In The United States Court of Appeals For The Seventh Circuit

IN THE
UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

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

MARILYN RAE BASKIN, et al.,

Plaintiffs/Appellees,

v.

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

Defendants/Appellants.

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

RESPONSE IN OPPOSITION TO PLAINTIFFS-APPELLEES QUASNEY AND
SANDLERS EMERGENCY MOTION TO LIFT THE COURTS STAY IN PART

On J une 27, 2014, this Court granted the Defendants Emergency Motion for Stay
Pending Appeal. Plaintiffs Niki Quasney and Amy Sandler now ask this Court to lift its stay as
to the two of them only. The Court should deny Quasney and Sandlers motion.
ARGUMENT

As human beings, the defendant state officials and their lawyers cannot help but
empathize with the plight of Niki Quasney and Amy Sandler. All concerned express their
sympathy to the couple and their family, and no one doubts the sincerity or personal importance
of their appeals to a sense of dignity, pride, and inclusion as reasons for bringing this case and
making their motion to this Court. But Indiana marriage law, which both the Supreme Court and
this Court have indicated should remain in force during the pendency of same-sex marriage
Case: 14-2386 Document: 17-1 Filed: 07/01/2014 Pages: 4 (1 of 166)
2

appeals, permits no hardship exceptions for recognition of same-sex marriages. Indeed, mindful
that this request involves just one couple in very narrow and sympathetic circumstances, and that
it is not merely the Court and parties but the general public that is watching this case, the State
has extensively researched this matter but can find no provision within our legal system that
would allow for some extraordinary relief, or humanitarian exception to the rule of law that
would grant what petitioners request. If this Court can find such an exception that would apply,
this circumstance surely warrants its use.
Having not found a legal exception, the State must oppose the motion, and in so doing
stand on its prior arguments, made in detail in the attached documents, including the Declaration
of Hilari A. Sautbine [Defs. Ex. 1]; Defendants Combined Memorandum in Support of their
Motion for Summary J udgment and in Opposition to Plaintiffs Motions for Preliminary
Injunction and Motion for Summary J udgment [Defs. Ex. 2] at 7-18; and Brief and Required
Short Appendix of Appellants [Defs. Ex. 2] at 11-18.
CONCLUSION
For the foregoing reasons, the Court should DENY Plaintiffs-Appellees Quasney and
Sandlers Emergency Motion to Lift the Courts Stay in Part.

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

Respectfully submitted,

Gregory F. Zoeller
Attorney General of Indiana
s/ Thomas M. Fisher
Thomas M. Fisher
Solicitor General
.
Counsel for Greg Zoeller and William C.
VanNess II, M.D

3

CERTIFICATE OF SERVICE

I hereby certify that on J uly 1, 2014, I electronically filed the foregoing with the Clerk of
the Court using the CM/ECF system, which sent notification of such filing to the following:

No. 14-2386

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

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

Barbara J . Baird
The Law Office Of Barbara J Baird
bjbaird@bjbairdlaw.com
Robert V. Clutter
Kirtley, Taylor, Sims, Chadd & Minnette,
P.C.
bclutter@kirtleytaylorlaw.com

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

No. 14-2387

Chase Strangio
American Civil Liberties Union
cstrangio@aclu.org

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

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

Sean C. Lemieux
Lemieux Law
sean@lemieuxlawoffices.com

No. 14-2388

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

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

4

I further certify that on J uly 1, 2014, I e-mailed courtesy copies of this filing to the
following counsel of record in the District Court:

No. 14-2386

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

No. 14-2388

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

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

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

s/ Thomas M. Fisher
Thomas M. Fisher
Solicitor 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
EXHIBIT1
Case 1:14-cv-00355-RLY-TAB Document 56-1 Filed 04/22/14 Page 1 of 3 PageID #: 620
EXHIBIT2

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION


Plaintiffs,

v.

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

Defendants.
)
)
)
)
)
)
)
)
)
)

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
155 Indiana Avenue, Ste. 205
Valparaiso, IN 46383
Tel: (219) 465-3329
Fax: (219) 465-3362
Counsel for Karen Martin

DARREN J . MURPHY
694 Logan St.
Noblesville, IN 46060
Tel: (317) 773-4212
Fax: (317) 776-2369
dmurphy@ori.net
Counsel for Peggy Beaver

NANCY MOORE TILLER
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
THOMAS M. FISHER
Solicitor General
Tel: (317) 232-6255
Fax: (317) 232-7979
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
Counsel for Penny Bogan

Case 1:14-cv-00355-RLY-TAB Document 56 Filed 04/22/14 Page 1 of 75 PageID #: 545

i
TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................................................... iii
STATEMENT OF MATERIAL FACTS NOT IN DISPUTE .........................................................1
LEGAL STANDARDS ...................................................................................................................4
Preliminary Injunction Standard ......................................................................................................4
Summary J udgment Standard ..........................................................................................................5
ARGUMENT ...................................................................................................................................5
I. Defendant Zoeller Is Entitled to Summary J udgment 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 ones 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. Indianas refusal to recognize the Quasney-Sandler marriage does
not contravene the Equal Protection Clause ..............................................29
C. Indianas 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

ii

a. There is no fundamental right to same-sex marriage, a concept
having no roots in the Nations 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


iii

TABLE OF AUTHORITIES
CASES
Adams v. Howerton,
486 F. Supp. 1119 (C.D. Cal. 1980) ........................................................................................50
Alaska Packers Assn v. Industrial Accident Commn,
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

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 Intl, Inc. v. Chosun Intl, Inc.,
234 F. Supp. 2d 905 (S.D. Ind. 2002) ......................................................................................18
Celotex Corp. v. Catrett,
477 U.S. 317 (1986) ...................................................................................................................5
Certain Underwriters of Lloyds 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

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 & Childrens 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. Dept 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

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 (J an. 6, 2014)......................................................................................................9
Hernandez v. Robles,
805 N.Y.S.2d 354 (N.Y. App. Div. 2005) ...............................................................................40
855 N.E.2d 1 (N.Y. 2006) ............................................................................................50, 51, 55
Hesington v. Hesingtons 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

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. Commr 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. Secy of the Dept 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

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. Admr of Mass. v. Feeney,
442 U.S. 256 (1979) .................................................................................................................41
Pierce v. Socy 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

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

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. Assn 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

xi

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

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
J onathan Turley, One Big, Happy Polygamous Family, NY Times, J uly 21, 2011 ......................59
J oseph Story, Commentaries on the Conflict of Laws 113a (Little Brown, & Co.
6th ed. 1865) ............................................................................................................................26
Melanie B. J acobs, 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

xiii

The History of Indiana Law (Bodenhamer and Shepard, eds.) (2006) ..........................................42
Tony Cook & Barb Berggoetz, Same-Sex Marriage Ban Wont 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

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 J udkins, 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 J udgment [Doc. 38].
STATEMENT OF MATERIAL FACTS NOT IN DISPUTE
Indianas 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
J udkins (Everly-J udkins 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

2

Massachusetts, while on their annual summer vacation to Sandlers family home, because she
was afraid that Nikis health was deteriorating and [she] didnt 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 Nikis] 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. Quasneys 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. Quasneys 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

3

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 J udkins states that she was once temporarily barred from the
hospital room of her same-sex partner, Bonnie Everly. J udkins 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 didnt matter; I was blocked
from being at Bonnies side.). J udkins 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 Indianas 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 Indianas 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.

4

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 highor the injury from the
enforcement of the order sufficiently greatto 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

5

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 Lloyds 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 partys
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 Indianas 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,

6

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

7

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 Generals
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:

8

(1) enjoins Defendants and all those acting in concert from enforcing the Indiana
laws against recognition of Plaintiffs Niki Quasney and Amy Sandlers 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.

Quasneys 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

9

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 J anuary 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 (J an. 6, 2014). In that case, three same-sex
couples challenged Utahs 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.

10

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
[Tennessees 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.

11

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
Quasneys out-of-state same-sex marriage is entitled to recognition in Indiana, her certificate of
deathwhich is an electronic recordcould 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 Quasneys 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

12

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

13

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 Indianas 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

14

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 anyones
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

15

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 [Nikis] 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 members death.
Quasneys 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 Nikis 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

16

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 patients 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) (Indianas
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

17

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 Quasneys legal affairs or Sandlers 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 Courts 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.).

18

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 Indianas marriage lawsi.e., the interest in
avoiding the potential for public confusion over a series of judicial injunctions that keep re-
setting the definition of marriageworks 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 Plaintiffs 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 Intl, Inc. v. Chosun Intl, Inc., 234 F. Supp. 2d 905, 920
(S.D. Ind. 2002) (Though not dispositive, tardiness weighs against a plaintiffs claim of
irreparable harm . . . .). Here, the timing of Plaintiffs lawsuit weighs against their claims for
preliminary relief.

19

1. Plaintiffs claims for specific relief (concerning the certificate of death and the
marriage licenses) are premature. Plaintiff Quasneys 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; Quasneys 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

20

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
personsin the idealto beget children who have a biological relationship to both legal parents.
In this way, a States 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 couples sexual relationship as such. But there is
no reason for government to take any interest in that sexual relationshipand certainly nothing
like the governments 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


21

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 Indianas 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 Indianas 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;

22

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 & Childrens Ctr.,
Inc. v. Sch. City of Mishawaka, 13 F.3d 1052, 1058 (7th Cir. 1994).
Plaintiffs vaguely assert that Indianas 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

23

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 majoritys
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,

24

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 ones 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 States 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 Assn v. Industrial Accident Commn, 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

25

couples but not same-sex couples, see Part III.B.2.a., infra) and the Fourteenth Amendments
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 states
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 purposestreated 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 anothers law licenses, medical licenses, concealed-carry gun
permits, drivers licenses, and notary public commissions, just to name a few.
Next, even if an out-of-state marriage is viewed as a purely private contractwhich it is
notstate and federal constitutions permit rejection of out-of-state contracts that contravene

26

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 Nations history, legal traditions, and practices,
and indeed dates back before the Fourteenth Amendment. See J oseph 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).

27

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 Arizonas prohibition on marriages
between first cousins); Hesington v. Hesingtons 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 J ersey 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
Indianas marriage lawsin 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


28

(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 principlethat 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,

29

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
decisionMasonagainst earlier decisions of its hierarchical superior, the Indiana Supreme
Court. It is instead about whether Indianas 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. Indianas 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

30

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 Indianas
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 Indianas general recognition of out-of-state opposite-sex marriages results

31

in occasional retrospective recognition of a marriage that contravenes Indianas 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 Indianas 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 Indianas 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 States 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 Indianas 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.

32

***
Fundamentally, the constitutional validity of Indianas 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 legitimatenay, compellinginterest in ensuring that its democratic processnot that of
Massachusetts or any other Statewould continue to set marriage policy within the State.
C. Indianas 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 Minnesotas
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

33

Governments 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 Courts 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 Minnesotas traditional marriage law for want of a substantial federal
question. Baker v. Nelson, 409 U.S. 810 (1972). Windsors 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 Yorks]
lawful marriages. Id. at 2696. It is therefore improper to extrapolate from this opinion any
rule that affects any other states 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 States interest in marriages; and (3) that Windsors denunciation of dignitary harm
caused by Section 3 to children of New Yorks state-provided same-sex marriages can be used

34

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
Yorks 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 purposea hallmark of rational basis review
justified Section 3). Under that level of scrutiny, the claim that recognizing same-sex marriage

35

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 States 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 States 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 Nations 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-

36

sex couples. Fundamental rights are those that are objectively, deeply rooted in this Nations
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 Nations 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. Dept of Pub. Health, 798
N.E.2d 941, 969 (Mass. 2003). Other state supreme courts followed suit, see Kerrigan v.
Commr of Pub. Health, 957 A.2d 407, 482 (Conn. 2008), Varnum v. Brien, 763 N.W.2d 862,

37

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 ones 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 Virginias 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 couplenot the right to marriage redefined by fiat. Same-sex marriage is not a
fundamental rightas 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 Indianas 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

38

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. Socy 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 individuals way of life. No

39

Supreme Court caseincluding Windsoreven 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 Indianas
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

40

also, e.g., Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1252, 1286 (N.D. Okla. 2014)
(Oklahomas 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 Indianas 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

41

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.
Admr 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, Indianas 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; J udkins Decl. 5; Carver Decl. 6. Thus, Indianas 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 everyones 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.

42

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 States ability
to define marriage following the Hawaii Supreme Courts 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 Indianas 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

43

historical understanding and purposes of marriage. In contrast, same-sex relationships were
never thought to be marriagesor to further the purposes of marriageanywhere 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. Secy of the Dept 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

44

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 purposea hallmark of rational basis
reviewjustified the law. Id. at 2696. There is nothing about a States 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 orientationthe supposed basis for
discriminationis 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 unintentionallygives rise to State interests in marriage. This distinction erodes any claim
that homosexuals constitute a suspect class vis--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. J ust this winter Indianas 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

45

Marriage Ban Wont 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 its 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 nations shifting landscapea 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 statusconfirms 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).

46

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 challengeIndiana Code Sections 31-11-1-1 and 31-11-4-2do 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 childs 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 childs biological father), 31-9-2-88 (parent means a
biological or an adoptive parent).

47

The legitimizing effect of marriage in Brock had only to do with the fathers
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 childs 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 ineffectualas 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 childs circumstances, and for

48

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 Indianas 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
Indianas 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 States perspective, not the challengers 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 governments
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 statutes 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 States decision to act on the basis of those differences does not give

49

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 benefitsan 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. Assn Council v. Walker, 705 F.3d 640, 653-54 (7th Cir. 2013)
(explaining that under rational basis review, [courts] cannot search for the legislatures 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

50

tendency of heterosexual intercourse to produce children, and the States 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. Secy of the Dept 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), affd 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), affd 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).

51

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
States 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

52

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 States 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

53

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 fidelityin 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 mothers 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 childs 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 governments important interest in
protecting the integrity of the family unit by excluding inquiries into the childs 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).

54

In response to Plaintiffs 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 childs 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 persons parental rights
and responsibilities must be dealt with, either before or after the childs 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 parents rights carries risks of unwarranted

55

exclusion of a biological parentincluding as a source of support for the child that the law
would otherwise imposeon 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 J ustice OConnor 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) (OConnor, 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 (Arizonas prohibition of same-sex marriages furthers a proper

56

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 States 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
Courts 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.

57

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 changeswhether one views them as good, bad, or
inconsequentialjustifies 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. J acobs, Why Just Two?
Disaggregating Traditional Parental Rights and Responsibilities to Recognize Multiple Parents, 9 J .L. & Fam. Stud.
309 (2007).

58

acknowledge) each individuals sexuality. Nor, then, does the governments 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 states
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
societys 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

59

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 parentageand, hence, marriageby any social grouping,
regardless of the existence of a sexual relationship. Sisters, brothers, platonic friends, groups of
three or moreall 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., J onathan Turley, One Big, Happy Polygamous
Family, NY Times, J uly 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 rightsnot the actual conferral of parental rights on any particular groupingthat 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.


60

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 J udgment and Grant Defendants Motion for Summary J udgment.

s/ Nancy Moore Tiller
Nancy Moore Tiller
Tel: (219) 662-2300
Fax: (219) 662-8739
nmt@tillerlegal.com

s/ Robert V. Clutter
Robert V. Clutter
117 W. Main Street
Lebanon, IN 46052
Tel: (765) 483-8549
Fax: (765) 483-9521

s/ Darren J. Murphy
Darren J . Murphy
694 Logan St.
Tel: (317) 773-4212
Fax: (317) 776-2369
dmurphy@ori.net
GREGORY F. ZOELLER
s/ Thomas M. Fisher
Thomas M. Fisher
Solicitor General
Tel: (317) 232-6255
Fax: (317) 232-7979
VanNess II, M.D.

s/ Elizabeth A. Knight
Elizabeth A. Knight
155 Indiana Avenue
Suite 205
Valparaiso, IN 46383
Tel: (219) 465-3329
Fax: (219) 465-3362
Counsel for Karen Martin


61


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

Paul D. Castillo
Camilla B. Taylor
Christopher R. Clark
Lambda Legal Defense & Education Fund, Inc.
pcastillo@lambdalegal.org
cclark@lambdalegal.org

Robert V. Clutter

Darren J . Murphy
dmurphy@ori.net

J ordan Heinz
Brent Phillip Ray

Nancy Moore Tiller
nmt@tillerlegal.com

Elizabeth A. Knight

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

Indiana Government Center South 5th Floor
302 W. Washington St.
Phone: (317) 232-6255
Fax: (317) 232-7979
Email: Tom.Fisher@atg.in.gov

EXHIBIT3

IN THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

No. 14-2037

Plaintiffs/Appellees,

v.

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

On Appeal from the United States District Court for the
Southern District of Indiana, No. 1:14-cv-355-RLY-TAB
The Honorable Richard L. Young, Judge

BRIEF AND REQUIRED SHORT APPENDIX OF APPELLANTS

ROBERT V. CLUTTER
Kirtley, Taylor, Sims, Chadd &
Minnette, P.C.
117 W. Main Street
Lebanon, IN 46052
(765) 483-8549

DARREN J. MURPHY
694 Logan St.
(317) 773-4212
dmurphy@ori.net

GREGORY F. ZOELLER
THOMAS M. FISHER
Solicitor General
(317) 232-6255
Counsel for Greg Zoeller and William
C. VanNess II, M.D.

NANCY MOORE TILLER
(219) 662-2300
nmt@tillerlegal.com

Case: 14-2037 Document: 14 Filed: 06/18/2014 Pages: 81 Case: 14-2386 Document: 17-4 Filed: 07/01/2014 Pages: 82 (86 of 166)

i
TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................................... iii
JURISDICTIONAL STATEMENT ............................................................................... 1
STATEMENT OF THE ISSUES ................................................................................... 2
STATEMENT OF THE CASE ....................................................................................... 2
SUMMARY OF THE ARGUMENT .............................................................................. 7
STANDARD OF REVIEW ........................................................................................... 10
ARGUMENT ................................................................................................................ 11
I. Until the Supreme Court Addresses the Constitutionality of
Traditional Marriage Definitions, Injunctive Relief of Any Type
Against Such Laws Is Inappropriate ..................................................... 11
A. In challenges to traditional marriage definitions, courts
around the Nation, including the Supreme Court, have ruled
that injunctions are not appropriate prior to final appellate
resolution of the constitutionality of such definitions ................ 12
B. Preliminary injunctive relief is inappropriate because
Plaintiffs have not asserted any legally cognizable
irreparable harm traceable to any Defendant ............................ 13
II. Plaintiffs Due Process and Equal Protection Same-Sex Marriage
Claims Fail on the Merits ...................................................................... 19
A. For state government, marriage is regulation ........................... 19
B. No substantive constitutional right to same-sex marriage
exists ............................................................................................ 21
C. Due process and equal protection principles do not compel
recognition of other States same-sex marriages ........................ 24
1. There is no due process right to interstate marriage
recognition, particularly where a marriage
contravenes public policy .................................................. 25
2. Indianas refusal to recognize the Quasney-Sandler
marriage does not contravene the Equal Protection
Clause ................................................................................ 31
D. Indianas traditional marriage definition is constitutional ....... 34
1. Limiting marriage regulation to the union of a man
and a woman does not implicate a suspect (or quasi-
suspect) class ..................................................................... 34

ii
a. Traditional marriage does not discriminate
based on sex ............................................................ 35
b. Traditional marriage does not discriminate
based on sexual orientation ................................... 36
c. Homosexuals do not constitute a suspect class ..... 38
2. Traditional marriage satisfies constitutional review ...... 41
a. States recognize opposite-sex marriages to
encourage responsible procreation, and this
rationale does not apply to same-sex couples ....... 42
b. Many courts have rejected the theory that
traditional marriage is about homosexual
animus .................................................................... 46
3. No other limiting principle for marriage is apparent ...... 47
CONCLUSION ............................................................................................................. 52
CERTIFICATE OF WORD COUNT ........................................................................... 53
CERTIFICATE OF SERVICE ..................................................................................... 54
REQUIRED SHORT APPENDIX ............................................................................... 55


iii
TABLE OF AUTHORITIES

CASES
Adams v. Howerton,
486 F. Supp. 1119 (C.D. Cal. 1980) ........................................................................ 43
Adarand Constructors, Inc. v. Pena,
515 U.S. 200 (1995) ................................................................................................ 30
Andersen v. King Cnty.,
138 P.3d 963 (Wash. 2006) ............................................................................... 42, 43
Aviation Consumer Action Project v. Washburn,
535 F.2d 101 (D.C. Cir. 1976) ................................................................................ 10
Baker v. Nelson,
191 N.W.2d 185 (Minn. 1971) ................................................................................ 43
Baker v. Nelson,
409 U.S. 810 (1972) ............................................................................................ 9, 21
Baker v. Wade,
769 F.2d 289 (5th Cir. 1985) .................................................................................. 38
Bartrom v. Adjustment Bureau, Inc.,
618 N.E.2d 1 (Ind. 1993) ........................................................................................ 20
Bd. of Trs. of Univ. of Ala. v. Garrett,
531 U.S. 356 (2001) ................................................................................................ 41
Bishop v. United States ex rel. Holder,
962 F. Supp. 2d 1252 (N.D. Okla. 2014) ................................................................ 35
Bostic v. Rainey,
970 F. Supp. 2d 456 (E.D. Va. 2014) ...................................................................... 48
Bucca v. State,
128 A.2d 506 (N.J. Super. Ct. Ch. Div. 1957) ........................................................ 27
C.E.W. v. D.E.W.,
845 A.2d 1146 (Me. 2004) ....................................................................................... 48
Catalano v. Catalano,
170 A.2d 726 (Conn. 1961) ..................................................................................... 27

iv
CASES [CONTD]
Citizens for Equal Prot. v. Bruning,
455 F.3d 859 (8th Cir. 2006) ...................................................................... 19, 38, 43
City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432 (1985) ................................................................................................ 39
Conaway v. Deane,
932 A.2d 571 (Md. 2007) ........................................................................................ 43
Cook v. Cook,
104 P.3d 857 (Ariz. Ct. App. 2005) ........................................................................ 27
Cook v. Gates,
528 F.3d 42 (1st Cir. 2008) ..................................................................................... 38
Cunningham v. Cunningham,
206 N.Y. 341 (1912) ................................................................................................ 28
Davis v. FEC,
554 U.S. 724 (2008) ................................................................................................ 15
Dean v. District of Columbia,
653 A.2d 307 (D.C. 1995) ........................................................................................ 43
Equal. Found. of Greater Cincinnati, Inc. v. City of Cincinnati,
128 F.3d 289 (6th Cir. 1997) .................................................................................. 38
Freedom from Religion Found., Inc. v. Obama,
641 F.3d 803 (7th Cir. 2011) .................................................................................. 14
Gonzales v. North Twp. of Lake Cnty.,
4 F.3d 1412 (7th Cir. 1993) .................................................................................... 14
Goodridge v. Dept of Pub. Health,
798 N.E.2d 941 (Mass. 2003) ................................................................................. 24
Goodwin v. George Fischer Foundry Sys., Inc.,
769 F.2d 708 (11th Cir. 1985) ................................................................................ 26
Harris v. City of Zion,
927 F.2d 1401 (7th Cir. 1991) ................................................................................ 14
Hawkins v. Moss,
503 F.2d 1171 (4th Cir. 1974) ................................................................................ 25

v
CASES [CONTD]
Hemphill v. Orloff,
277 U.S. 537 (1928) ................................................................................................ 25
Herbert v. Kitchen,
134 S. Ct. 893 (Jan. 6, 2014) .................................................................................. 12
805 N.Y.S.2d 354 (N.Y. App. Div. 2005) ................................................................ 35
855 N.E.2d 1 (N.Y. 2006) ............................................................................ 43, 44, 46
Hesington v. Estate of Hesington,
640 S.W.2d 824 (Mo. Ct. App. 1982) ...................................................................... 27
Hohe v. Casey,
868 F.2d 69 (3d Cir. 1989) ...................................................................................... 10
Illinois Bell Tel. Co. v. WorldCom Techs., Inc.,
157 F.3d 500 (7th Cir. 1998) .................................................................................. 11
In re Kandu,
315 B.R. 123 (Bankr. W.D. Wash. 2004) ............................................................... 43
In re M.C.,
195 Cal. App. 4th 197 (2011) .................................................................................. 49
In re Marriage of J.B. & H.B.,
326 S.W.3d 654 (Tex. App. 2010) ............................................................... 43, 44, 47
In re Parentage of L.B.,
122 P.3d 161 (Wash. 2005) ..................................................................................... 48
Jackson v. Abercrombie,
884 F. Supp. 2d 1065 (D. Haw. 2012) ........................................................ 35, 42, 43
Johnson v. Robison,
415 U.S. 361 (1974) ................................................................................................ 41
Kelderhaus v. Kelderhaus,
467 S.E.2d 303 (Va. Ct. App. 1996) ....................................................................... 27
Kerrigan v. Commr of Pub. Health,
957 A.2d 407 (Conn. 2008) ..................................................................................... 24

vi
CASES [CONTD]
King v. Mullins,
171 U.S. 404 (1898) ................................................................................................ 30
Kitchen v. Herbert,
961 F. Supp. 2d 1181 (D. Utah 2013) .................................................................... 12
LaChappelle v. Mitten,
607 N.W.2d 151 (Minn. Ct. App. 2000) .................................................................. 49
Lawrence v. Texas,
539 U.S. 558 (2003) ......................................................................................... passim
Lofton v. Secy of the Dept of Children & Family Servs.,
358 F.3d 804 (11th Cir. 2004) .......................................................................... 38, 43
Loving v. Virginia,
388 U.S. 1 (1967) .................................................................................. 21, 35, 37, 38
Manning v. Hunt,
119 F.3d 254 (4th Cir. 1997) .................................................................................. 11
Mason v. Mason,
775 N.E.2d 706 (Ind. Ct. App. 2002) .......................................................... 29, 30, 32
Morrison v. Sadler,
821 N.E.2d 15 (Ind. Ct. App. 2005) ................................................................. passim
Osoinach v. Watkins,
180 So. 577 (Ala. 1938) ........................................................................................... 27
People v. Ezeonu,
588 N.Y.S.2d 116 (N.Y. Crim. Div. 1992) .............................................................. 27
Pers. Admr of Mass. v. Feeney,
442 U.S. 256 (1979) ................................................................................................ 37
Preston v. Thompson,
589 F.2d 300 (7th Cir. 1978) ............................................................................ 10, 17
Price-Cornelison v. Brooks,
524 F.3d 1103 (10th Cir. 2008) .............................................................................. 38
Reno v. Flores,
507 U.S. 292 (1993) ................................................................................................ 45

vii
CASES [CONTD]
Roche v. Washington,
19 Ind. 53 (1862) ..................................................................................................... 29
Romer v. Evans,
517 U.S. 620 (1996) .......................................................................................... 39, 40
Sclamberg v. Sclamberg,
41 N.E.2d 801 (Ind. 1942) ...................................................................................... 29
Schroeder v. Hamilton Sch. Dist.,
282 F.3d 946 (7th Cir. 2002) .................................................................................. 38
Sevcik v. Sandoval,
911 F. Supp. 2d 996 (D. Nev. 2012) ..................................................... 18, 35, 36, 43
Sherman v. Cmty. Consol. Sch. Dist. 21 of Wheeling Twp.,
980 F.2d 437 (7th Cir. 1992) .................................................................................. 18
Siegel v. LePore,
234 F.3d 1163 (11th Cir. 2000) .............................................................................. 11
Singer v. Hara,
522 P.2d 1187 (Wash. Ct. App. 1974) .............................................................. 43, 44
Smelt v. County of Orange,
374 F. Supp. 2d 861 (C.D. Cal. 2005) ..................................................................... 43
SmithKline Beecham Corp. v. Abbott Labs.,
740 F.3d 471 (9th Cir. 2014) .................................................................................. 38
Standhardt v. Superior Court ex rel. Cnty. of Maricopa,
77 P.3d 451 (Ariz. Ct. App. 2003) .............................................................. 42, 43, 46
Steel Company v. Citizens for a Better Environment,
523 U.S. 83 (1998) ............................................................................................ 13, 14
Steffan v. Perry,
41 F.3d 677 (D.C. Cir. 1994) .................................................................................. 38
Tigner v. Texas,
310 U.S. 141 (1940) ................................................................................................ 41
United Air Lines, Inc. v. Air Line Pilots Assn, Intl,
563 F.3d 257 (7th Cir. 2009) .................................................................................. 10

viii
CASES [CONTD]
United States v. Windsor,
133 S. Ct. 2675 (2013) ..................................................................................... passim
V.C. v. M.J.B.,
748 A.2d 539 (N.J. 2000) ........................................................................................ 49
Valley Forge Christian College v. Americans United for Separation of Church &
State, Inc.,
454 U.S. 464 (1982) ................................................................................................ 14
Varnum v. Brien,
763 N.W.2d 862 (Iowa 2009) .................................................................................. 24
Veney v. Wyche,
293 F.3d 726 (4th Cir. 2002) .................................................................................. 38
Walgreen Co. v. Sara Creek Prop. Co.,
966 F.2d 273 (7th Cir. 1992) .................................................................................. 10
Washington v. Davis,
426 U.S. 229 (1976) ................................................................................................ 36
Washington v. Glucksberg,
521 U.S. 702 (1997) .......................................................................................... 23, 24
Wilson v. Ake,
354 F. Supp. 2d 1298 (M.D. Fla. 2005) .................................................................. 43
Winter v. Natural Res. Def. Council, Inc.,
555 U.S. 7 (2008) .................................................................................................... 10
Wolf v. Walker,
No. 14-cv-64-bbc, 2014 WL 2693963 (W.D. Wis. June 13, 2014) .......................... 12
Woodward v. United States,
871 F.2d 1068 (Fed. Cir. 1989) ............................................................................... 38
FEDERAL STATUTES
28 U.S.C. 1292(a)(1) .................................................................................................... 2
28 U.S.C. 1331 ............................................................................................................ 1
28 U.S.C. 1343 ............................................................................................................. 1

ix
FEDERAL STATUTES [CONTD]
42 U.S.C. 1983 ............................................................................................................. 1
STATE STATUTES
13 Del. Code 8-201 .................................................................................................... 48
Act of Jan. 26, 1818, Chapter 34, 1 ............................................................................ 3
D.C. Code 16-831.01 et seq. ....................................................................................... 48
Ind. Code 4-6-1-6 ....................................................................................................... 18
Ind. Code 6-3-4-2 ....................................................................................................... 20
Ind. Code 29-1-2-1 ..................................................................................................... 20
Ind. Code 29-1-2-14 ................................................................................................... 20
Ind. Code 30-4-2.1-9 .................................................................................................. 20
Ind. Code 31-1-1-1 ....................................................................................................... 3
Ind. Code 31-7-1-2 ....................................................................................................... 3
Ind. Code 31-11-1-1 ............................................................................................ passim
Ind. Code 31-11-1-1(a) ................................................................................................. 3
Ind. Code 31-11-1-1(b) ......................................................................................... 1, 3, 6
Ind. Code 31-11-1-3 ................................................................................................... 20
Ind. Code 31-11-4-2 ................................................................................................... 18
Ind. Code 31-11-4-4 ................................................................................................... 28
Ind. Code 31-11-4-11 ................................................................................................. 28
Ind. Code 31-14-7-1 ................................................................................................... 20
Ind. Code 31-11-8-6 ............................................................................................. 28, 31
Ind. Code 31-15-2-3 ................................................................................................... 20
Ind. Code 31-15-2-16 ................................................................................................. 20

x
STATE STATUTES [CONTD]
Ind. Code 31-15-7-4 ................................................................................................... 21
Ind. Code 31-16-14-1 ................................................................................................. 20
Ind. Code 31-16-14-4 ................................................................................................. 20
Ind. Code 34-46-3-1(4) ............................................................................................... 20
Ind. Code 35-46-1-6 ................................................................................................... 20
Pub. L. No. 180-1986, 1 ............................................................................................... 3
Pub. L. No. 198-1997, 1 ............................................................................................... 3
RULES
Fed. R. Civ. P. 65 ......................................................................................................... 17
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 ................................................................................................................ 40
Harvey M. Applebaum, Miscegenation Statutes: A Constitutional and Social
Problem, 53 Geo. L.J. 49 (1964) ............................................................................. 38
Jonathan Turley, One Big, Happy Polygamous Family, NY Times,
July 21, 2011 ........................................................................................................... 51
Joseph Story, Commentaries on the Conflict of Laws 113a (Little Brown,
& Co. 6th ed. 1865) ................................................................................................. 27
Morgan Little, Gay Marriage Movement Wins Significant Victories in 2013,
LA Times (Dec. 9, 2013), available at http://www.latimes.com/nation/nation
now/ la-pn-gay-marriage-movement-gains-2013-20131206,0,1888807.
story#axzz2zdVzLoIA ............................................................................................. 39
Restatement (Second) of Conflict of Laws (1971) ....................................................... 26
Richard A. Posner, Sex and Reason (1992) ................................................................. 21
Richard Posner, Should There Be Same-Sex Marriage? And If So, Who Should
Decide? 95 Mich. L. Rev. 1578 (1997) .................................................. 23, 24, 35, 40

xi
OTHER AUTHORITIES [CONTD]
Steve Sanders, The Constitutional Right to (Keep Your) Same-Sex Marriage,
110 Mich. L. Rev. 1421 (2012) ................................................................................ 31
Tony Cook & Barb Berggoetz, Same-Sex Marriage Ban Wont 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/ .................................................... 39
Willystine Goodsell, A History of the Family as a Social and Educational
Institution (The Macmillan Company 1915) ......................................................... 49


JURISDICTIONAL STATEMENT

Same-sex couples and their minor children, including one couple that was
married in Massachusetts, brought this action pursuant to 42 U.S.C. 1983 seeking
a declaratory judgment, temporary restraining order, and preliminary and
permanent injunctions against Defendants, state and local government officials,
with regard to Indiana Code 31-11-1-1, which sets forth Indianas traditional
definition of marriage. District Court Docket Number (Doc. No.) 1 at 33-34.
Plaintiffs claimed that Section 31-11-1-1 violates the Due Process and Equal
Protection Clauses of the Fourteenth Amendment to the United States
Constitution. Id. at 33. The district court has subject-matter jurisdiction over this
case under 28 U.S.C. 1331 and 1343.
On May 8, 2014, the district court filed its Entry on Plaintiffs Motion for a
Preliminary Injunction enjoining Defendants and all those acting in concert . . .
from enforcing Indiana statute 31-11-1-1(b) against recognition of Plaintiffs, Niki
Quasneys and Amy Sandlers, valid out-of-state marriage and holding that the
State of Indiana must recognize their marriage. Appellants Short Appendix
(Short App.) 13.
Defendants filed a Notice of Appeal on May 8, 2014, seeking review of the
district courts preliminary injunction. Doc. No. 66. Also on that date, Defendants
filed with the district court a motion to stay enforcement of the preliminary
injunction pending appeal. Doc. No. 68. That motion remains pending. This Court

2
has jurisdiction over this interlocutory appeal of an injunction pursuant to 28
U.S.C. 1292(a)(1).
STATEMENT OF THE ISSUES
1. Whether a preliminary injunction commanding state and local
government officials to recognize an out-of-state same-sex marriage is appropriate
where (1) the Supreme Court and lower federal courts have universally stayed other
similar injunctions whenever contested; (2) the injunction purports to remedy
intangible harms of stigma and indignity apart from any cognizable Article III
harm; and (3) the only possible cognizable Article III injury can be adequately
addressed following final judgment.
2. Whether, for purposes of government-regulated marriage, the
Fourteenth Amendments Due Process Clause requires States to license and
regulate same-sex marriages, or recognize and regulate same-sex marriages
licensed in other States.
3. Whether, for purposes of government-regulated marriage, the
Fourteenth Amendments Equal Protection Clause requires a State to license and
regulate same-sex marriages, or recognize and regulate same-sex marriages
licensed in other States, on the same terms that the State licenses, recognizes, and
regulates opposite-sex marriages.
STATEMENT OF THE CASE
1. While Indianas current marriage-definition statute was enacted in
1997, Indiana has always defined marriage as the union of one man and one woman

3
and has never licensed, recognized, or regulated same-sex marriages. By 1818two
years after Indiana became a State, the legislature had defined marriage as an
opposite-sex institution. See Act of Jan. 26, 1818, ch. 34, 1, Laws of the State of
Indiana 224 (1818) (That male persons of the age of fourteen years, and female
persons of the age of twelve years . . . may be joined in marriage.).
This definition has been substantially preserved for nearly two centuries.
Before 1986, a 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[, and o]nly a male may marry a female. Pub. L. No. 180-1986, 1, 2 Acts
1986 1800 (codified at Ind. Code 31-7-1-2). In 1997, the legislature re-enacted this
exact wording at Indiana Code Section 31-11-1-1(a), and added that [a] marriage
between persons of the same gender is void in Indiana even if the marriage is lawful
in the place where it is solemnized. Pub. L. No. 198-1997, 1 (codified at Ind. Code
31-11-1-1(b)).
2. On March 10, 2014, Plaintiffs Marilyn Rae Baskin, Esther Fuller,
Bonnie Everly, Linda Judkins, Dawn Carver, and Pamela Eanes filed a Complaint
against Indiana Attorney General Greg Zoeller, Boone County Clerk Penny Bogan,
Porter County Clerk Karen M. Martin, Lake County Clerk Michael A. Brown, and
Hamilton County Clerk Peggy Beaver, seeking a declaration that Indianas current
marriage definition statute, Indiana Code 31-11-1-1, violates Plaintiffs rights
under the Due Process Clause and Equal Protection Clause of the Fourteenth

4
Amendment to the United States Constitution. Doc. No. 1 at 24. In their
Complaint, Plaintiffs also sought a permanent injunction (1) enjoining enforcement
by all Defendants of Indiana Code 31-11-1-1, and (2) requiring the Defendant
Clerks to accept applications and issue marriage license to same-sex couples on the
same terms as different-sex couples and to record the valid marriages of same-sex
couples from other jurisdictions on the same terms as the valid marriages of
different-sex couples from other jurisdictions. Id.
Plaintiffs filed their First Amended Complaint on March 31, 2014.
Appellants Appendix (App) 1. Plaintiffs Amended Complaint added seven new
plaintiffs: Henry Greene, Glenn Funkhouser, and their minor child C.A.G.; and
Nikole Quasney, Amy Sandler, and their minor children A.Q.-S. and M.Q.-S. Id.
The Amended Complaint also added as a Defendant the Commissioner of the
Indiana State Department of Health, William C. VanNess II, M.D. Id. at 2.
In addition to the new parties, Plaintiffs Amended Complaint also sought
relief relating specifically to Plaintiffs Amy Sandler and Nikole Quasney. Id. at 25-
26. Quasney and Sandler are Indiana residents who were married in the
Commonwealth of Massachusetts on August 29, 2013. Id. at 9. They have two
daughters, Plaintiffs A.Q.-S. and M.Q.-S. Id. Quasney suffers from Stage IV
ovarian cancer. Id. at 10. In the Amended Complaint, the Quasney-Sandler couple
and their children requested a temporary restraining order and/or preliminary
injunction:
i. enjoining Defendants and all those acting in concert
from enforcing Indianas laws prohibiting recognition

5
of Plaintiffs Niki Quasney and Amy Sandlers legal
out-of-state marriage; [and]

ii. should Plaintiff Niki Quasney pass away in Indiana,
ordering DEFENDANT COMMISSIONER OF
INDIANA STATE DEPARTMENT OF HEALTH and
all those acting in concert to issue to Plaintiff Amy
Sandler a death certificate that records her marital
status as married or widowed and that lists her as
the surviving spouse; said order shall include a
requirement that Defendant VanNess issues directives
to local health departments, funeral homes,
physicians, coroners, medical examiners, and others
who assist with the completing of Indiana death
certificates explaining their duties under the order of
this Court[.]

Id. at 33-34. Plaintiffs also asked that any injunction require Commissioner
VanNess to change all appropriate forms, certificates, policies, and instructions in
order to recognize marriage applications and marriages of same-sex couples. Id. at
33.
On March 31, 2014, the same day Plaintiffs filed their Amended Complaint,
Plaintiffs Sandler, Quasney, A.Q.-S., and M.Q.-S. also filed a Motion for Temporary
Restraining Order and Preliminary Injunction.
1
Doc. No. 31. All Plaintiffs filed a
Motion for Summary Judgment on April 3, 2014, and Defendants filed a cross-
Motion for Summary Judgment on April 22, 2014. Doc. Nos. 38, 55.
On April 10, 2014, the district court held a hearing on the Motion for
Temporary Restraining Order. Doc. No. 44. The court orally granted the motion
that same day, with a formal Order following on April 18, 2014. Id.; App. 57.

1
The remaining plaintiffs (Baskin, Fuller, Everly, Judkins, Carver, Eanes, Greene,
Funkhouser, and C.A.G.) filed a separate Motion for Preliminary Injunction on April 3,
2014, but withdrew the motion before the district court could rule on it. Doc. Nos. 35, 65.

6
Under the TRO, which expired by its own terms on May 8, 2014, Defendants were
enjoined from enforcing Indiana Code 31-11-1-1(b) against Plaintiffs Quasney and
Sandler and the state of Indiana was required to recognize only their marriage.
App. 66-67. The TRO also required Commissioner VanNess, in the event that
Quasney passes away in Indiana, to issue a death certificate listing Quasney and
Sandler as married and Sandler as the surviving spouse. Id. at 66.
The district court held a hearing on the parties cross-motions for summary
judgment and on the Quasney-Sandler couples motion for preliminary injunction on
May 2, 2014. Doc. No. 63. On May 8, 2014, the district court issued an order
granting the motion for preliminary injunction. Short App. 2. The court ruled that
Quasney and Sandler had a reasonable likelihood of success on the merits of their
equal protection and due process claims, id. at 8-9, and that the balance of harms
weighed in their favor. Id. at 13. The court enjoined Defendants from enforcing
Indiana statute 31-11-1-1(b) against recognition of Plaintiffs, Niki Quasneys and
Amy Sandlers, valid out-of-state marriage and required the State of Indiana [to]
recognize their marriage. Id. In addition, in the event that Quasney passes away
in Indiana, the court ordered Commissioner VanNess to issue a death certificate
that records her marital status as married and lists Sandler as the surviving
spouse. Id. Finally, as in its TRO, the court ordered Commissioner VanNess to
issue directives to local health departments, funeral homes, physicians, coroners,
and medical examiners explaining their duties with respect to the death certificate.
Id. at 13-14.

7
The Order stated that the preliminary injunction will remain in force until
the court renders judgment on the merits of the Plaintiffs claims. Id. at 14. There
has been no ruling on the merits as of this filing; the parties cross-motions for
summary judgment remain pending.
Defendants Zoeller, VanNess, Bogan, Brown, and Beaver filed their Notice of
Appeal on May 8, 2014. Doc. No. 66. That same day, these Defendants filed in the
district court a Motion for Stay Pending Appeal.
2
Doc. No. 68. Briefing is
completed on that motion and the parties now await the district courts decision.
SUMMARY OF THE ARGUMENT

With respect to state governments involvement, marriage is regulation. It is
a means of enticing individuals whose sexual intercourse may produce children to
enter voluntarily into a relationship that the government recognizes and regulates
for the sake of protecting and providing for any children the couples sexual union
may produce. The only couples that fall into this category are opposite-sex couples,
which is why (at least as a governmental matter) marriage has traditionally been
limited to them. Nowadays, challenges to traditional marriage definitions and
regulatory structures are hardly novel, but they are no less startling and
noteworthy for their stated objectiveto extend voluntary government regulation,
as a matter of constitutional imperative, to couples defined by sexual activity the
Supreme Court declared off limits to mandatory government regulation in Lawrence
v. Texas.

2
Defendant Karen Martin is not a party to this appeal and did not participate in the stay
motion.

8
The reason same-sex couples seek this recognition, of course, is that, while a
form of regulation as a governmental matter, marriage also carries positive social
and cultural connotations, as well as some exclusive governmental benefits and
protections. But government is not society or culture and cannot compel social
acceptance by fiat. And the point of marriages associated benefits and protections
is to encourage child-rearing environments where parents care for their biological
children in tandem. Same-sex couples do not, as sexual intimates, prompt the same
regulatory concerns as opposite-sex couples. Accordingly, States need not extend
the marriage regulatory scheme to same-sex couples.
This appeal arises from a preliminary injunction ostensibly requiring
Defendants to recognize a Massachusetts same-sex marriage on constitutional
grounds. The constitutional claims fundamentally lack merit, but even aside from
that, a preliminary injunction is not appropriate in this case. First, the Supreme
Court and lower federal courts have stayed all contested injunctionseven final,
permanent injunctionsenforcing similar same-sex marriage claims. These stays
demonstrate that, on balance, injunctive relief of any sort concerning same-sex
marriage is not justified until the Supreme Court addresses the issue. Second, the
injunction targets alleged psychological harms such as stigma, indignity, and the
like, but such harms are not cognizable under Article III, nor are they traceable to
any Defendant in the case. The only concrete, tangible harm traceable to a
Defendant is a potential harm having to do with Quasneys death certificate. But

9
that is not an appropriate target for preliminary relief because it can adequately be
addressed with a final, permanent injunction, if necessary.
On the merits, the Quasney-Sandler couples claims must fail for the
fundamental points made above, but also, more doctrinally, because the rights they
claim have no grounding in constitutional text, history, or structure. There is no
due process or equal protection right to have ones out-of-state same-sex marriage
recognized at home, and no due process or equal protection right to same-sex
marriage outright. Supreme Court cases recognizing a right to marriage have only
to do with opposite-sex couples, not same-sex couples. The Supreme Courts merits
decision rejecting same-sex marriage claims in Baker v. Nelson still controls, and is
unmitigated by last years decision in United States v. Windsora case expressly
confined to its facts that in any case reaffirms broad state authority over marriage.
The most troubling aspect of the constitutional argument for same-sex
marriage, however, is that it has no limiting principle. Neither plaintiffs in this
case nor courts awarding same-sex marriage rights in other cases have identified
any government objective to be attained by regulating the relationships of same-sex
couples. The short-range implication of the efforts to constitutionalize same-sex
marriage is that all relationships are entitled to such recognition and regulation,
whether they involve sex or not, whether they involve two people or more. The
long-range implication is that government has no discernible reason to recognize
and regulate marriage as a limited set of relationships. Ultimately, that is, there is

10
no constitutional argument for same-sex marriage, only an argument against
marriage. This Court should reject that argument and reverse the district court.
STANDARD OF REVIEW
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). Preliminary injunctive relief must be narrowly tailored to
remedy the specific harm shown. Aviation Consumer Action Project v. Washburn,
535 F.2d 101, 108 (D.C. Cir. 1976). A district courts grant of a preliminary
injunction is reviewed de novo as to its legal conclusions, for abuse of discretion as
to its balance of the equities, and for clear error as to its factual findings. See
United Air Lines, Inc. v. Air Line Pilots Assn, Intl, 563 F.3d 257, 269 (7th Cir.
2009).
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).

11
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 highor
the injury from the enforcement of the order sufficiently greatto warrant a
conclusion that the balance of error costs tilts in favor of relief. Illinois Bell Tel.
Co. v. WorldCom Techs., Inc., 157 F.3d 500, 503 (7th Cir. 1998). When the party
opposing the motion for a preliminary injunction is a political 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.
ARGUMENT

I. Until the Supreme Court Addresses the Constitutionality of
Traditional Marriage Definitions, Injunctive Relief of Any Type
Against Such Laws Is Inappropriate

Indianas traditional definition of marriage merely governs the terms of
governmental regulation and benefits; it does not interfere with private conduct.

12
Accordingly, this constitutional challenge to that longstanding definition is
fundamentally unsuited to preliminary injunctive relief. There is no cognizable
irreparable harm caused by the traditional definition of marriagethe only
meaning of marriage that has ever existed in Indianawhile the parties await a
decision on the merits of this case.
A. In challenges to traditional marriage definitions, courts
around the Nation, including the Supreme Court, have ruled
that injunctions are not appropriate prior to final appellate
resolution of the constitutionality of such definitions

On January 6, 2014, the Supreme Court 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 Utahs 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 by the Supreme
Court, 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.
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 full effect. Wolf v.
Walker, No. 14-cv-64-bbc, 2014 WL 2693963, at *6 (W.D. Wis. June 13, 2014)
([S]ince [Kitchen], every statewide order enjoining the enforcement of a ban on
same-sex marriage has been stayed, either by the district court or the court of

13
appeals, at least when the state requested a stay.). The thrust of these cases is
difficult 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.
B. Preliminary injunctive relief is inappropriate because
Plaintiffs have not asserted any legally cognizable irreparable
harm traceable to any Defendant

According to the district court, preliminary injunctive relief is appropriate in
this case because Indianas non-recognition statute harms the Plaintiffs in
numerous tangible and intangible ways[.] Short App. 5. Specifically, the district
court concluded that Indiana Code 31-11-1-1 harms Quasney and Sandler by: (1)
denying them the dignity of marital status, id.; (2) causing Niki to drive to
Illinois where her marriage will be recognized in order to receive medical care, id.
at 5, 11; (3) denying Quasney a particular form of death certificate, id. at 11; and (4)
failing to recognize the couples Massachusetts marriage and thus causing them
constitutional harm, id. at 10-11. None of these alleged harms, however, is
sufficient to justify preliminary injunctive relief.
1. To begin, perception of slight to ones dignity is a type of psychological
harm not cognizable under Article III. The district court held that pass[ing] away
without enjoying the dignity that official marriage status confers constitutes
concrete, tangible injuries that are fairly traceable to Defendants and can be
remedied by a preliminary injunction. Short App. 11-12. But in Steel Company v.

14
Citizens for a Better Environment, 523 U.S. 83 (1998), the Court rejected this very
theory for relief, stating that psychic satisfaction is not an acceptable Article III
remedy because it does not redress a cognizable Article III injury. Id. at 107; see
also Valley Forge Christian College v. Americans United for Separation of Church &
State, Inc., 454 U.S. 464, 485-86 (1982) ([P]sychological 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.).
This Court, too, has denied relief based on a perceived slight, or a feeling of
exclusion[.] See, e.g., Freedom from Religion Found., Inc. v. Obama, 641 F.3d 803,
806-07 (7th Cir. 2011) ([H]urt feelings differ from legal injury.) In Harris v. City
of Zion, 927 F.2d 1401 (7th Cir. 1991), it held that [t]he requirement that the
plaintiff allege an injury-in-fact, whether economic or noneconomic, 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. Id. at 1405;
see also Gonzales v. North Twp. of Lake Cnty., 4 F.3d 1412, 1416 (7th Cir. 1993)
(Offense to moral . . . sensitivities does not constitute an injury in fact and is
insufficient to confer standing.).
Here, aside from the particular death certificate they seek, the Quasney-
Sandler couple alleges no unequal treatment by any Defendant, so their alleged
dignitary harms are not cognizable under Article IIIlet alone sufficient to warrant
injunctive relief. Article III standing to seek an injunction respecting the death

15
certificate does not equate with standing to seek a broader injunction vaguely
demanding unspecified recognition of their marriage. As the Supreme Court has
plainly held, standing rights are not dispensed in gross, but must be evaluated with
respect to each claim for relief. Davis v. FEC, 554 U.S. 724, 734 (2008).
2. Next, no Defendant even remotely causes Quasney to seek medical
care in Illinois rather than at a local hospital. Quasneys allegations on the subject
blame local hospital personnelwho would not afford her the family rate at their
health clubnot any Defendant. App. 53-54. The hospitals decision to base its
health club family rate on Indianas definition of marriage is its own doing and not
a necessary consequence of Indiana law, much less of any actions or omissions by
any Defendant.
Defendants do not control Indiana hospitals and cannot require personnel at
those hospitals to accord recognition to Quasney and Sandler as a married couple,
so there is nothing they can do to address the situation. Indeed, there is no reason
to believe that Quasney even benefits from the present injunction in relation to her
careshe has never asserted that, with an injunction in hand, she has sought
treatment locally rather than by driving to Illinois. Quasneys decision to seek
medical treatment in Illinois does not constitute Article III injury that justifies
federal jurisdiction, much less preliminary injunctive relief, because it has no direct
connection to these Defendants or the Indiana traditional marriage definition.
3. Quasney also claims she will be injured if she passes away before
conclusion of the litigation and her death certificate lists her as unmarried. A

16
preliminary injunction respecting Quasneys death certificate is inappropriate,
however, because any harm would not be irreparable. As the declaration of Hilari
A. Sautbine, a staff attorney for the Indiana State Department of Health, makes
clear, a certificate of death can be amended at the request of any interested person.
App. 69. Any refusal to honor such a request is subject to legal action in state court.
Id. at 69-70. If it later turns out that Quasneys out-of-state same-sex marriage is
entitled to recognition in Indiana, her certificate of deathwhich is an electronic
recordcould easily be corrected. Accordingly, there is no likely irreparable harm
with respect to the accuracy of the certificate of death itself as a permanent record.
Quasney claims to suffer cognizable harm remediable by an injunction based
on her knowledge of what her death certificate will say, id. at 55, but that claim
fails as well. This is nothing more than an injunction targeting psychological harm,
as there is no present unequal treatment to remedy. The possibility of future
unequal treatment can justify a preliminary injunction only where the future harm
could not adequately be redressed following judgment, which is not the case here.
Furthermore, even with a preliminary injunction governing her death
certificate in place, Quasney cannot know anything that would assuage any
perceived insults to her dignity. She claims to suffer indignity knowing that
Indiana does not recognize her marriage or afford it equal status to the marriages
of opposite-sex couples. Id. It is hard to follow how the preliminary injunction
entered by the district court addresses any such indignity. All Quasney knows is
that a district court has ordered the State to do something respecting her death

17
certificate when she passes away. At present she cannot know whether that
action will actually occur, because of course she may outlive the litigation, or, if
sadly she does not, the death certificate may ultimately be changed to show her as
unmarried if Defendants prevail in the end, even if it lists her as married for a time
by dint of a federal judges decree.
So, with a preliminary injunction, Quasney cannot know what her death
certificate will say permanently. All she can know is that her death certificate will
permanently list her as married if and only if her legal position ultimately carries
the day. Neither that knowledge, nor the likelihood that her position will prevail on
the merits, can be affected by the issuance of a preliminary injunction. Accordingly,
the rationale for the preliminary injunction is reduced to circularity: A preliminary
injunction was warranted only because it gave Quasney the satisfaction of knowing
that a preliminary injunction was issued.
It is hard to imagine a more existentially slippery form of preliminary relief
or one less justified by Rule 65 and case law.
4. The district courts final ground for injunctive reliefthe alleged
violation of the Quasney-Sandler couples constitutional rightsis also an
insufficient basis for a preliminary injunction in this case. Ongoing violations of
constitutional rights can constitute irreparable harm justifying an injunction only
where the defendants are actually responsible for such ongoing violations. See
Preston v. Thompson, 589 F.2d 300, 301 (7th Cir. 1978) (upholding preliminary
injunction requiring prison officials to provide two showers a week to all inmates

18
and a daily hour of yard recreation to certain other inmates in order to remedy due
process violation).
Here, no current cognizable injuries suffered by Quasney and Sandler are
traceable to any Defendant. Nothing that Defendants have said or done has caused
Quasney to seek treatment in Illinois rather than Indiana, or caused any of the
other tangible or intangible harms that Quasney and Sandler allege. Nor can any
of the Defendants take or forego any action that can restore their dignity. See
Sevcik v. Sandoval, 911 F. Supp. 2d 996, 1018 (D. Nev. 2012) (explaining that [a]ny
stigma arising out of the States refusal to recognize same-sex relationships as
marriages simply cannot be removed by judicial decree).
The district court stated that a preliminary injunction enjoining Defendants
from enforcing the non-recognition statute against Plaintiffs will . . . redress their
claimed injury. Short App. 5. But no Defendant has ever enforced the non-
recognition statute against Quasney and Sandleror against anyone else, for that
matter. The statutes cited by the district court in support of this point have nothing
to do with Quasney. Indiana Code 4-6-1-6 pertains to the Attorney Generals
general duties to attend to litigation, but that has no bearing on Quasney (or on any
other plaintiff, for that matter). See Sherman v. Cmty. Consol. Sch. Dist. 21 of
Wheeling Twp., 980 F.2d 437, 441 (7th Cir. 1992) (rejecting lawsuit against a state
Attorney General based only on his general duty to enforce the laws of the State).
Indiana Code 31-11-4-2 precludes clerks from issuing marriage licenses in
contravention of Section 31-11-1-1, but Quasney and Sandler do not seek a marriage

19
license. Thus, enjoining Defendants cannot plausibly redress any constitutional
injuries to them.
* * *
Quasney and Sandler have not demonstrated sufficient cognizable harm to
justify a preliminary injunction. An injunction against these Defendants seeking to
assuage the couples asserted injuries, without any connection to actions or duties of
the Defendants, should be reversed.
II. Plaintiffs Due Process and Equal Protection Same-Sex Marriage
Claims Fail on the Merits

The district court concluded that the Quasney-Sandler couples due process
and equal protection claims are likely to succeed, implicitly declaring that the wave
of persuasive cases supporting Plaintiffs position permits no dissent. Short App.
7-8 (stating that the court is not persuaded that . . . Indianas anti-recognition law
will suffer a different fate than those around the country and citing recent same-
sex marriage cases decided on due process grounds). Any prognostication in favor of
Plaintiffs is premature, however. The only federal appellate case on point upheld
Nebraskas traditional marriage definition. See Citizens for Equal Prot. v. Bruning,
455 F.3d 859, 871 (8th Cir. 2006). This Court should likewise uphold Indianas
traditional marriage definition on the merits.
A. For state government, marriage is regulation

Fundamentally, as far as state government is concerned, marriage is a
regulatory scheme. Government has a compelling interest in making sure children
are properly cared for, so it uses marriage as a way to attract and regulate those

20
whose sexual intercourse produces children, with the objective that they will stay
together and raise the children in tandem. A demand for same-sex marriage as a
matter of constitutional right is about extending that carrot-and-stick regulation,
not about demanding that government affirm homosexual behavior just for the sake
of doing so.
Some legal benefits of marriagethe regulatory carrotsare exclusive to
that institution (meaning they cannot be replicated by private agreement). They
include, among other things, testimonial privileges (Ind. Code 34-46-3-1(4)), joint
tax filing (Ind. Code 6-3-4-2), the right to receive a share of a deceased spouses
estate even against the spouses will (Ind. Code 29-1-2-1), and the presumption
that fathers are the legal parents of children born to their marriages (Ind. Code
31-14-7-1).
But many exclusive protections of marriage carry the heavy hand of
government and constitute regulatory sticks. These include not only the
aforementioned presumption of parentage, but also spousal support obligations
enforceable both by civil remedy (Ind. Code 31-16-14-1, -4) and criminal sanction
(Ind. Code 35-46-1-6); joint liability for unpaid debts (Bartrom v. Adjustment
Bureau, Inc., 618 N.E.2d 1, 8 (Ind. 1993)); an adulterous spouses forfeiture of a
share in the estate or trust of a deceased spouse (Ind. Code 29-1-2-14; Ind. Code
30-4-2.1-9); prohibition on entering into another marriage absent legal dissolution
(Ind. Code 31-11-1-3); requirement of a judicial decree according to statutory
standards and protocols to effectuate legal dissolution (Ind. Code 31-15-2-3, -16);

21
and the just and reasonable division of all property upon legal dissolution,
regardless of who acquired the property or when (Ind. Code 31-15-7-4).
As the Court considers claims of constitutional right, it is important that it
not lose sight of the essential regulatory nature of government-conferred marriage.
B. No substantive constitutional right to same-sex marriage exists

While the Supreme Court has said that [m]arriage is one of the basic civil
rights of man, fundamental to our very existence and survival, Loving v. Virginia,
388 U.S. 1, 12 (1967) (internal quotation marks omitted), neither it (nor this Court)
has held that the constitutional right to marry encompasses same-sex marriages.
Cf. Richard A. Posner, Sex and Reason 312-13 (1992) ([B]ut of course the Court [in
Loving] was thinking of heterosexual marriage.). To the contrary, in Baker v.
Nelson, 409 U.S. 810 (1972), decided just five years after Loving, the Court
dismissed for want of a substantial federal questiona decision on the meritsa
case presenting the right to same-sex marriage as both a matter of due process and
equal protection. App. 75.
The Supreme Courts decision in United States v. Windsor, 133 S. Ct. 2675
(2013), striking down Congresss decision to confine marriage to opposite-sex
couples for federal purposes even if a same-sex marriage was recognized by a state,
does not undermine Baker. First, simply as a matter of doctrinal contours, Windsor
is self-limited. In no uncertain terms, the Windsor majority forcefully stated that
[t]his opinion and its holding are confined to [New Yorks] lawful marriages. Id. at

22
2696. It is therefore improper to extrapolate from this opinion any rule that
affects any other States marriage laws.
Nor, even aside from that disclaimer, does the logic of Windsor imply that
traditional state marriage laws are invalid. At the time Congress enacted Section 3
of the federal Defense of Marriage Act (DOMA) in 1996, the federal government
largely treated all marriages recognized by a State as valid. When States started
recognizing same-sex marriages beginning in 2003, that was no longer true because
DOMA limited federal recognition to opposite-sex couples. Congresss decision to
change the terms for accepting state marriagesnot the baseline definition of
marriage itselfis what troubled the Court. See id. at 2693-94. Thus, the Court
invalidated Section 3 of DOMA as having the purpose and effect to disparage and
to injure those whom the State, by its marriage laws, sought to protect in
personhood and dignity. Id. at 2696 (emphasis added). It did so principally
because Section 3 of DOMA was an unusual deviation from the usual tradition of
recognizing and accepting state definitions of marriage . . . . Id. at 2693 (emphases
added). It was critical to the Courts analysis that New York had previously granted
marital interests that DOMA then threatened. Id. at 2689.
While the Constitution gives its blessing to New York to recognize out-of-
jurisdiction same-sex marriages, id. at 2692 (explaining that New Yorks 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

23
constant interaction with each other), it is a considerable leap to conclude that
Windsor establishes a singular vision of a fundamental right to marriage that must
be respected by all States. See Richard Posner, Should There Be Same-Sex
Marriage? And If So, Who Should Decide? 95 Mich. L. Rev. 1578, 1579 (1997)
(finding unconvincing the argument that the courts in the name of the
Constitution should force acceptance of same-sex marriage on all the states at
once). Traditional state marriage definitions are, as Windsor amply affirms, the
usual course of business. Id. at 2691.
Supreme Court precedent more broadly 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-sex couples. Fundamental rights are
those that are objectively, deeply rooted in this Nations 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. No separate fundamental right to same-sex
marriage is deeply rooted in this Nations history and tradition . . . and implicit in

24
the concept of ordered liberty. Glucksberg, 521 U.S. at 720-21. See also Posner,
Should There Be Same-Sex Marriage?, supra, at 1579 ([H]omosexual marriage has
nowhere been a common practice, even in societies in which homosexuality was
common.).
Barely a decade ago, in 2003, Massachusetts became the first State to extend
the definition of marriage to same-sex couples. Goodridge v. Dept of Pub. Health,
798 N.E.2d 941, 969 (Mass. 2003). Other state supreme courts followed suit, see
Kerrigan v. Commr of Pub. Health, 957 A.2d 407, 482 (Conn. 2008), Varnum v.
Brien, 763 N.W.2d 862, 906 (Iowa 2009), but only twelve States and the District of
Columbia have extended marriage to same-sex unions legislatively. Same-sex
marriage cannot be transformed into a fundamental right by repackaging marriage
as the freedom to select the partner of ones choice, Doc. 36 at 8, because that
definition leaves out the only part of the asserted right that matters: that the
claimants seek this right as same-sex couples.
C. Due process and equal protection principles do not compel
recognition of other States same-sex marriages

The district court found that, as a general matter, Indiana recognizes out-
of-state marriages but does not so recognize out-of-state same-sex marriages. Short
App. 9. From this observation alone it concluded that Plaintiffs were likely to
succeed on their constitutional claim for interstate recognition. Id. Indianas
treatment of other States marriages, however, turns on public policy considerations
and, more importantly, a common set of assumptions as to what constitutes a
marriage. The district courts analysis that whether a State must recognize

25
interstate same-sex marriages depends on that States idiosyncratic case law
addressing other marriagesrather than national constitutional normswould
deprive States of equal footing under the Constitution.
Ultimately, 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 a marriage contravenes
public policy

To begin, there is no federal due process right to have a license issued in one
Statewhether for professional, weapons, driving, or marriage purposestreated
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 anothers law licenses, medical
licenses, concealed-carry gun permits, drivers licenses, and notary public
commissions, just to name a few.
3

3
Even if an out-of-state marriage is viewed as a purely private contractwhich it is not
state and federal constitutions permit rejection of out-of-state contracts that contravene

26
A 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, a right to
interstate marriage recognition 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. This is plainly
contrary not only to the usual constitutional rule, but also to the Courts specific
observations about state marriage law prerogatives in Windsor, 133 S. Ct. at 2689-
91.
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 Nations
history, legal traditions, and practices, and indeed dates back before the

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.).

27
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).
Such public policy exceptions exist across the country. See, e.g., Cook v. Cook,
104 P.3d 857, 860 (Ariz. Ct. App. 2005) ([W]e have long recognized that the
legislature of this state, notwithstanding the general rule, may declare what
marriages are valid (or void) in Arizona even if the marriage pertains to persons
who were in good faith domiciled in the state where the ceremony was performed
and the marriage is valid in that state.) (internal quotations omitted); Kelderhaus
v. Kelderhaus, 467 S.E.2d 303, 304-05 (Va. Ct. App. 1996) (holding that a bigamous
marriage entered into in California is void as a matter of law because it is
contrary to the laws of Virginia and [its] public policy) (internal citations and
quotations omitted); People v. Ezeonu, 588 N.Y.S.2d 116, 117-18 (N.Y. Crim. Div.
1992) (holding that bigamous marriage entered into in Nigeria is repugnant to
public policy of New York and therefore void); Hesington v. Estate of Hesington, 640
S.W.2d 824, 826-27 (Mo. Ct. App. 1982) (denying recognition of a common-law
marriage consummated on a temporary trip to another State); Catalano v.
Catalano, 170 A.2d 726, 728-29 (Conn. 1961) (refusing to recognize uncle-niece
marriage lawfully contracted in Italy); Bucca v. State, 128 A.2d 506, 510 (N.J.
Super. Ct. Ch. Div. 1957) (same); Osoinach v. Watkins, 180 So. 577, 581 (Ala. 1938)
(refusing to recognize a marriage lawfully contracted in Georgia between a man and

28
his uncles widow); 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 any 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 Indianas marriage lawsin terms equally
applicable to both same-sex and opposite-sex couples. Indiana Code 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

(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 what is apparently the only
Indiana Supreme Court decision that addresses an out-of-jurisdiction marriage that

29
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 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 principlethat 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.
The district court cited one decision from the Indiana Court of Appeals that
gave retrospective effect to a marriage from another jurisdiction that could not have
been undertaken in Indiana, Mason v. Mason, 775 N.E.2d 706, 709 (Ind. Ct. App.

30
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.
Besides, one fairly recent Indiana intermediate court decisionMasoncannot
trump earlier decisions of the Indiana Supreme Court regarding the circumstances
in which Indiana will recognize out-of-state marriages.
The fundamental issue, moreover, is not about the particulars of Indiana
marriage-recognition precedents, but about whether Indianas 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. Ample case law
from around the country, only a small fraction of which is cited above, demonstrates
that it is. 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
other states but another in Indiana when it comes to out-of-state recognition of
marriages that contravene state public policy. See, e.g., King v. Mullins, 171 U.S.
404, 422 (1898) (The due process of law enjoined by the fourteenth amendment
must mean the same thing in all the states.); Adarand Constructors, Inc. v. Pena,
515 U.S. 200, 231-32 (1995) (opinion of OConnor, J.) (explaining that the
Constitution imposes upon federal, state, and local governmental actors the same

31
obligation to respect the personal right to equal protection of the laws).
2. Indianas refusal to recognize the Quasney-Sandler
marriage does not contravene the Equal Protection
Clause

The district court concluded that Indiana likely violates the Quasney-Sandler
couples equal protection rights because out-of-state opposite-sex marriages are
generally afforded recognition but out-of-state same-sex marriages are not. Short
App. 9. First, however, it is not clear Quasney and Sandler have standing to assert
this claim. Quasney and Sandler were married in Massachusetts, but were not at
the time residents of Massachusetts; they were residents of Indiana. App. 9.
Knowing that they could not be married in Indiana, they decided to get married
elsewhere, which runs afoul of Indiana Code 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 Indianas 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.
Regardless, for the reasons described in Part II.D.1., infra, the proper level of
scrutiny here is rational basis, and to the extent out-of-state opposite-sex marriages

32
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 the
vast majority 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
who (1) wish to marry; (2) would not be authorized to marry in Indiana; (3) live in
(or find) a State authorizing them to marry, and (4) return or relocate to Indiana, is
self-evidently quite small. Government no longer encounters many first cousins,
minor teenagers, or mentally disabled individuals seeking marriage. Accordingly,
even if Indianas general recognition of out-of-state opposite-sex marriages results
in occasional retrospective recognition of a marriage that contravenes Indianas
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 Indianas 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

33
states and District of Columbia that provide same-sex marriage), return to Indiana
and demand prospective recognition, thereby rendering Indianas 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 States
laws. For Indiana, marriage is a regulatory scheme designed to encourage
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 elsesomething that cannot be reconciled with Indianas 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
indeed, compellinginterest in maintaining the integrity of its fundamental
rationale for civil marriage rather than letting it be redefined by other States.
***
Fundamentally, the constitutional validity of Indianas 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

34
definition and thereby refuse to provide for same-sex marriages, it can also refuse to
recognize same-sex marriages from other States.
D. Indianas traditional marriage definition is constitutional
As established above, there is no fundamental right to same-sex marriage
and no fundamental right to interstate marriage recognition. Moreover, Indianas
traditional marriage definition does not draw classifications based on any suspect or
quasi-suspect classes. Accordingly, both for purposes of due process analysis and
equal protection analysis, that definition is valid as long as it is rationally related to
a legitimate government purpose. Quite plainly, it is related to the compelling state
government need to encourage potentially procreative couples to stay together for
the sake of raising children that may result from their sexual intercourse. This
interest does not apply to same-sex couples, so the State need not extend marriage
regulation to such couples.
1. Limiting marriage regulation to the union of a man and a
woman does not implicate a suspect (or quasi-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.


35
a. 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 also, e.g., Bishop v. United States ex rel.
Holder, 962 F. Supp. 2d 1252, 1286 (N.D. Okla. 2014); Jackson v. Abercrombie, 884
F. Supp. 2d 1065, 1098-99 (D. Haw. 2012) (listing cases); Richard Posner, Should
There Be Same-Sex Marriage? And If So, Who Should Decide?, 95 Mich. L. Rev.
1578, 1582 (1997) (There is no legal barrier to homosexuals marrying persons of
the opposite sex; in this respect there is already perfect formal equality between
homosexuals and heterosexuals.).
4

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

4
Judge Posners observation is supported by the record in this case, which demonstrates
that Indianas traditional marriage laws permit all Hoosiers to marry, including Plaintiffs
Bonnie Everly, Linda Judkins, and Dawn Carver. See Doc. Nos. 36-3 at 6, 36-4 at 5,
and 36-6 at 6.

36
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 Indianas traditional marriage definition.
b. 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. The prior opposite-sex marriages of Plaintiffs Everly, Judkins,
and Carver are instructive in this regard. See Doc. Nos. 36-3 at 6, 36-4 at 5, and
36-6 at 6. They demonstrate that Indianas 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. Nor do Indianas marriage laws
negatively affect only homosexuals, as Indiana law also burdens those interested in
other non-traditional marriages. If marriage law must be scrutinized for impact on
everyones ability to marry based on their sexual preferences, such a rule would
presumably set the stage for claims for plural marriages and marriages within
prohibited lines of consanguinity.
While traditional marriage laws impact heterosexuals and homosexuals
differently, they do not create classifications based 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

37
suspect class is insufficient to justify strict scrutiny absent evidence of
discriminatory purpose). 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. Admr of Mass. v.
Feeney, 442 U.S. 256, 279 (1979) (emphasis added) (internal quotation marks
omitted).
Here, deducing any such discriminatory intent (unaccompanied by any actual
statutory classification) is both unsupported and highly anachronistic, as Indiana
has never licensed or recognized same-sex marriages. Modern-day accusations of
homosexual animus quite plainly have no historical purchase. There is no
plausible argument that the traditional definition of marriage was invented as a
way to discriminate against homosexuals. Indeed, in Lawrence, the Supreme 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. 558, 568 (2003).
Implicit in this statement is an acknowledgement that a traditional marriage
definition is not a law[] directed at homosexual conduct as a distinct matter.
Again, there is 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

38
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 historical understanding and purposes of
marriage.
c. Homosexuals do not constitute a suspect class
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.
Secy of the Dept 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). But see SmithKline Beecham
Corp. v. Abbott Labs., 740 F.3d 471, 481 (9th Cir. 2014) (applying heightened

39
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 v. Evans, 517 U.S. 620, 631-
32 (1996); Lawrence, 539 U.S. at 578; Windsor, 133 S. Ct. at 2696. In Windsor the
Court invalidated Section 3 of DOMA because no legitimate purposea hallmark
of rational basis reviewjustified the law. Id. at 2696.
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. City
of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 445 (1985). Just this winter
Indianas 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 Marriage Ban Wont 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-

40
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 its the fastest moving civil rights movement in U.S. history.)
National success persuading voters and lawmakers to provide for same-sex
marriagethe very issue over which plaintiffs claim protected statusconfirms 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). Even as far back as 1997 it was apparent that same-sex marriage
rights were sought not by the disenfranchised but by an educated, articulate, and
increasingly politically effective minority that is seeking to bypass the normal
political process . . . . Richard Posner, Should There Be Same-Sex Marriage? And
If So, Who Should Decide?, 95 Mich. L. Rev. 1578, 1584 (1997). Accordingly, the
label suspect class or even quasi-suspect class is a poor fit in this circumstance.
See Romer, 517 U.S. at 640 n.1 (Scalia, J., dissenting) (pointing out that the Court
implicitly rejected [plaintiffs] argument that homosexuals constitute a suspect or
quasi-suspect class).

41
2. 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 States perspective, not the
challengers 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 governments underlying objectives. Johnson v. Robison, 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 statutes 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 States decision to
act on the basis of those differences does not give 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).
Accordingly, the proper constitutional question has nothing to do with
justifications for excluding access to marriage and its benefitsan inquiry that
inherently presupposes the existence of a right to such access and thereby

42
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,
recognize, or regulate same-sex marriages than it has to justify refusing to regulate
any group. It need only articulate reasons to confer benefits on opposite-sex couples
that do not apply to same-sex couples. The exclusive capacity and tendency of
heterosexual intercourse to produce children, and the States 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

43
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.
5

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 likelihood that
both biological parents will nurture and raise the children they beget.
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, the State does not necessarily have the same need to

5
See Citizens for Equal Protection v. Bruning, 455 F.3d 859, 867 (8th Cir. 2006); Lofton v.
Secy of the Dept 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), affd 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),
affd 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).

44
provide such parents with the incentives and regulatory restraints 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. 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 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

45
simply to prove that the regulatory 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 together, so it is fair
to limit marriage regulation 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 States interest in ensuring that children are properly cared for may take many
forms, the fundamental one being traditional marriage regulation. 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
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

46
traditional marriage as a regulatory scheme 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.
b. Many courts have rejected the theory that
traditional marriage is about homosexual animus

Plaintiffs have posited that traditional marriage regulation is somehow about
harming homosexuals and promoting gender stereotypes. Doc. No. 36 at 12, 15-16.
They complain about the stigma that States create when they regulate opposite-
sex marriages but not same-sex marriages. Id. at 23-24. But as Justice OConnor
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) (OConnor, J., concurring).
Traditional marriage regulation is not about sending a message, App. 14,
concerning homosexuality or sexual roles. It is about biology, about regulating
sexual relationships that create children that must be cared for. The plurality in
Hernandez, 855 N.E.2d at 8, observed that [u]ntil 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 (Arizonas

47
prohibition of same-sex marriages furthers a proper 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.
3. No other limiting principle for marriage is apparent

Neither Plaintiffs nor judicial decisions invalidating traditional marriage
definitions have offered meaningful alternative rationales or definitions. At the
hearing on the motions for preliminary injunction and summary judgment, the
district court directly asked counsel for Plaintiffs what alternative theory of
marriage she would propose. The response was telling. Rather than offer a reason
why the government would recognize and regulate marriage if not for the sake of
encouraging biological parents to remain together for children produced of their
sexual union, counsel stated as follows: [W]hile all of us who are married might put
it slightly differently, we might have different examples to use to show what
marriage means to us and why it is so important to us, I think that theres
something timeless and universal about our experience in choosing to marry that
one unique and irreplaceable person who completes us. App. 90. In other words,
counsel offered reasons why individuals personally enter into marriages, but no
reason why the State licenses, recognizes, and regulates sexual relationships as
marriages.

48
Courts have done no better. The court in Bostic v. Rainey, 970 F. Supp. 2d
456 (E.D. Va. 2014), for example, 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. Id. at 472. 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. 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 and, oddly, regulation.
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

49
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).
But none of these social changeswhether one views them as good, bad, or
inconsequentialjustifies regulation of same-sex couples as marriages. Surely no
one argues that the liberty of adults to engage freely in consensual sex means
States must also acknowledge and regulate each individuals sexuality; indeed,
Lawrence v. Texas, 539 U.S. 558, 578 (2003), holds to the contrary. Nor, then, does
the governments 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 regulation. 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 that justifies
regulation as marriage is the natural capacity of their sexual relationships to
produce children unintentionally. This natural capacity gives rise to the states
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 . . . .).

50
The ability of same-sex couples to raise children together is not the same
thing. The primary rationale for traditional marriage regulation is responsible
procreation, not responsible parenting more generally. Hence, what is missing with
same-sex couples is societys 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 that demand a regulatory response.
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 regulation 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 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 parentageand, hence,
marriageby any social grouping, regardless of the existence of a sexual

51
relationship. Sisters, brothers, platonic friends, groups of three or moreall 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 regulation 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 regulatory 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.
Marriage attracts and then regulates couples whose sexual conduct may create
children in order to ameliorate the burdens society ultimately bears when

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 rightsnot the actual conferral of
parental rights on any particular groupingthat 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.


52
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 and regulating them.
CONCLUSION
For the foregoing reasons, the Preliminary Injunction should be REVERSED
and VACATED.

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

s/ Darren J. Murphy
Darren J. Murphy
694 Logan St.
Tel: (317) 773-4212
Fax: (317) 776-2369
dmurphy@ori.net
Respectfully submitted,

Gregory F. Zoeller
s/ Thomas M. Fisher
Thomas M. Fisher
Solicitor General
Tel: (317) 232-6255
Fax: (317) 232-7979
VanNess II, M.D.

s/ Nancy Moore Tiller
Nancy Moore Tiller
Tel: (219) 662-2300
Fax: (219) 662-8739
nmt@tillerlegal.com


53

CERTIFICATE OF WORD COUNT

I verify that this brief, including footnotes and issues presented, but
excluding certificates, contains 13,454 words according to the word-count function of
Microsoft Word, the word-processing program used to prepare this brief.

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

54

I hereby certify that on June 20, 2014, I electronically filed the foregoing with
the Clerk of the Court for the United States Court of Appeals for the Seventh
Circuit by using the CM/ECF system, which sent notification of such filing to the
following:

Barbara J. Baird

Paul D. Castillo
Camilla B. Taylor
Christopher R. Clark
Lambda Legal Defense & Education
Fund, Inc.
pcastillo@lambdalegal.org
cclark@lambdalegal.org

Robert V. Clutter

Darren J. Murphy
dmurphy@ori.net

Jordan Heinz
Brent Phillip Ray

Nancy Moore Tiller
nmt@tillerlegal.com

Elizabeth A. Knight
Porter County Administrative
Center

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

Office of the Indiana Attorney General
Indiana Government Center South, Fifth Floor
Telephone: (317) 232-6255
Facsimile: (317) 232-7979

55
REQUIRED SHORT APPENDIX

Pursuant to Circuit Rule 30, Appellants submit the following as their
Required Short Appendix. Appellants Short Appendix contains all of the materials
required under Circuit Rule 30(a).

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

1

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

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

Plaintiffs,

vs.

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

Defendants.

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1:14-cv-00355-RLY-TAB

ENTRY ON PLAINTIFFS MOTION FOR A PRELIMINARY INJUNCTION
SHORT APPENDIX 1
2

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

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

balance the harm to the moving party if the injunction is denied against the harm to the
nonmoving party if the injunction is granted. Id. In so doing, the court utilizes what is
known as the sliding scale approach; the more likely the [movant] will succeed on the
merits, the less the balance of irreparable harms need favor the [movants] position. Id.
Additionally, this stage requires the court to consider any effects that granting or
denying the preliminary injunction would have on nonparties (something courts have
termed the public interest). Id.
III. Discussion
Before reaching the merits, Defendants pose two challenges that the court must
initially address. First, they argue the Plaintiffs, Niki and Amy, lack standing to assert
preliminary injunctive relief. Second, in light of the Supreme Courts recent decision in
Herbert v. Kitchen, 134 S.Ct. 893 (2013), they argue preliminary injunctive relief is
inappropriate.
A. Standing
To have standing a plaintiff must present an injury that is concrete, particularized,
and actual or imminent, fairly traceable to the defendants challenged behavior, and likely
to be redressed by a favorable ruling. Davis v. Fed. Election Commn, 554 U.S. 724,
733 (2008). Defendants argue that the harms alleged by Plaintiffs as arising from
Indianas non-recognition statute are not concrete and particularized, nor fairly traceable
to them. Thus, according to Defendants, a preliminary injunction cannot favorably
address Plaintiffs harms.
SHORT APPENDIX 4
5

The Defendants in this case, the Attorney General; the County Clerks from Boone,
Porter, Lake, and Hamilton Counties; and the Commissioner of the Indiana Department
of Health, are statutorily required to enforce Indiana Code 31-11-1-1 by not
recognizing the marriage. See Ind. Code 4-6-1-6; see also Ind. Code 31-11-4-2; see
also Ind. Code 16-37-1-3 and Ind. Code 16-37-1-3.1. The injury to Plaintiffs
resulting from Indianas non-recognition statute harms the Plaintiffs in numerous tangible
and intangible ways, including causing Niki to drive to Illinois where her marriage will
be recognized in order to receive medical care and the dignity of marital status. Thus, a
preliminary injunction enjoining Defendants from enforcing the non-recognition statute
against Plaintiffs will, therefore, redress their claimed injury. Therefore, the court finds
that the Plaintiffs have standing to seek a preliminary injunction.
B. Is preliminary injunctive relief appropriate?
Citing Herbert v. Kitchen, Defendants contend that Plaintiffs demands for
preliminary relief are inappropriate under Federal Rule of Civil Procedure 65. Herbert v.
Kitchen, 134 S.Ct. 893 (Jan. 6, 2013). In that case, the Supreme Court issued a stay of
the District of Utahs permanent injunction requiring officials to issue marriage licenses
to same-sex couples and to recognize all same-sex marriages performed in other states.
Since that ruling, all decisions by federal district courts have been stayed while the
requisite preliminary and permanent injunctions are appealed to the respective circuit
courts.
Nevertheless, the court does not interpret the fact that the other federal courts are
staying injunctions to mean that preliminary injunctive relief is inappropriate in this case.
SHORT APPENDIX 5
6

Nor does the court agree that a stay by the Supreme Court of such a broad injunction
conclusively determines that the Plaintiffs here are not entitled to the narrow form of
injunctive relief they seek. Additionally, despite these stays, no court has found that
preliminary injunctive relief is inappropriate simply because a stay may be issued.
Therefore, the court finds that preliminary injunctive relief is still appropriate in this
matter and proceeds to that analysis.
C. Is there a likelihood of success on the merits?
Plaintiffs argue that Indianas statute prohibiting the recognition of same-sex
marriages and in fact, voiding such marriages, violates the Fourteenth Amendments Due
Process Clause and Equal Protection Clause.
1. Equal Protection Clause
Plaintiffs argue that Indianas non-recognition statute, codified at Indiana Code
31-11-1-1(b), which provides that their state-sanctioned out-of-state marriage will not be
recognized in Indiana and is indeed, void in Indiana, deprives them of equal protection.
The Equal Protection Clause commands that no state shall deny to any person within its
jurisdiction the equal protection of the laws. U.S. CONST. amend. XIV, 1.
The theory underlying Plaintiffs claim is the notion that Indiana denies same-sex
couples the same equal rights, responsibilities and benefits that heterosexual couples
receive through traditional marriage. According to Defendants, the States interest in
traditional marriage is to encourage heterosexual couples to stay together for the sake of
any unintended children that their sexual relationship may produce, and to raise those
children in a household with both male and female role models. The State views
SHORT APPENDIX 6
7

heterosexual couples who, for whatever reason, are not capable of producing children, to
further the states interest in being good male-female role models.
In the wake of the Supreme Courts decision in United States v. Windsor, 134
S.Ct. 2675 (2013), district courts from around the country have rejected the idea that a
states non-recognition statute bears a rational relation to the states interest in traditional
marriage as a means to foster responsible procreation and rear those children in a stable
male-female household. See Tanco, 2014 WL 997525 at * 6; see also Bishop v. U.S. ex
rel. Holder, 962 F. Supp. 2d 1252 (N.D. Okla. 2014) (finding there is no rational link
between excluding same-sex marriages and steering naturally procreative
relationships into marriage, in order to reduce the number of children born out of
wedlock and reduce economic burdens on the State); see also DeBoer v. Snyder, No.1:12-
cv-10285, 2014 WL 1100794, * 2 (E.D. Mich. Mar. 21, 2014) (noting that prohibiting
same-sex marriages does not stop [gay men and lesbian women] from forming families
and raising children). Indeed, as the court found in its prior Entry, with the wave of
persuasive cases supporting Plaintiffs position, there is a reasonable likelihood that the
Plaintiffs will prevail on the merits, even under the highly-deferential rational basis
standard of review. See Henry, 2014 WL 1418395 at ** 1-2 (noting that since the
Supreme Courts ruling in Windsor, all federal district courts have declared
unconstitutional and enjoined similar bans); see also Tanco, 2014 WL 997525 at * 6 (in
light of the rising tide of persuasive post-Windsor federal case law, it is no leap to
conclude that the plaintiffs here are likely to succeed in their challenge.) The reasons
SHORT APPENDIX 7
8

advanced by the State in support of Indianas non-recognition statute do not distinguish
this case from the district court cases cited above.
The court is not persuaded that, at this stage, Indianas anti-recognition law will
suffer a different fate than those around the country. Thus, the Plaintiffs have shown that
they have a reasonable likelihood of success on the merits of their equal protection
challenge, even under a rational basis standard of review. Therefore, the court at this
stage does not need to determine whether sexual orientation discrimination merits a
higher standard of constitutional review.
2. Due Process Clause
Plaintiffs assert that they have a due process right to not be deprived of ones
already-existing legal marriage and its attendant benefits and protections. See Obergefell
v. Wymyslo, 962 F. Supp. 2d 968, 978 (S.D. Ohio 2013) (finding that non-recognition
invokes the right not to be deprived of ones already-existing legal marriage and its
attendant benefits and protections.); see also Henry v. Himes, No. 1:14-cv-129, 2014
WL 1418395, * 9 (S.D. Ohio Apr. 14, 2014) (applying intermediate scrutiny where Ohio
is intruding into and in fact erasing the marriage relationship); see also De Leon v.
Perry, No. SA-13-CA-00982-OLG, 2014 WL 715741, ** 21-24 (W.D. Tex Feb. 26,
2014) (applying rational basis review and finding that by declaring lawful same-sex
marriages void and denying married couples the rights, responsibilities, and benefits of
marriage, Texas denies same-sex couples who have been married in other states their due
process).
SHORT APPENDIX 8
9

Defendants counter that there is no due process right to have ones marriage
recognized. According to Defendants, recognition of marriages from other states is only
a matter of comity, not a matter of right. See e.g., Sclamberg v. Sclamberg, 41 N.E.2d
801 (Ind. 1942) (recognizing parties concession that their marriage, performed in Russia,
was void under Indiana law because they were uncle and niece). Defendants again stress
that Windsor is a case merely about federalism and did not create a right under the Due
Process Clause to have ones marriage recognized.
The court found in its prior ruling that as a general rule, Indiana recognizes those
marriages performed out of state. Bolkovac v. State, 98 N.E.2d 250, 304 (Ind. 1951)
([t]he validity of a marriage depends upon the law of the place where it occurs.). This
includes recognizing marriages between first cousins despite the fact that they cannot
marry in Indiana. See Mason v. Mason, 775 N.E.2d 706, 709 (Ind. Ct. App. 2002).
Indianas non-recognition of Plaintiffs marriage is a departure from the traditional rule in
Indiana. Furthermore, the court notes that by declaring these marraiges void, the State of
Indiana may be depriving Plaintiffs of their liberty without due process of law. See e.g.
Loving v. Virginia, 388 U.S. 1, 12 (1967) (to deny this fundamental freedom on so
unsupportable a basis as the racial classification embodied in these statutes, . . . is surely
to deprive all of the States citizens of liberty without due process of law.) Therefore,
the court finds that Plaintiffs have shown some likelihood of success on this claim.
D. Are any injuries to Plaintiffs irreparable?
Irreparable harm is harm which cannot be repaired, retrieved, put down again,
atoned for . . . . [T]he injury must be of a particular nature, so that compensation in
SHORT APPENDIX 9
10

money cannot atone for it. Graham v. Med. Mut. of Ohio, 130 F.3d 293, 296 (7th Cir.
1997) (internal quotation and citation omitted). Defendants first argue that there is not
irreparable harm here, because Plaintiffs have endured these injuries for a substantial
period of time. See Celebration Intl, Inc. v. Chosum Intl, Inc., 234 F. Supp. 2d 905, 920
(S.D. Ind. 2002) (Though not dispositive, tardiness weighs against a plaintiffs claim of
irreparable harm . . . .). The court does not find that the requested relief is tardy for two
reasons: (1) there has been a recent, substantial change in the law, and (2) in June 2014,
Niki will have reached the average survival rate for her disease.
Defendants challenge the Plaintiffs claim and this courts prior finding that the
constitutional injury alleged herein is sufficient evidence of irreparable harm. In support,
Defendants rely on cases decided in other circuits. These cases are not binding on this
court, but merely persuasive. After a more thorough review of the cases in the Seventh
Circuit, the court reaffirms its conclusion that a constitutional violation, like the one
alleged here, is indeed irreparable harm for purposes of preliminary injunctive relief. See
Preston v. Thompson, 589 F.2d 300, 303 n. 3 (7th Cir. 1978) ([t]he existence of a
continuing constitutional violation constitutes proof of an irreparable harm.); see Does v.
City of Indianapolis, No. 1:06-cv-865-RLY-WTL, 2006 WL 2927598, *11 (S.D. Ind.
Oct. 5, 2006) (quoting Cohen v. Coahoma Cnty., Miss., 805 F. Supp. 398, 406 (N.D.
Miss. 1992) for the proposition that [i]t has been repeatedly recognized by federal courts
at all levels that violation of constitutional rights constitutes irreparable harm as a matter
of law.); see also Back v. Carter, 933 F. Supp. 738, 754 (N.D. Ind. 1996) (When
violations of constitutional rights are alleged, further showing of irreparable injury may
SHORT APPENDIX 10
11

not be required if what is at stake is not monetary damages. This rule is based on the
belief that equal protection rights are so fundamental to our society that any violation of
those rights causes irreparable harm.); see also Ezell v. City of Chicago, 651 F.3d 684
(7th Cir. 2011) (finding irreparable harm when Plaintiffs Second Amendment rights
were likely violated); see also Hodgkins v. Peterson, No. 1:04-cv-569-JDT-TAB, 2004
WL 1854194, * 5 (S.D. Ind. Jul. 23, 2004) (granting a preliminary injunction enjoining
enforcement of Indianapolis curfew law as it likely violated the parents due process
rights and finding that when an alleged deprivation of a constitutional right is involved,
most courts hold that no further showing of irreparable injury is necessary.)
Even if a further showing of irreparable harm is required, the court finds that
Plaintiffs have met this burden. Niki suffers irreparable harm as she drives to Illinois to
receive treatment at a hospital where her marriage will be recognized. In addition, Niki
may pass away without enjoying the dignity that official marriage status confers. See
Obergefell v. Kasich, No. 1:13-cv-501, 2013 WL 3814262, * 7 (S.D. Ohio Jul. 22, 2013)
(Dying with an incorrect death certificate that prohibits Mr. Arthur from being buried
with dignity constitutes irreparable harm. Furthermore, Mr. Arthurs harm is irreparable
because his injury is present now, while he is alive. A later decision allowing an
amendment to the death certificate cannot remediate the harm to Mr. Arthur, as he will
have passed away.); see also Gray v. Orr, (N.D. Ill. Dec. 5, 2013) (Equally, if not
more, compelling is Plaintiffs argument that without temporary relief, they will also be
deprived of enjoying less tangible but nonetheless significant personal and emotional
benefits that the dignity of official marriage status confers.). These are concrete,
SHORT APPENDIX 11
12

tangible injuries that are fairly traceable to Defendants and can be remedied by a
preliminary injunction.
E. Balance of Harms and Public Interest
Having satisfied the threshold phase of a preliminary injunction, the court now
turns to the balancing phase. Plaintiffs assert that Defendants have not suffered and will
not suffer irreparable harm from this preliminary injunction, and that the public interest is
served by a preliminary injunction because there is no interest in upholding
unconstitutional laws. Defendants counter that while they can point to no specific
instances of harm or confusion since the court granted the TRO three weeks ago, the
State is harmed in the abstract by not being able to enforce this law uniformly and against
Plaintiffs. Defendants argue that the public interest weighs in their favor because (1) the
State has a compelling interest in defining marriage and administering its own marriage
laws, and (2) the continuity of Indianas marriage laws avoids potential confusion over a
series of injunctions.
As the court has recognized before, marriage and domestic relations are
traditionally left to the states; however, the restrictions put in place by the state must
comply with the United States Constitutions guarantees of equal protection of the laws
and due process. See Windsor, 133 S.Ct. at 2691 (citing Loving v. Virginia, 388 U.S. 1
(1967)). The State does not have a valid interest in upholding and applying a law that
violates these constitutional guarantees. See Joeiner v. Vill. Of Washington Park, 378
F.3d 613, 620 (7th Cir. 2004). Although the court recognizes the States concern that
injunctions of this sort will cause confusion with the administration of Indianas marriage
SHORT APPENDIX 12
13

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

1
This argument had more strength when all of the Plaintiffs in the present lawsuit were seeking
preliminary injunctive relief, because they (as opposed to Niki and Amy) were never married,
and challenged the constitutionality of Indianas traditional marriage law. The motion for
preliminary injunctive relief from the unmarried Plaintiffs (Filing No. 35) is WITHDRAWN;
therefore, the court does not see the potential of creating great confusion from the courts grant
of the present motion which affects only one couple. Should this injunction be reversed or a
permanent injunction not issued at a later time, only the parties to this case may suffer from
confusion. The court has faith that their respective attorneys can explain any decisions and
effects from those decisions to them.
SHORT APPENDIX 13
14

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

SO ORDERED this 8th day of May 2014.

s/ Richard L.Young________________
RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
Southern District of Indiana

Distributed Electronically to Registered Counsel of Record.

SHORT APPENDIX 14
__________________________________
RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
Southern District of Indiana

In The United States Court of Appeals For The Seventh Circuit

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