consent or leave of court.

5. Indiana's law restricting marriage to opposite-sex couples publicly stigmatizes
persons in a same-sex marriage and sends a hideous message to their children by implying that
persons entering into same-sex marriages are equivalent to marriages entered into by the
mentally incompetent, the drunk or the drugged.
ANSWER: Indiana Code 31-11-1-1 and Indiana Code 31-11-8-6 speak for
themselves. The State denies any remaining allegations set forth in paragraph 5 of the
Complaint.

6. Indianas refusal to recognize same-sex marriage solemnized in another state
denies plaintiffs a dignity and status of immense import. United States v. Windsor, 133 S.Ct.
2675, 2692 (2013). Moreover, they are stigmatized and relegated to a second-class status by
having their respective marriages declared void by Indiana, which suggests that their
relationships are unworthy of recognition. Id. at 2694.
ANSWER: United States v. Windsor, 133 S. Ct. 2675 (2013), speaks for itself. The
State denies any remaining allegations set forth in paragraph 6 of the Complaint.

JURISDICTION AND VENUE
7. This Court has jurisdiction over this matter pursuant to 28 U.S.C. 1331 and
1343 because this suit raises federal questions pursuant to 42 U.S.C. 1983. Plaintiffs seek both
injunctive relief and a declaratory judgment pursuant to 42 U.S.C. 2201.
ANSWER: The State admits that the Complaint describes at least one claim over
which the Court would have federal question jurisdiction and that Plaintiffs seek to bring
this action under 42 U.S.C. 1983, but denies that Plaintiffs are entitled to any relief
under that statute. The State denies that 42 U.S.C. 2201 has any relevance to this
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matter. The State admits that 28 U.S.C. 2201 authorizes declaratory relief generally.
The State denies that Plaintiffs are entitled to declaratory relief.

8. Venue is proper in the Indianapolis Division of the Southern District of Indiana
under 28 U.S.C. 1391(b) because defendants reside or have their principal offices in this
district.
ANSWER: The State admits the allegations set forth in paragraph 8 of the Complaint.

PARTIES
9. Defendant Mike Pence is the Governor of the State of Indiana. In his official
capacity, he is the chief executive officer of Indiana and is, pursuant to Article V, Section 16 of
the Indiana Constitution, responsible for the faithful execution of the laws of Indiana, including
I. C. 31-11-1-1, the law that excludes same-sex couples from having their out-of-state marriage
recognized in Indiana. Governor Pence is a person within the meaning of 42 U.S.C. 1983 and
was acting under color of state law at all times relevant to this complaint.
ANSWER: Article 5, 16 of the Indiana Constitution speaks for itself. The State
admits that Mike Pence is the Governor of Indiana. To the extent the Complaint seeks
injunctive relief against Governor Pence, the State admits that he is a person within the
meaning of 42 U.S.C. 1983. To the extent the Complaint seeks any other relief against
Governor Pence, the State denies that he is a person within the meaning of 42 U.S.C.
1983. The State denies any remaining allegations set forth in paragraph 9 of the
Complaint.

10. Defendants Brian Abbott, Chris Atkins, Ken Cochran, Steve Daniels, J odi
Golden, Michael Pinkham, Kyle Rosebrough and Bret Swanson are members of the Board of
Trustees of the Indiana Public Retirement System (INPRS) who administer the 1977 Police
Officers and Firefighters Pension and Disability Fund (Pension Fund) in which Officers Lee
and Welborn and Chief Morrison are participants. Defendant Steve Russo is the executive
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director of the INPRS. All of these defendants are persons within the meaning of 42 U.S.C.
1983 and were acting under color of state law at all times relevant to this complaint.
ANSWER: The State admits that Brian Abbott, Chris Atkins, Ken Cochran, Steve
Daniels, J odi Golden, Michael Pinkham, Kyle Rosebrough, and Bret Swanson are
members of the Board of Trustees of the Indiana Public Retirement System (INPRS),
and that Steve Russo is the executive director of the INPRS. To the extent the Complaint
seeks injunctive relief against these Defendants, the State admits they are persons
within the meaning of 42 U.S.C. 1983 and that these Defendants have acted under color
of state law at all times relevant to this matter. To the extent the Complaint seeks any
other relief against these defendants, the State denies that they are persons within the
meaning of 42 U.S.C. 1983. The State admits that Officers Lee and Welborn are active
participants and Chief Morrison is a retired participant in the Pension Fund. The State
denies any remaining allegations set forth in paragraph 10 of the Complaint.

11. All defendants named herein are sued in their official capacities.
ANSWER: The State admits the allegations set forth in paragraph 11 of the
Complaint.

12. Each of the defendants, and those subject to their supervision, direction, and
control, intentionally performed, participated in, aided and/or abetted in some manner the acts
alleged herein, proximately caused the harm alleged herein, and will continue to injure plaintiffs
irreparably if not enjoined from enforcing I. C. 31-11-1-1.
ANSWER: The State denies the allegations set forth in paragraph 12 of the
Complaint.

13. On October 25, 2013, plaintiffs Pamela Lee and Candace Batten-Lee were
lawfully married in California, a state that issues marriage licenses to same-sex couples. Officer
Lee, a military veteran, has served as a police officer for 22 years, serving the last 19 years with
the Indianapolis Metropolitan Police Department.
ANSWER: The State is without knowledge or information sufficient to form a belief
as to the truth of the allegations set forth in paragraph 13 of the Complaint.

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14. On or about J anuary 27, 2014, Officer Lee made application for the designation of
plaintiff Candace Batten-Lee as her spouse and primary beneficiary. The Pension Fund has
declined to recognize Ms. Batten-Lee as the spouse of Officer Lee because it claims it is
prohibited from doing so under I.C. 31-11-1-1.
Complaint.

15. On December 13, 2013, plaintiffs Teresa Welborn and Elizabeth J . Piette were
lawfully married in Hawaii, a state that issues marriage licenses to same-sex couples. For more
than 25 years, Officer Welborn has served as an officer with the Indianapolis Metropolitan
Police Department.

16. On or about February 20, 2014, Officer Welborn made application for the
designation of plaintiff Elizabeth Piette as her spouse and primary beneficiary. The Pension
Fund has declined to recognize Ms. Piette as the spouse of Officer Welborn because it claims it
was prohibited from doing so under I.C. 31-11-1-1.
Complaint.

17. On September 11, 2013, Chief Morrison and Martha Leverett were issued a
marriage license in Maryland, a state that issues marriage licenses to same-sex couples, and
married in Washington, D.C., jurisdiction that permits same-sex marriages. Chief Morrison
served in the Indianapolis Fire Department for over 27 years before retiring as battalion chief on
December 23, 2013.
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18. On or about September 18, 2013, Chief Morrison submitted her application for
retirement benefits and affirmed under oath that her marital status is that of married and that
plaintiff Leverett is her lawful spouse. Chief Morrison was informed by the INPRS that Leverett
would not be recognized as Chief Morrisons spouse because of I. C. 31-11-1-1.
Complaint.

19. On October 25, 2013, Plaintiffs Karen Vaughn-Kajmowicz and Tammy Vaughn-
Kajmowicz were lawfully married in Iowa, a state that issues marriage licenses to same-sex
couples. Sergeant Vaughn-Kajmowicz, has served as a police officer for 18 years with the
Evansville Police Department, most recently working in the Narcotics Division. Plaintiffs
Sergeant Vaughn-Kajmowicz and Tammy Vaughn-Kajmowicz are the parents of J . S. V., T. S.
V. and T. R. V., each of whom is under the age of seven years.

20. In or around October 2013, Sergeant Vaughn-Kajmowicz made application for
the designation of plaintiff Tammy Vaughn-Kajmowicz as her spouse and primary beneficiary.
The Pension Fund has declined to recognize Ms. Vaughn-Kajmowicz as the spouse of Sergeant
Vaughn-Kajmowicz because it claims it is prohibited from doing so under I.C. 31-11-1-1.
Complaint.

COUNT I
Indianas Refusal to Recognize Plaintiffs Marriages
Violates the Equal Protection Clause
of the Fourteenth Amendment to the United States Constitution
21. Plaintiffs incorporate by reference the allegations of paragraphs 1-20.
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ANSWER: The State incorporates by reference its responses to the allegations of

paragraphs 1-20.

22. The Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution provides that no State shall . . . deny to any person within its jurisdiction the equal
protection of the laws.
ANSWER: The Fourteenth Amendment to the United States Constitution speaks for
itself.

23. By refusing to recognize plaintiffs same-sex marriages that were lawful in the
jurisdictions where those marriages were solemnized, defendants are depriving them of the
numerous legal protections that are available to opposite sex couples under Indiana law by virtue
of marriage.
ANSWER: The State admits that Indiana law confers some benefits in some
circumstances based on marital status and that Indiana law declares out-of-state same-sex
marriages void for that purpose. The State denies any remaining allegations set forth in
paragraph 23 of the Complaint.

24. Indianas refusal to recognize same-sex marriages validly performed in other
states infringes on protections offered by the Equal Protection Clause of the Fourteenth
Amendment and treats plaintiffs differently because they married persons of the same sex instead
of the opposite sex.
Complaint.

25. Officer Wellborn and Battalion Chief Morrison are vested members and
beneficiaries of the Pension Fund.
Complaint.

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26. Sergeant Vaughn-Kajmowicz, Officer Welborn and Officer Lee are active duty
police officers who would be covered by the provisions of the Pension Fund if they are killed in
the line of duty.

27. Sergeant Vaughn-Kajmowicz, Officer Welborn and Officer Lee are active duty
police officers who would be covered by the provisions of the Pension Fund if they were to die
while on active duty.

28. Under the Pension Fund, if a police officer dies in the line of duty, then the
"surviving spouse is entitled to a monthly benefit during the spouse's lifetime." I.C. 36-8-8-
14.1. It is not necessary that the police officer be vested in the Pension Fund to be covered by
this provision.
ANSWER: Indiana Code 36-8-8-14.1 speaks for itself. The State admits the
remaining allegations set forth in paragraph 28 of the Complaint.

29. Defendants recognize the spouses of police officers married to persons of the
opposite sex and enter those spouses as spouses in the officers records maintained by the
Pension Fund. If such officers die in the line of duty, their opposite-sex spouse is entitled to be
paid a monthly benefit during the spouse's lifetime.
ANSWER: The State denies the allegations set forth in paragraph 29 of the Complaint
because they are overbroad. Defendant Pence has no role in recogniz[ing] the spouses
of police officers married to persons of the opposite sex and enter[ing] those spouses as
spouses in the officers records maintained by the Pension Fund. Furthermore, no
Defendant would confer such recognition on a marriage that was void under Indiana law,
even if it was a marriage between opposite-sex individuals.

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30. Because of I. C. 31-11-1-1, defendants have refused to enter the same-sex

spouses of Sergeant Vaughn-Kajmowicz, Officer Welborn and Officer Lee as designated
surviving spouse beneficiaries in the officers' records, making their spouses ineligible to claim
this benefit if Sergeant Vaughn-Kajmowicz, Officer Lee or Officer Welborn should die in the
line of duty.
ANSWER: Indiana Code 31-11-1-1 speaks for itself. The State admits that Indiana
law confers some benefits in some circumstances based on marital status and that Indiana
law declares out-of-state same-sex marriages void for that purpose. The State denies any
remaining allegations set forth in paragraph 30 of the Complaint as vague and
ambiguous.

31. Under the Pension Fund, if a police officer is married to a person of the opposite
sex and dies in the line of duty, the Pension Fund will pay that officer's spouse a lump sum, tax
free, of $150,000.00. See I.C. 36-8-8-20(c).
ANSWER: Indiana Code 36-8-8-20(c) speaks for itself.

32. Because of I. C. 31-11-1-1, defendants have refused to designate the spouses of
Sergeant Vaughn-Kajmowicz, Officer Lee and Officer Welborn as designated spouse
beneficiaries in the officers' records as maintained by the Pension Fund, making their spouses
ineligible to claim the lump sum payment should Sergeant Vaughn-Kajmowicz, Officer Lee or
Officer Welborn die in the line of duty.
ambiguous.

33. Under the Pension Fund, if a police officer is married to a person of the opposite
sex and dies while on active duty, the Pension fund will pay that officer's surviving spouse a
monthly benefit. See I.C. 36-8-8-13.8(c).
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ANSWER: Indiana Code 36-8-8-13.8(c) speaks for itself.

34. Because of I. C. 31-11-1-1, defendants have refused to designate the spouses of
Sergeant Vaughn-Kajmowicz, Officer Lee and Officer Welborn as designated spouse
beneficiaries, making them ineligible to claim the monthly benefit should Sergeant Vaughn-
Kajmowicz, Officer Lee or Officer Welborn die while on active duty.
ambiguous.

35. Should Sergeant Vaughn-Kajmowicz die while on active duty, her dependent
children will receive the monthly benefit but as the surviving mother of the children will not
receive a benefit, the total of the family's monthly benefit will be significantly less than a
similarly situated family where the officer's spouse was of the opposite sex.

36. Under the Pension Fund, if a retired firefighter dies while receiving retirement,
the "surviving spouse is entitled to a monthly benefit." I.C. 36-8-8-13.8. If a retired firefighter
is married to a person of the opposite sex, the Pension Fund will pay the spouse of that retired
firefighter a monthly benefit.
ANSWER: Indiana Code 36-8-8-13.8 speaks for itself. The State denies the
remaining allegations set forth in paragraph 36 of the Complaint to the extent they are
overbroad. The State denies that the Pension Fund would pay retirement benefits to a
surviving spouse whose marriage was void under Indiana law, even if it was a marriage
between opposite-sex individuals.

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37[a].
1
Because of I. C. 31-11-1-1, defendants have refused to designate the spouse of
retired Chief Morrison as a spouse beneficiary thereby making her ineligible to claim the
monthly benefit should she be predeceased by Chief Morrison.
remaining allegations set forth in paragraph 37a of the Complaint as vague and
ambiguous.

37[b]. Without certain knowledge of what benefits will be made available to their
surviving spouse, plaintiffs cannot do necessary financial and estate planning. If plaintiffs wish
to provide for the same level of benefits provided by the pension fund to surviving spouses who
are the opposite sex of the deceased officer or firefighter, they must pay an additional amount to
private investment plans, a financial burden not imposed upon same opposite-sex couples.
as to the truth of the allegations set forth in paragraph 37b of the Complaint.

38[a]. In the case of the children, J . S. V., T. S. V. and T. R. V., while the children will
qualify for a monthly benefit, their stay-at-home mother, Tammy Vaughn-Kajmowicz, will not
receive a benefit. Thus, her burden to care for her children as the surviving spouse of Sergeant
Vaughn-Kajmowicz will be more costly and difficult than the financial burden of an opposite-
sex spouse of a deceased police officer with children.
as to the truth of the allegations set forth in paragraph 38a of the Complaint.

38[b]. Additionally, by refusing to recognize the plaintiffs' lawful marriages from other
states, Indiana law as administered and enforced by defendants deprives same-sex married
1
The Complaint includes two paragraphs numbered 37 and two paragraphs numbered 38. For ease of reference, the
State has designated them 37a, 37b, 38a, and 38b.
13
couples of numerous legal protections that are available to opposite-sex married couples by
virtue of marriage. By way of example:
a. A widow or widower of an opposite-sex spouse is entitled to 50% to 100% of his
or her deceased spouses estate if the spouse died intestate. I. C. 29-1-2-1(b).
Because of I. C. 31-11-1-1, same-sex surviving spouses in this situation receive
nothing.
b. If an opposite-sex spouse becomes incapacitated, her spouse may be ordered by a
court to support that spouse during the period of incapacity. I. C. 31-15-7-2.
Because of I. C. 31-11-1-1, plaintiffs are not afforded this protection by Indiana
law.
c. Because of I. C. 31-11-1-1, Indianas divorce laws do not apply to same-sex
spouses.
d. Because of I. C. 31-11-1-1, Indiana requires same-sex couples who file federal
returns with a married filing status to file their Indiana income tax returns with a
filing status of single, thus requiring plaintiffs to complete a sample federal
return entering information as if they are each single, as a basis for their Indiana
return, at additional cost and inconvenience.
ANSWER: The statutes cited in paragraph 38b of the Complaint speak for themselves.
The State admits that Indiana law confers some benefits in some circumstances based on
marital status and that Indiana law declares out-of-state same-sex marriages void for that
purpose. The State denies any remaining allegations set forth in paragraph 38b of the
Complaint.

39. Same-sex married couples are excluded from these and many other legal
protections and obligations provided for opposite-sex married couples under Indiana law. For
example, the publication "More than J ust a Couple - A Compendium of the Rights and
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Responsibilities of Civil Marriage in the Indiana Code" was compiled by the LGBT project at the
Indiana University Maurer School of Law and identifies 614 different provisions in the Indiana
Code that "are legally and linguistically tied to civil marriage, family and spousal relationships."
http://www.indianaequalityaction.org/wordpress/wp-content/uploads/2012/11/More-Than-J ust-a-
Couple.pdf (Last viewed on Mar. 4, 2014). Because plaintiffs are married to persons of the same
sex, they cannot avail themselves of any of the protections, rights or responsibilities that Indiana
imposes upon persons who are married to someone of the opposite sex.
ANSWER: The publication cited in paragraph 39 of the Complaint speaks for itself.
The State admits that Indiana law confers some benefits in some circumstances based on
marital status and that Indiana law declares out-of-state same-sex marriages void for that
purpose. The State denies any remaining allegations set forth in paragraph 39 of the
Complaint.

40. By refusing to recognize the plaintiffs' lawful, out-of-state marriages, Indiana,
acting through the defendants and pursuant to I. C. 31-11-1-1, disadvantages, harms and
stigmatizes plaintiffs solely because their spouses are of the same sex instead of the opposite sex.
Complaint.

41. Because defendants refuse to recognize the plaintiffs' lawful out-of-state
marriages by virtue of I. C. 31-11-1-1, their children are harmed and stigmatized by the
treatment of their family because it is headed by two persons of the same sex versus a family
headed by a man and a woman.
Complaint.

42. I. C. 31-11-1-1 tells the plaintiffs and their children that their marriages -- and
their families -- are not valued in the same manner as opposite-sex marriages or single-parent
families.
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Complaint.

43. By refusing to recognize the plaintiffs' lawful out-of-state marriages, defendants,
acting pursuant to I. C. 31-11-1-1, deny plaintiffs significant legal protections, benefits and a
dignity and status of enormous import. Windsor, 133 S. Ct. at 2692.
ANSWER: United States v. Windsor, 133 S. Ct. 2675 (2013), speaks for itself. The
State denies any remaining allegations set forth in paragraph 43 of the Complaint.

44. By refusing to recognize plaintiffs marriages validly entered into elsewhere,
defendants, acting under color of I. C. 31-11-1-1, deprive plaintiffs of the rights secured by the
Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
Complaint.

COUNT II
Indianas Refusal to Recognize Plaintiffs Marriages
Violates the Due Process Clause of the Fourteenth Amendment
to the United States Constitution
45. Plaintiffs incorporate by reference the allegations of paragraphs 1-44.
paragraphs 1-44.

46. The Fourteenth Amendment to the United States Constitution guarantees to all
citizens due process of law.
ANSWER: The Fourteenth Amendment to the United States Constitution speaks for
itself.

47. Marriage is a fundamental right. Choices regarding marriage, like choices about
other aspects of family life, are a central part of the liberty protected by the Due Process Clause.
because they call for legal conclusions.
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48. Plaintiffs, once they have been validly married in a state which authorizes same-
sex marriage, have a fundamental right to remain married and a fundamental right to have their
marriage recognized.

49. Plaintiffs, as persons in valid, lawful marriages have a liberty interest in their
marital status that is protected by the Due Process Clause of the Fourteenth Amendment,
regardless of where they choose to live in the United States as a married couple.

50. Plaintiffs, as persons in valid, lawful marriages have a protected property interest
in maintaining their lawful marital status and the comprehensive protections and mutual
obligations that marriage provides.

51. Plaintiffs also have a fundamental right to preserve their lawful marital status as
they choose to travel in and out of Indiana.
Complaint because they call for legal conclusions.

52. Ind. Code 31-11-1-1 denies the plaintiffs their fundamental right to have their
lawful marriages recognized and their fundamental right to remain married by voiding, without
any semblance of due process, the marriages they validly entered into in jurisdictions other than
Indiana and thus denies them the myriad benefits, privileges and rights of marriage available
under Indiana law.
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remaining allegations set forth in paragraph 52 of the Complaint because they call for
legal conclusions.

53. The voiding by defendants acting pursuant to I. C. 31-11-1-1 of plaintiffs'
marriages lawfully entered into in jurisdictions other than Indiana denies the plaintiffs
substantive due process by infringing upon their fundamental rights to have their lawful
marriages recognized and to remain married and thus denies them the myriad benefits, privileges
and rights of marriage available under Indiana law.
remaining allegations set forth in paragraph 53 of the Complaint because they call for
legal conclusions.

54. Defendants refusal to recognize plaintiffs respective marriages entered into in
other jurisdictions where those marriages are valid and lawful, and its voiding of those marriages
by operation of law, violates the Due Process Clause.
Complaint.

COUNT III
Indianas Refusal to Recognize Plaintiffs Lawful Marriages
Violates the Full Faith and Credit Clause of the United State Constitution
55. Plaintiffs incorporate by reference the allegations of paragraphs 1- 54.
paragraphs 1-54.

56. The Full Faith and Credit Clause of the United States Constitution provides in
part:
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Section 1.
Full faith and credit shall be given in each state to the public acts, records, and
judicial proceedings of every other state. And the Congress may by general laws
prescribe the manner in which such acts, records, and proceedings shall be
proved, and the effect thereof.
ANSWER: U.S. Const. art. IV, 1 speaks for itself.
57. Defendants refusal to recognize plaintiffs' marriages is a refusal to give full faith
and credit to the public acts and records of the states in which they were married in violation of
the Full Faith and Credit Clause of the United States Constitution.
Complaint.

DECLARATORY AND INJUNCTIVE RELIEF
28 U.S.C. 2201 and 2202;
Federal Rules of Civil Procedure, Rules 57 and 65
58[a].
2
Plaintiffs incorporate by reference the allegations of paragraphs 1- 57.
paragraphs 1-57.

58[b]. This case presents an actual controversy because defendants present and ongoing
denial of equal treatment to plaintiffs; the infringement of plaintiffs' fundamental rights; and the
denial of due process to plaintiffs; and, an infringement of plaintiffs rights promised by the Full
Faith and Credit Clause, subjects them to serious and immediate harms, including ongoing
emotional distress and stigma, warranting the issuance of a judgment declaring that I. C. 33-11-
1-1 violates the Due Process Clause and/or the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution.
ANSWER: The State admits that the matter involves at least one actual controversy.
The State denies any remaining allegations set forth in paragraph 58b of the Complaint.
2
The Complaint includes two paragraphs numbered 58. For ease of reference, the State has designated them 58a
and 58b.
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59. A favorable decision enjoining defendants from further constitutional violations,
and mandating them to recognize plaintiffs' marriages, would redress and prevent the irreparable
injuries to plaintiffs which they have identified, and for which they have no adequate remedy at
law or in equity.
Complaint.

REQUEST FOR RELIEF
WHEREFORE, plaintiffs respectfully request that this Court:
a. Enter a declaratory judgment that Ind. Code 31-11-1-1 on its face and as applied
to plaintiffs violates the Equal Protection Clause of the Fourteenth Amendment to the United
States Constitution;
b. Enter a declaratory judgment that Ind. Code 31-11-1-1 on its face and as applied
to plaintiffs violates the Due Process Clause of the Fourteenth Amendment to the United States
Constitution;
c. Enter a declaratory judgment that Ind. Code 31-11-1-1 on its face and as applied
to plaintiffs violates the Full Faith and Credit Clause of the United States Constitution;
d. Enter a permanent injunction directing defendants to recognize plaintiffs
marriages as valid and lawful within the State of Indiana and to administer the Pension Fund so
as to provide the same benefits for all married couples, regardless of whether the couples are of
the opposite sex or the same sex;
e. Award plaintiffs the costs of suit, including reasonable attorneys fees under 42
U.S.C. 1988; and
f. Enter all further relief to which plaintiffs may be justly entitled.
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ANSWER: The State denies any factual allegations set forth in paragraphs (a) through
(f) of Plaintiffs Request for Relief and denies that Plaintiffs are entitled to any of the
relief requested therein.

AFFIRMATIVE DEFENSES
1. The Court lacks jurisdiction over one or more claims asserted by Plaintiffs
because Governor Pence is not a suitable defendant under Article III and/or the Eleventh
Amendment and principles of sovereign immunity, which bar this action against Governor
Pence.
2. One or more claims asserted by Plaintiffs fail to state a claim on which relief can
be granted because Governor Pence is not a suitable defendant under Article III and/or the
Eleventh Amendment and principles of sovereign immunity, which bar this action against
Governor Pence.
3. Plaintiffs rights, privileges, and immunities secured under the Constitution or
laws of the United States have not been violated by any alleged action, inaction, or omission of
Defendants or the State of Indiana, who at all times have acted in compliance and consistent with
the Constitution and laws of the United States and of the State of Indiana.
4. The statutes, rules, and policies challenged are not discriminatory and, in any
event, advance legitimate and compelling public purposes.
5. The statutes, rules, and policies challenged are constitutional.
The State reserves the right to raise affirmative defenses in the future as needed or
warranted by investigation or discovery.

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Respectfully submitted,
GREGORY F. ZOELLER
Attorney General of Indiana

s/ Thomas M. Fisher
Thomas M. Fisher
Solicitor General
Office of the Attorney General
302 W. Washington St., IGC-S, 5
th
Floor
Indianapolis, Indiana 46204-2770
Phone: (317) 232-6255
Fax: (317) 232-7979
Email: Tom.Fisher@atg.in.gov

22
CERTIFICATE OF SERVICE

I hereby certify that on May 16, 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:
Karen Celestino-Horseman
AUSTIN & J ONES, P.C.
Karen@kchorseman.com

Mark W. Sniderman
SNIDERMAN NGUYEN, LLP
mark@snlawyers.com

William R. Groth
FILLENWARTH DENNERLINE GROTH &
TOWE, LLP
wgroth@fdgtlaborlaw.com

Kathleen M. Sweeney
SWEENEY LAW GROUP, LLC
ksween@gmail.com

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


Defendants' Answer To Complaint For Declaratory and Injunctive Relief

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Defendants' Answer To Complaint For Declaratory and Injunctive Relief

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

ANSWER: The State incorporates by reference its responses to the allegations of

30. Because of I. C. 31-11-1-1, defendants have refused to enter the same-sex

ANSWER: Indiana Code 36-8-8-13.8(c) speaks for itself.

Case 1:14-cv-00406-RLY-TAB Document 43 Filed 05/16/14 Page 22 of 22 PageID #: 331

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