No.

14-2386


In The United States Court of Appeals
For The Seventh Circuit


MARILYN RAE BASKIN, et al.,
Plaintiffs-Appellees,
v.

GREG ZOELLER, et al.,
Defendants-Appellants.


On Appeal From The United States District Court
For The Southern District of Indiana
Case No. 1:14-cv-00355-RLY-TAB
The Honorable Richard L. Young Presiding

MOTION TO ALLOCATE TIME FOR ORAL ARGUMENT
PURSUANT TO SEVENTH CIRCUIT RULE 34
KIRKLAND & ELLIS LLP
Jordan M. Heinz
Brent P. Ray
Dmitriy Tishyevich
Melanie C. MacKay
Scott Lerner
300 N. LaSalle
Chicago, IL 60654
(312) 862-2000

LAMBDA LEGAL DEFENSE &
EDUCATION FUND, INC.
Paul D. Castillo
3500 Oak Lawn Ave., Ste. 500
Dallas, TX 75219
(214) 219-8585


LAW OFFICE OF BARBARA J. BAIRD
Barbara J. Baird
445 N. Pennsylvania, Ste. 401
Indianapolis, IN 46204
(317) 637-2345
LAMBDA LEGAL DEFENSE &
EDUCATION FUND, INC.
Camilla B. Taylor
105 W. Adams, Ste. 2600
Chicago, IL 60603
(312) 663-4413

Counsel for Plaintiffs-Appellees
Case: 14-2386 Document: 117 Filed: 07/31/2014 Pages: 10


Plaintiffs-Appellees Marilyn Rae Baskin and Esther Fuller; Bonnie Everly and
Linda Judkins; Dawn Lynn Carver and Pamela Ruth Elease Eanes; Henry Greene
and Glenn Funkhouser; Nikole Quasney and Amy Sandler; and minor Plaintiff-
Appellees C.A.G, A.Q.-S. and M.Q.-S. (collectively, Baskin Plaintiffs), by their
attorneys, respectfully submit this Motion to Allocate Time for Oral Argument
Pursuant to Circuit Rule 34. In this motion, as set out in detail below, the Baskin
Plaintiffs respectfully request entry of an order directing counsel for the Baskin
Plaintiffs to present oral argument on behalf of all plaintiffs in the three separate
actions consolidated in this appeal.
1. This appeal arises from a single decision, Baskin v. Bogan, No. 1:14-cv-355
(S.D. Ind.), Dkt. No. 89, Entry on Cross-Motions for Summ. J. (SJ Order), granting
summary judgment to plaintiffs in three separate actions, consolidated on appeal:
Baskin v. Bogan (No. 14-2386) (Baskin); Fujii v. Commissioner of the Indiana State
Department of Revenue (No. 14-2387) (Fujii); and Lee v. Abbott (No. 14-2388)
(Lee). In Baskin and Fujii, the plaintiffs include Hoosier same-sex couples who wish
to marry, as well as Hoosier same-sex spouses who have married in other
jurisdictions, together with the children of some of these plaintiffs. The plaintiffs in
Baskin and Fujii challenge the constitutionality of two statutory exclusions in
Indiana law: 1) Indianas refusal to permit same-sex couples to marry; and 2)
Indianas refusal to recognize out-of-state marriages of same-sex couples. In Lee, the
plaintiffs, who are same-sex couples married in other jurisdictions, challenge solely
Indianas refusal to recognize out-of-state marriages. This Court consolidated all
three cases for briefing and argument by order of June 27, 2014.
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2
2. On July 25, 2014, this Court ordered oral argument for all three consolidated
cases to take place on August 26, 2014, allocating 20 minutes per side.
3. Seventh Circuit Rule 34(c) provides:
(c) Divided Argument Not Favored. Divided arguments on behalf of a single
party or multiple parties with the same interests are not favored by the court.
When such arguments are nevertheless divided or when more than one
counsel argues on the same side for parties with differing interests, the time
allowed shall be apportioned between such counsel in their own discretion. If
counsel are unable to agree, the court will allocate the time.

No counsel in any of the consolidated cases believe divided time best serves the
interests of the parties or the panel, but counsel are at an impasse.
4. For the following reasons, the Baskin Plaintiffs request that this Court direct
their counsel to argue on behalf of plaintiffs in all three cases. First, the district court
designated Baskin v. Bogan, No. 1:14-cv-00355-RLY-TAB the lead case below, recited
solely the facts in Baskin to the complete exclusion of factual assertions in the other
two cases, and cited almost exclusively to Baskin record filings. (SJ Order at 4 (The
court considers the case of Baskin v. Bogan to be the lead case and thus will recite
only those facts relevant to that dispute); id. at n.1 (Filing Numbers will refer to
those documents in Baskin v. Bogan unless stated otherwise.).) Naturally, counsel
for the Baskin Plaintiffs are more familiar with the particulars in their own case,
including relevant facts, transcripts, and the filings in the record below, than counsel
for Fujii or Lee.
5. Second, counsel in Baskin argued the merits of the case below at a hearing on
the Baskin Plaintiffs summary judgment motion. Counsel in Fujii voluntarily
waived oral argument, and argument was neither requested nor held in Lee either.
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3
(Fujii Stipulation, Fujii Dkt. No. 39, at 1 (Plaintiffs do not see the necessity of
having an oral argument on their motions.).) The District Court relied most heavily
on the record in Baskin and cited expressly to concessions by Appellants counsel
during the oral argument on the Baskin Plaintiffs summary judgment motion in the
decision below. (SJ Order at 19.) Appellants also relied heavily on the summary
judgment oral argument transcript, devoting a page of Appellants Brief to quoting
from and analyzing an exchange at oral argument with counsel for Baskin Plaintiffs.
(Brief & Req. Short Appx of Appellants, Dkt. No. 37 (Apps. Br.), at 38-39, citing
App. 95 (Tr. of Oral Argument on Baskin Plaintiffs Motion for Summary Judgment,
dated May 2, 2014, at 60:13-63:13).) Counsel for the Baskin Plaintiffs is in the best
position to discuss what transpired during argument in Baskin, which was not
attended by counsel for Lee or Fujii.
6. Counsel for the Baskin Plaintiffs also successfully argued two additional
motions below (a motion for a temporary restraining order, followed by a motion for a
preliminary injunction) to secure emergency relief for Baskin Plaintiffs Nikole
(Niki) Quasney and Amy Sandler and their two young children, resulting in district
court orders requiring the State to respect Nikis marriage to Amy, because Niki, age
37, is in the final stretch of her five-year battle against Stage IV ovarian cancer.
(Baskin Dkt. No. 51 (Order on Plaintiffs Motion for a Temporary Restraining Order);
Dkt. No. 65 (Order on Plaintiffs Motion for a Preliminary Injunction).) Although this
Court stayed the district courts order granting summary judgment on June 27, 2014,
the Court lifted the stay solely with respect to Niki and Amy on July 1, 2014, in
recognition of the irreparable and devastating harm they face from lack of
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4
recognition for their marriage as this case proceeds. (Baskin v. Bogan, No. 14-2386,
Dkt. No. 20 (7th Cir. July 1, 2014) (Order Granting Plaintiffs-Appellees Quasney and
Sandlers Emergency Motion To Lift The Courts Stay In Part).) Thus, Niki Quasney
and Amy Sandler are in a unique position: they are currently the only same-sex
couple recognized as validly married in Indiana, and have been recognized as
married continuously since April 10, 2014, except for four days between this Courts
entry of an order staying the District Courts decision below, and its order lifting the
stay as to them. Should Appellants argue, as they have done in their brief, that
recognition of same-sex couples out-of-state marriages will harm the State (Apps.
Br. at 51-52), counsel for the Baskin Plaintiffs would be able to explain in reference
to their own clients the history of Indianas respect for Niki and Amys marriage, and
discuss how recognition of their marriage for more than four months has harmed no
one.
7. The Lee case solely involves same-sex couples seeking recognition of existing
marriages, and therefore counsel in Lee did not have occasion to brief below the
issues specific to a constitutional challenge to laws prohibiting same-sex couples from
marrying within Indiana. By contrast, counsel for the Baskin Plaintiffs have
experience in briefing and arguing below all of the claims at issue in this appeal;
Baskin involves both recognition claims on behalf of married plaintiffs, and claims on
behalf of unmarried plaintiffs seeking to marry in Indiana. As the appellate briefing
demonstrates, there is not complete overlap in the legal issues implicated by married
and unmarried plaintiffs. (See Apps. Br. at Section IV (addressing in a separate
point certain equal protection arguments specific to recognition claims brought by
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5
couples married outside of Indiana); Appellees Brief at Section II.B (addressing
separately the due process arguments specific to recognition claims).)
8. The Fujii Plaintiffs are represented by the American Civil Liberties Union and
its respective state affiliate (ACLU). The ACLU also represents the plaintiffs in
Wolf v. Walker (No. 14-2526), a similar lawsuit challenging the constitutionality of
Wisconsins marriage ban, which has been consolidated for briefing and argument
with the three Indiana consolidated cases. Counsel for the Baskin Plaintiffs have
been advised that the ACLU wishes to select randomly the counsel who will argue
the Indiana cases in order to give the ACLU an opportunity to argue on behalf of
Appellees in both the Wisconsin and Indiana cases, for a combined argument time of
40 minutes for all four cases. Counsel for the Baskin Plaintiffs oppose that
arrangement and, as counsel for the lead case in Indiana, desire to argue the
Baskin/Fujii/Lee consolidated appeals.
9. The positions taken by the ACLU will be given full consideration by the same
panel at the same setting. While the ACLU likely would respond to the panels
inquiries similarly to counsel for the Baskin Plaintiffs in most respects, the panel is
entitled to hear any divergent views that represent the greatest number of parties in
these four cases. Allotting both 20-minute slots in all four appeals to ACLU counsel
deprives the panel of those views.
10. Counsel for the Baskin Plaintiffs are skilled and experienced in arguing
marriage cases and are more than qualified to argue on behalf of plaintiffs in all
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6
three consolidated cases.
1
Lambda Legal Defense and Education Fund, Inc. (Lambda
Legal), is the nations oldest and largest legal organization advocating on behalf of
lesbian, gay, bisexual, transgender people, and people with HIV. Lambda Legal has
been party counsel for plaintiffs in numerous state and federal cases challenging the
constitutionality of laws excluding same-sex couples from marriage,
2
and also was
party counsel in Lawrence v. Texas, 539 U.S. 558 (2003), and co-counsel in Romer v.
Evans, 517 U.S. 620 (1996), two of the Supreme Courts leading cases redressing
sexual orientation discrimination.

1
After oral argument with respect to both the temporary restraining order and summary
judgment motion and preliminary injunction, the District Court praised counsel on both
sides for the skill with which they had presented argument. (Baskin Tr. of Oral Argument
on Motion for Temporary Restraining Order, dated Apr. 10, 2014, at 45:1-3; Tr. of Oral
Argument on Baskin Plaintiffs Motion for Summary Judgment, dated May 2, 2014, at 63:17-
20.)
2
See, e.g., Bostic v. Schaefer, 2014 U.S. App. LEXIS 14298 (4th Cir. July 28, 2014) (counsel
for intervening appellees) (striking down Virginias marriage ban); Henry v. Himes, No. 1:14-
cv-129, 2014 WL 1418395 (S.D. Ohio Apr. 14, 2014) (invalidating Ohios ban on recognition of
same-sex couples out-of-state marriages) (set for argument August 6); Lee v. Orr, 13-cv-8719,
2014 WL 683680 (N.D. Ill. Feb. 21, 2014) (invalidating Illinois marriage ban); Gray v. Orr,
No. 13 C 8449, 2013 WL 6355918 (N.D. Ill. Dec. 5, 2013) (granting temporary restraining
order to permit same-sex couple to marry); Garden State Equal. v. Dow, 82 A.3d 336 (N.J.
Super. Ct. Law Div. 2013) (invalidating New Jerseys ban); Sevcik v. Sandoval, No. 12-17668
(9th Cir.) (challenging Nevadas marriage ban) (set for argument September 8); Varnum v.
Brien, 763 N.W. 2d 862 (Iowa 2009) (invalidating Iowas marriage ban); In re Marriage
Cases, 183 P.3d 384 (Cal. 2008) (invalidating Californias marriage ban); Baehr v. Lewin, 852
P.2d 44 (Haw. 1993) (finding Hawaii marriage ban discriminated based on sex); Darby v.
Orr, No. 12-CH-19718 (Ill. Cir. Ct., Cook Cnty. Sept. 27, 2013) (challenging Illinois marriage
ban); McGee v. Cole, No. 3:13-24068, 2014 WL 321122 (S.D. W.Va. Jan. 29, 2014)
(challenging West Virginias marriage ban); Majors v. Horne, No. 2:14-cv-00518 (D. AZ. filed
Mar. 12, 2014) (challenging Arizonas marriage ban); Inniss v. Aderhold, No. 1:14-cv-01180
(N.D. Ga. filed Apr. 22, 2014) (challenging Georgias marriage ban); Jorgensen v. Dalrymple,
No. 3:14-cv-00058 (D. N.D. filed Jun. 9, 2014) (challenging North Dakotas marriage ban);
Conde v. Garcia Padilla, No. 3:14-cv-01253-PG (D. P.R. filed Jun. 25, 2014) (challenging
Puerto Ricos marriage ban).
Case: 14-2386 Document: 117 Filed: 07/31/2014 Pages: 10

7
11. Finally, Camilla B. Taylor, counsel who would argue for the Indiana
consolidated cases, is a skilled appellate advocate and well suited to provide the most
cogent arguments on behalf of all the Plaintiffs legal claims and most responsive
answers to the panels questions. As Lambda Legals National Marriage Project
Director, she has served as party counsel in 10 cases in state and federal courts
seeking the freedom to marry and marital protections for same-sex couples and is
thoroughly familiar with the facts and legal history of the more than 90 marriage
equality decisions rendered over the past two decades.
CONCLUSION
In the interest of providing the panel the greatest diversity of argument across
the four cases, and because counsel for the Baskin Plaintiffs are most familiar with
the record and history that primarily resulted in the District Courts decision, the
Baskin Plaintiffs respectfully request that this Court enter an order directing counsel
for the Baskin Plaintiffs to argue on behalf of plaintiffs in all three Indiana
consolidated cases.

Case: 14-2386 Document: 117 Filed: 07/31/2014 Pages: 10

8
Respectfully submitted,


/s/ Jordan M. Heinz

Jordan M. Heinz
Brent P. Ray
Dmitriy G. Tishyevich
Melanie MacKay
Scott Lerner
KIRKLAND & ELLIS LLP
300 North LaSalle Street
Chicago, Illinois 60654
(312) 862 2000
jordan.heinz@kirkland.com
brent.ray@kirkland.com
dmitriy.tishyevich@kirkland.com
melanie.mackay@kirkland.com
scott.lerner@kirkland.com

Barbara J. Baird
LAW OFFICE OF BARBARA J. BAIRD
445 North Pennsylvania Street, Suite
401
Indianapolis, Indiana 46204-0000
(317) 637-2345
bjbaird@bjbairdlaw.com


Paul D. Castillo
LAMBDA LEGAL DEFENSE &
EDUCATION FUND, INC.
3500 Oak Lawn Ave., Suite 500
Dallas, Texas 75219
(214) 219-8585, ext. 242
pcastillo@lambdalegal.org

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


Dated: July 31, 2014


Case: 14-2386 Document: 117 Filed: 07/31/2014 Pages: 10


CERTIFICATE OF SERVICE

I hereby certify that on July 31, 2014, I caused a true and correct copy of the
foregoing Motion To Allocate Time For Oral Argument Pursuant to Seventh Circuit
Rule 34 to be electronically filed with the Clerk of the Court for the United States
Court of Appeals for the Seventh Circuit by using the CM/ECF system. Those
participants in the case that are registered CM/ECF users will receive service by
the CM/ECF system.

/s/ Jordan M. Heinz
Case: 14-2386 Document: 117 Filed: 07/31/2014 Pages: 10