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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION MIDORI FUJII, et al., Plaintiffs, v. GOVERNOR, STATE OF INDIANA, et al., Defendants. ) ) ) ) ) ) ) ) ) )

No. 1:14-cv-404 RLY-TAB

Plaintiffs’ Memorandum in Support of Motion for Summary Judgment Introduction Indiana Code § 31-11-1-1 prohibits same-sex couples from marrying in Indiana and voids all same-sex marriages in Indiana even if the marriages were lawful in the jurisdictions where they were solemnized. Following the Supreme Court’s decision in United States v. Windsor, – U.S.–, 133 S. Ct. 2675 (2013), invalidating section 3 of the federal Defense of Marriage Act, 1 U.S.C. § 7, at least eight district courts have found that state statutes or provisions of state constitutions refusing to allow or recognize same-sex marriages were unconstitutional or have entered preliminary injunctions after concluding that plaintiffs were likely to establish the unconstitutionality of the statutes or provisions. See DeBoer v. Snyder, –F. Supp. 2d–, No. 12CV-10285, 2014 WL 1100794 (E.D. Mich. Mar. 21, 2014) (final judgment), appeal docketed, No. 14-1341 (6th Cir. Mar. 21, 2014); Tanco v. Haslam, –F. Supp. 2d–, No. 3:13-cv-01159, 2014 WL 997525 (M.D. Tenn. Mar. 14, 2014) (preliminary injunction), appeal docketed, No. 14-5287 (6th Cir. Mar. 19, 2014); De Leon v. Perry, –F. Supp. 2d.–, No. SA-13-CA-00982-OLG, 2014 WL 715741 (W.D. Tex. Feb. 26, 2014) (preliminary injunction), appeal docketed, No. 14-50196 (5th Cir. Mar. 1, 2014); Bostic v. Rainey, –F. Supp. 2d–, No. 213cv395, 2014 WL 561978 (E.D. Page | 1

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Va. Feb. 13, 2014) (final judgment), appeal docketed, Nos. 14-1167 & 14-1169 (4th Cir. Feb. 25, 2014); Bourke v. Beshear, –F. Supp. 2d–, No. 3:13-CV-750-H, 2014 WL 556729 (W.D. Ky. Feb. 12, 2014) (final judgment), appeal docketed, No. 14-5291 (6th Cir. Mar. 19, 2014); Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1252 (N.D. Okla. 2014) (final judgment), appeal docketed, No. 14-5006 (10th Cir. Jan. 27, 2014); Obergefell v. Wymyslo, 962 F. Supp. 2d 968 (S.D. Ohio 2013) (final judgment), appeal docketed, No. 14-3057 (6th Cir. Jan. 22, 2014); Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013) (final judgment), appeal docketed, No. 13-4178 (10th Cir. Dec. 20, 2013). These decisions are correct and point to the clear conclusion that Indiana Code § 31-11-11 is unconstitutional. There are no contested issues of fact in this cause and summary judgment should enter declaring the statute unconstitutional and enjoining its use and application. The summary judgment standard Under Rule 56, one who moves for summary judgment is entitled to judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Rule requires that the moving party identify “those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once this burden is satisfied, the non-moving party bears the burden of demonstrating that there are, in fact, genuine issues of material fact. Harney v. Speedway SuperAmerica, LLC., 526 F.3d 1099, 1104 (7th Cir. 2008). “If no genuine issues of material fact exists, the sole question is whether the moving party is entitled to judgment as a matter of law.” Logan v. Commercial Union Insurance Co., 96 F.3d 971, 978 (7th Cir. 1996).

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Statement of material facts not in dispute The statute: This litigation concerns the constitutionality of Indiana Code § 31-11-1-1, which provides: (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. This statute has negatively impacted each of the plaintiffs and continues to do so. Midori Fujii Midori Fujii is an adult resident of Hamilton County. (Exhibit 1 to the Motion for Summary Judgment – Affidavit of Midori Fujii [“Fujii”] ¶ 1). In 1997 she met Kristie Kay Brittain when they both served on the Board of Directors of a local non-profit organization. (Id. ¶ 2). They developed a strong friendship which, after a few years, grew into a life-long committed relationship. (Id. ¶ 3). The couple lived together from 2000 until Ms. Brittain’s death in October of 2011. (Id. ¶ 2). The couple married in Los Angeles in the summer of 2008 (Id. ¶ 5).

Unfortunately, shortly thereafter Ms. Brittain was diagnosed with ovarian cancer. (Id. ¶ 6). Ms. Fujii was her partner’s primary caregiver throughout Ms. Brittain’s lengthy illness as she went through two major surgeries, several hospitalizations, multiple courses of chemotherapy, and numerous tests and doctors’ appointments. (Id.). Ms. Fujii originally used sick leave and paid time off to care for Ms. Brittain, but as Ms. Brittain’s needs increased, Ms. Fujii began to work from home when possible and took unpaid leaves of absence. (Id.). Because of the challenged law, the couple, although married in California, were not deemed to be married in Indiana and therefore did not have any of the protections and decisionmaking authority that they would have had if they were a married opposite-sex couple. (Id. ¶ 7). Page | 3

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They were required to hire an attorney to draft such things as wills and powers of attorney to ensure that Ms. Fujii could care for Ms. Brittain and make medical decision as needed and inherit property from her. (Id.). Throughout Ms. Brittain’s battle with cancer, the couple was always a little on guard going to the doctors and hospitals and they lived with the added emotional stress of constantly being apprehensive about how they, as a lesbian couple, would be treated by health care providers. (Id.). And, as Ms. Brittain suffered from the emotional and physical pain of endstage cancer, she had the additional burden of worrying about how Ms. Fujii would manage financially after Ms. Brittain was gone, particularly because Ms. Fujii would be denied most of the legal protections that are available to widows and widowers. (Id. ¶ 8). Because the challenged statute did not recognize the couple’s marriage, Ms. Fujii was required to pay more than $300,000 in Indiana inheritance tax on all the property that she was left by Ms. Brittain, including the couple’s shared home. (Id. ¶ 9). If Ms. Fujii was an opposite sex spouse she would have paid no tax on the property inherited from her spouse. (Id.). If the marriage would now be recognized as valid, Ms. Fujii could file the necessary proceedings in Indiana to have the inheritance tax refunded to her. (Id. ¶ 10). Unless Ms. Fujii’s marriage to Ms. Brittain is recognized in Indiana, Ms. Fujii will not be eligible to receive Ms. Brittain’s social security benefits when Ms. Fujii turns 65. (Id. ¶ 9). This is significant as Ms, Brittain was the family’s primary breadwinner. (Id.). If Ms. Fujii could draw on Ms. Brittain’s social security, as an opposite sex spouse could, Ms. Fujii would have greater financial security in retirement. (Id.). The harm caused to Ms. Fujii by Indiana’s refusal to recognize her marriage to Ms. Brittain is, of course, more than economic. (Id. ¶ 11). In her time of grief she is denied the comfort and dignity of being acknowledged as Ms. Brittain’s widow. (Id.). Indeed, following

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Ms. Brittain’s death in 2011, Ms. Fujii experienced problems with a funeral director who did not consider her to be a surviving spouse. (Id.). Melody Layne and Tara Betterman; Scott Moubray-Carrico and Rodney MoubrayCarrico; and Rob MacPherson and Steven Stolen Melody Layne and Tara Betterman, Scott Moubray-Carrico and Rodney MoubrayCarrico, and Rob MacPherson and Steven Stolen are all Indiana same-sex couples who married out of the State of Indiana in jurisdictions allowing same-sex marriages and have returned to Indiana where their marriages are not recognized. (Exhibit 2 to the Motion for Summary

Judgment – Affidavit of Melody Layne and Tara Betterman (“Layne-Betterman”) ¶¶ 1, 3, 4, 6; Exhibit 3 to the Motion for Summary Judgment – Affidavit of Scott and Rodney MoubrayCarrico (“Moubray-Carrico” ) ¶¶ 1, 2, 9, 10, 11; Exhibit 4 to the Motion for Summary Judgment – Affidavit of Rob MacPherson and Steven Stolen (“MacPherson-Stolen”) ¶¶ 1, 2, 6). All of the couples are employed. Melody Layne works in business development for a publishing company and Tara Betterman is the owner and CEO of a property management company in Indianapolis. (Layne-Betterman ¶ 3). Rodney Moubray-Carrico is the general

manager of a hotel and Scott Moubray-Carrico is the store manager of a department store. (Moubray-Carrico ¶ 2). Steven Stolen is currently the regional director of a charter school management association and Rob MacPherson is the director of asset development strategies and donor services for the Central Indiana Community Foundation. (MacPherson-Stolen ¶¶ 3-4). Because their out-of-state marriages are not recognized in Indiana, both Ms. Layne and Ms. Betterman and Mr. MacPherson and Mr. Stolen have had to pay to have medical decisionmaking and other documents drawn up to allow one partner to make decisions for the other in case of incapacity. (Layne-Betterman ¶ 7, Stolen-MacPherson ¶ 8). Scott Moubray-Carrico went

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to the internet to prepare a Last Will and Testament and Power of Attorney. (Moubray-Carrico ¶ 6). Because of the expense, these are the only documents that the couple have. (Id.). However, if all of the couples’ marriages were recognized in Indiana they would receive automatic protections for such things as medical decision-making and intestate succession. (Id., Layne-Betterman ¶ 7; MacPherson-Stolen ¶ 8). Given that they are not viewed as married in Indiana there is no guarantee that if there is a medical emergency that the decision-making authority of the other partners will be recognized. (MacPherson-Stolen ¶ 8; Moubray-Carrico ¶ 6, Layne-Betterman ¶ 7). The couples also suffer financial harms and burdens that opposite-sex couples do not. For example, because the IRS recognizes their out-of-state marriages, although Indiana does not, the couples have to deny their status as married persons when they pay state taxes, even though the federal government recognizes them as married. (MacPherson-Stolen ¶ 6). This requires the completion of three separate federal tax returns – one joint return as a married couple to file for federal taxes and two individual returns to be used to transfer information to the separate Indiana state income tax returns that must be filed. (Layne-Betterman ¶ 8; Exhibit 2 to Amended Complaint- “Same Sex Marriage Tax Filing Guidance,” available at http://www.in.gov/dor/4895 .htm). Scott and Rodney Moubray-Carrico are the parents of a 6-year old, L.M.-C. (MoubrayCarrico ¶ 3). Scott initially adopted L.M.-C. and then Rodney later obtained a second parent adoption to establish a legal-parent child relationship with their son. (Id.). A.M.-S was born in July of 1998 and her birth mother chose Rob MacPherson and Steven Stolen to be the child’s adoptive parents prior to the child’s birth. (MacPherson-Stolen ¶ 5). She was legally adopted by Rob MacPherson in November of 1998 and then she was adopted by Steven after the filing of a

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co-parenting petition. (Id.). Melody Layne and Tara Betterman share their home in Indianapolis with Melody’s 5-year old daughter. (Layne-Betterman ¶ 4). Although Ms. Betterman does not have a legal relationship with the child, she is a parent in every practical respect and the child understands that they are all family. (Id.). The fact that the couples’ marriages cannot be legally recognized in Indiana amplifies the problems and concerns when there are children involved. A.M.-S. is currently 15 and is wellaware that Indiana law does not recognize her parents’ marriage as valid. (Exhibit 5 to the Motion for Summary Judgment – Affidavit of A.M.-S. (“A.M.-S”) ¶ 5; MacPherson-Stolen ¶ 12). This was emphasized during the recent debate in the Indiana legislature over the proposed constitutional amendment concerning marriages of same-sex couples when A.M.-S. became upset because Indiana was treating her, and her parents, differently than how her friends whose parents are of opposite sexes and married are treated and was sending the message that her family was not valid. (A.M.-S. ¶ 7; MacPherson-Stolen ¶12). In 2010 Rodney and Scott

Moubray-Carrico changed their last names to Moubray-Carrico, a combination of their surnames, after experiencing challenges in being viewed as a family while enrolling their son in pre-school. (Moubray-Carrico ¶ 5). Their son is beginning to understand the concept of marriage and its unequaled role in defining family. (Id. ¶ 12). He knows that he and his parents are a family but does not understand why his parents are not allowed to marry in Indiana. (Id.). He is stigmatized and demeaned by this. (Id.). Although there are many tangible benefits bestowed under Indiana law to married persons and their children that are denied these couples (MacPherson-Stolen ¶ 9), there are many intangible benefits as well. At its most basic, regardless of the tangible benefits, it is grossly unfair not to treat the families like all other families with married parents. (Id.). To have the

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couples’ relationship not afforded the same legal status as the relationship of other couples because the plaintiff-couples are the same gender is onerous and disrespects the commitment they have made to each other and ultimately devalues their families. (Id.; Layne-Betterman ¶ 11; Moubray-Carrico ¶ 10). There is recognition, legitimacy and freedom in being married and having that marriage recognized and there is a loss of freedom when Indiana does not recognize the marriage. (Layne-Betterman ¶¶ 10-11). Monica Wehrle and Harriet Miller and Gregory Hasty and Christopher Vallero Monica Wehrle and Harriet Miller are long-time residents of Fort Wayne who are lesbians and have been a committed, loving couple since 1977. (Exhibit 6 to the Motion for Summary Judgment – Affidavit of Monica Wehrle and Harriet Miller [“Wehrle-Miller”] ¶¶ 1-2). They have been active participants, both nationally and internationally, in the Gay Games, and have a significant history of civic leadership and involvement in the Fort Wayne community creating, among other things a not-for-profit for profit human services agency that provides a host of services to both women and children. (Id. ¶¶ 4, 6). Gregory Hasty and Christopher Vallero are a gay couple who live in Hamilton County, Indiana. (Exhibit 7 to the Motion for Summary Judgment – Affidavit of Gregory Hasty and Christopher Vallero [“Hasty-Vallero”] ¶¶ 1-2). Mr. Hasty is a surgical technologist and Mr. Vallero is employed by a medical research company in Indianapolis. (Id. ¶ 2). They have lived together in a committed and loving relationship for eight years. (Id. ¶ 3). Mr. Hasty and Mr. Vallero are not married and wish to be married in Indiana. (Id. ¶¶ 45). Ms. Wehrle and Ms. Miller would also like to marry in Indiana – where they live. (WehrleMiller ¶ 10).

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Because they cannot marry, these couples are denied many of the tangible benefits of marriage. For example, because they are not married they are unable to own property as married persons do, as tenants by the entirety. (Id. ¶ 8; Hasty-Vallero ¶ 7). In order to ensure that the property will pass to the surviving partner in the event of death, legal documents have to be drawn up and paid for. (Wehrle-Miller ¶ 8). Because the couples are not married they also have to employ attorneys to draw up other legal documents – such as medical powers of attorney – that would be completely unnecessary if they were married, as a spouse would automatically have those rights. (Hasty-Vallero ¶ 8; Wehrle-Miller ¶ 7). Despite these documents, there is no guarantee that if an emergency arises and one of the partners is hospitalized that they will have the documents with them or that they will be honored. (Hasty-Vallero ¶ 8; Wehrle-Miller ¶ 7). The challenged statute causes many intangible burdens and concerns as well. Mr. Hasty and Mr. Vallero are looking into the possibility of adopting a child. (Hasty-Vallero ¶ 9). They want their child to be raised by married parents in a State that recognizes the right of loving couples to wed, regardless of whether they are straight or gay. (Id.). Ultimately, the couples are stigmatized and made to feel like second-class citizens by being denied the many intangible benefits that arise from being able to show the world that they are married. (Hasty-Vallero ¶ 10; Wehrle-Miller ¶ 13). As Ms. Wehrle and Ms. Miller note,

they wish to be treated equally and want Indiana to support their committed relationship and want their many young relatives to know that Indiana supports loving couples completely, regardless of whether the couples are gay or straight. (Wehrle-Miller ¶¶ 9, 11, 12, 14). The defendants The Governor of the State of Indiana is the chief executive of the State of Indiana. Ind. Const. Art. 5, § 1. As such, he is ultimately responsible for the actions and inactions of all

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executive agencies as “the executive power of the government is vested not in the various departments and agencies, but in the Governor alone.” State ex rel. Sendak v. Marion County Superior Court, Room No. 2, 373 N.E.2d 145, 149 (Ind. 1978) (citing Tucker v. State, 35 N.E.2d 270 (1941)). The Indiana Department of Revenue has the primary responsibility for administering, collecting, and enforcing, among other things, state income taxes. Ind. Code §§ 6-8.1-1-1, 68.1-2-1. It is under the control of the Governor, who appoints the Commissioner to head the Department. Ind. Code §§ 6-8.1-2-2, 6-8.1-3-2(a). The Department of Revenue has

promulgated the “Tax Filing Guidance,” attached to the Amended Complaint as Exhibit 2, which informs same-sex couples married in jurisdictions allowing such marriages that they must file their Indiana income tax returns as “single” and that to do so they must complete a “sample” federal tax return as if they were single, even though they are recognized as married by the federal government.1 The Indiana State Department of Health is the “superior health department” in Indiana, Ind. Code § 16-19-1-2, and is to “supervise the health and life of the citizens of Indiana,” Ind. Code § 16-19-3-1. It is headed by the State Health Commissioner, who is appointed by the Governor and who serves at the will and pleasure of the Governor. Ind. Code §§ 16-19-4-1, 2.
1

This Court may, of course, take judicial notice of public records. This includes public records available on the websites of governmental bodies. See Pickett v. Sheridan Health Care Ctr., 664 F.3d 632, 648 (7th Cir. 2011) (“We have recognized the authority of a court to take judicial notice of government websites.”); see also, e.g., Sandoval v. Ali, No., 2014 WL 1311776, at *1 n.1 (N.D. Cal. Mar. 28, 2014) (“[A] court may take judicial notice of information posted on government websites.”) (citation omitted); In re Wellbutrin SR/Zyban Antitrust Litigation, 281 F. Supp. 2d 751, 754 n.2 (E.D. Pa. 2003) (citing cases). The guidance appended to the plaintiffs’ Amended Complaint is available at http://www.in.gov/dor/4895.htm (last visited Apr. 8, 2014). (The Seventh Circuit in Pickett recognized that, “given that the Internet contains an unlimited supply of information with varying degrees of reliability, permanence, and accessibility, it is especially important for parties to have the opportunity to be heard prior to the taking of judicial notice of websites.” 664 F.3d at 648. Pickett arose as an employment discrimination suit against a private employer, and it is not anticipated that the State will contest the reliability of its own website.)

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Pursuant to Indiana law, Ind. Code § 31-11-4-4, the State Department of Health is required to develop the form for application for a marriage license. The form that the Department has developed is attached as Exhibit 1 to the Amended Complaint in this case. It explicitly allows only for a couple consisting of a “male applicant” and “female applicant,” thereby making it impossible for a same-sex couple to complete the form. furnishing false information in completing the form is a felony.2 In order to be married, Mr. Hasty and Mr. Vallero and Ms. Wehrle and Ms. Miller must apply to the Clerk where they live – Hamilton County and Allen County. Under Indiana law the County Clerk is required to issue marriage licenses to eligible couples who complete the application. Ind. Code § 31-11-4-1, et seq. The Clerk is precluded from issuing a license to persons who do not have authority to marry each other under, among other things, Indiana Code § 31-11-1-1. Ind. Code § 31-11-4-2. Argument The State’s authority to regulate marriage is not absolute. Rather, state laws regarding marriage are “subject to constitutional guarantees” and “must respect the constitutional rights of persons.” Windsor , 133 S. Ct. at 2691-92. The Supreme Court has expressly rejected the argument that “the regulation of marriage should be left to exclusive state control.” Loving v. Virginia, 388 U.S. 1, 7 (1967). In a number of landmark cases that frame our basic Exhibit 1 further provides that

understanding of some of the most important limitations on state power, the Court repeatedly invalidated state marriage laws that violate the Fourteenth Amendment’s guarantees of due process and equal protection. See Turner v. Safley, 482 U.S. 78 (1987); Zablocki v.

2

Exhibit 1 is a governmental form and thus a public record of which this Court, like the website of the Department of Revenue, may take judicial notice. See, e.g., Palay v. United States, 349 F.3d 418, 425 n.5 (7th Cir. 2003). The form is also available through http://www.in.gov/isdh/19042.htm (follow link under “Marriage” heading) (last visited Apr. 8, 2014).

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Redhail, 434 U.S. 374 (1978); Loving, 388 U.S. at 12.

Because Indiana’s marriage

discrimination statute violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment, it cannot stand. I. Indiana’s marriage discrimination statute infringes uponthe plaintiffs’ fundamental right to marry, and to have their marriages recognized, in violation of the Due Process Clause of the Fourteenth Amendment The Due Process Clause of the Fourteenth Amendment to the United States Constitution provides that no “State [shall] deprive any person of life, liberty, or property, without due process of law.” U.S. CONST. amend. XIV, § 1. The guarantee of due process protects individuals from arbitrary governmental intrusion into fundamental rights. See, e.g., Washington v. Glucksberg, 521 U.S. 702, 719-20 (1997). Under the Due

Process Clause, when legislation burdens the exercise of a right deemed to be fundamental, the government must show that the intrusion “is supported by sufficiently important state interests and is closely tailored to effectuate only those interests.” Zablocki, 434 U.S. at 388. And, even statutes that do not impact fundamental rights cannot stand under due process if they do not bear a rational relation to a legitimate government interest. See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 406 (1992). Indiana’s marriage discrimination statute is subject to heightened scrutiny insofar as it infringes upon the plaintiffs’ fundamental rights. Even if not subjected to heightened scrutiny, however, the statute lacks a rational basis and is unconstitutional. A. The right to choose one’s spouse free of unjustified interference by the State is an essential component of the fundamental right to marry

“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” Loving, 388 U.S. at 12 (citation omitted). The Supreme Court has defined marriage as a right of liberty (Zablocki, 434 U.S. Page | 12

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at 384), privacy (Griswold v. Connecticut, 381 U.S. 479, 486 (1965), intimate choice (Lawrence v. Texas, 539 U.S. 558, 574 (2003)), and association (M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996)). Marriage is an “expression[] of emotional support and public

commitment,” Turner, 482 U.S. at 95, and “is of fundamental importance for all individuals,” Zablocki, 434 U.S. at 384 (emphasis added). The Court has thus “long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.” Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-40 (1974). While states have a legitimate interest in regulating and promoting marriage within constitutional bounds, the fundamental right to choose one’s spouse belongs to the individual. “[A]mong the decisions that an individual may make without unjustified government interference are personal decisions relating to marriage.” Carey v. Population Servs. Int’l,, 431 U.S. 678, 684-85 (1977). “[T]he regulation of constitutionally protected decisions, such as where a person shall reside or whom he or she shall marry, must be predicated on legitimate state concerns other than disagreement with the choice the individual has made.” Hodgson v. Minnesota, 497 U.S. 417, 435 (1990); see also Roberts v. U.S. Jaycees, 468 U.S. 609, 620 (1984) (“[T]he Constitution undoubtedly imposes constraints on the State’s power to control the selection of one’s spouse.”); Loving, 388 U.S. at 12 (“Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”). B. The plaintiffs seek to exercise the same fundamental right to marry that all other citizens of Indiana enjoy

The plaintiffs in this case seek the same fundamental right to marry or to have their marriages, or those of their parents, recognized and respected by the State in the same manner Page | 13

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that opposite-sex couples enjoy. The fundamental right to marry, like any fundamental right, is defined by the substance of the right itself, not the characteristics of the individuals asserting it. The plaintiffs seek the right to marry, a right long-recognized as fundamental. The fact that their identities or characteristics may be different from those individuals that have asserted the right previously does not change the fundamental right at issue. In the due process analysis, Indiana’s marriage discrimination statute must rise or fall on whether the State’s exclusion of same sex couples from marriage is closely tailored to further a sufficiently important interest. Any attempt to re-cast the issue as an effort to secure a new fundamental right because same-sex couples historically have not been permitted to marry ignores long-standing Supreme Court precedent. The Court has consistently rejected the idea that the scope of a fundamental right can be limited based on whether a particular group has been permitted to exercise that right in the past. In Loving, the Court struck down Virginia’s laws barring interracial couples from marriage, even though race-based restrictions on marriage were deeply entrenched in our nation’s history and traditions. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 847-48 (1992)

(“[I]nterracial marriage was illegal in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause in Loving.”); Lawrence, 539 U.S. at 577-78 (“[N]either history nor tradition could save a law prohibiting miscegenation from constitutional attack.”) (quoting Bowers v. Hardwick, 478 U.S. 186, 216 (1986) (Kennedy, J., dissenting)). Loving did not recognize a new right to interracial marriage, but rather affirmed that “[t]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” 388 U.S. at 12.

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The Court’s marriage decisions following Loving similarly declined to limit the freedom to marry, or to redefine the fundamental right at issue, based on the characteristics of the couple asserting the right or on the fact that for much of our history such couples have been excluded from marriage. Throughout much of our nation’s history, states routinely barred prisoners from marrying. See Virginia L. Hardwick, Punishing the Innocent: Unconstitutional Restrictions on Prison Marriage and Visitation, 60 N.Y.U. L. REV. 275, 278 (1985) (noting that such restrictions were “almost universally upheld”). But in Turner, the Court held that incarcerated persons have the same fundamental right to marry as others (even if a lesser showing is necessary to justify the infringement of fundamental rights in the prison setting). 482 U.S. at 95-96. The Court did not limit the freedom to marry based on the long history of excluding prisoners from marriage. Instead, the Court examined the core attributes of marriage that cause it to be protected as a fundamental right and concluded that prisoners shared the same interest as others in those important, defining attributes. The Court held that even incarcerated prisoners with no right to conjugal visits have a fundamental right to marry because “[m]any important attributes of marriage remain . . . after taking into account the limitations imposed by prison life . . . [including] expressions of emotional support and public commitment,” the “exercise of religious faith,” and the “expression of personal dedication,” which “are an important and significant aspect of the marital relationship.” Id. Same-sex couples likewise are no less capable of participating in, and benefitting from, the constitutionally protected attributes of marriage than others. This approach to analyzing the fundamental right to marry without redefining the nature of that right based on the unique characteristics of the party seeking to exercise it is consistent with how the Supreme Court has analyzed other fundamental rights. Once the existence of a

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fundamental right is established it belongs to everyone and is not limited to only those whose characteristics or identities are similar to the individuals first asserting the right. For example, for centuries, men who fathered children out of wedlock were subject to social and legal stigma. Nonetheless, in Stanley v. Illinois, the Supreme Court readily held that the established fundamental right to parent included the right of an unmarried father to maintain a custodial relationship with his child. 405 U.S. 645, 658 (1972). The Court did not craft a new

fundamental right of an unmarried father to custody of his child. In Eisenstadt v. Baird, the Supreme Court struck down a ban on distributing contraceptives to unmarried persons, although previously the right to contraceptives had only been asserted by married persons in Griswold. 405 U.S. 438 (1972). The Court in Eisenstadt did not define the fundamental right at issue as the right of the unmarried to access contraceptives nor did it suggest that protecting the sexual privacy of unmarried people was rooted in the history and tradition of this country. Rather, consistent with the bedrock principle that once a fundamental right is recognized it belongs to everyone, the Court held that, “[i]f the right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Id. at 453. More recently, in Lawrence, the Court followed Eisenstadt and other due process cases in holding that lesbian and gay individuals could not be excluded from the existing fundamental right to sexual intimacy, even though historically they had often been prohibited from full enjoyment of that right. Lawrence, 539 U.S. at 566-67. In doing so the Court made clear that in Bowers v. Hardwick, 478 U.S. 186 (1986), it had erroneously framed the issue as “whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy.” Id. at 190. When it reversed Bowers in Lawrence, the Court rejected its prior narrowing of the

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fundamental rights at issue. The issue as framed in Bowers “disclose[d] the Court’s own failure to appreciate the extent of the liberty at stake.” 539 U.S. at 567. Lawrence thus held that the right of consenting adults (including same-sex couples) to engage in private, sexual intimacy is guaranteed by the Fourteenth Amendment's protection of liberty, notwithstanding the historical existence of sodomy laws and their use against gay people. For the same reasons, the fundamental right to marry is “deeply rooted in this Nation's history and tradition,” Glucksburg, 521 U.S. at 721, for purposes of constitutional protection even though same-sex couples have not historically been allowed to exercise that right. Any attempt to recast the liberty interest at stake in this case in a way that narrowly defines it out of existence suffers the same fatal flaw as the analysis in Bowers, which was very pointedly rejected by the Supreme Court in Lawrence. Having long ago confirmed the existence of a fundamental right to marry protected from unwarranted state interference by the Due Process Clause, the Supreme Court has never narrowed the nature of that right based on the characteristics of the parties seeking to exercise it. In the marriages cases before it, the Court has analyzed the fundamental right to marry, not a right to interracial marriage (Loving), inmate marriage (Turner), dead-beat dad marriage (Zablocki), or remarriage (Boddie v. Connecticut, 401 U.S. 371, 376 (1971)). As other district courts addressing similar challenges have recognized, the plaintiffs in this case do not seek a new right specific only to gay and lesbian persons, but simply wish to exercise the same freedom to marry enjoyed by all other citizens of Indiana. See, e.g., Bostic, 2014 WL 561978, at *12; Golinski v. U.S. Office of Personnel Mgmt., 824 F. Supp. 2d 968, 982 n.5 (N.D. Cal. 2012) (citing Loving, 388 U.S. at 12; Turner, 482 U.S. at 94-96; Zablocki, 434 U.S. at 383-86), appeal dismissed by agreement of the parties, 724 F.3d 1048 (9th Cir. 2013); see also In re Marriage

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Cases, 183 P.3d 384, 420-21 n.33 (Cal. 2008) (Turner “did not characterize the constitutional right at issue as ‘the right to inmate marriage.’”). C. The marriage discrimination statute is not justified by any sufficiently important governmental interest

Because Indiana’s marriage discrimination statute burdens the plaintiffs’ fundamental right to marry, the State must show that the intrusion “is supported by sufficiently important state interests and is closely tailored to effectuate only those interests.” Zablocki, 434 U.S. at 388. In keeping with the principles above, district courts resolving similar challenges post-Windsor have concluded that this heightened scrutiny is appropriate. See Bostic, 2014 WL 561978, at *12-14; Kitchen, 961 F. Supp. 2d at 1197-1200; cf. DeBoer, 2014 WL 1100794, at *10 n.5 (resolving case exclusively under equal protection principles but noting that “the Supreme Court has repeatedly recognized marriage as a fundamental right”).3 No constitutionally sufficient reason explains why the plaintiffs are unfit to exercise this fundamental freedom, or why their personal choices concerning marriage and family life are not entitled to the same degree of constitutional protection as other citizens. Indeed, as courts have uniformly recognized, the exclusion of samesex couples from civil marriage is not even rational, and fails even if the most deferential level of scrutiny is applied. It is certainly not closely tailored to serve a sufficiently important state interest under heightened review.
3

Admittedly, some district courts have held that a state’s failure to recognize marriages performed out-of-state, as distinct from the failure to permit individuals to marry, does not implicate a fundamental right. See De Leon, 2014 WL 715741, at *20-21; Bourke, 2014 WL 556729, at *5. The district court in Obergefell, while recognizing that “[t]he right to remain married is . . . properly recognized as one that is a fundamental liberty interest appropriately protected by the Due Process Clause,” held intermediate scrutiny applicable to the failure to recognize out-of-state marriages. 962 F. Supp. 2d at 978-79 (emphasis omitted). These decisions stand on infirm legal footing, for the State’s failure to recognize marriages performed out-of-state is indistinguishable from its refusal to permit same-sex couples to marry in-state: in either case, same-sex couples are not and cannot be married in Indiana’s eyes. Additionally, several courts addressing similar challenges have declined to resolve the due process issue insofar as the challenged statutes were held invalid under equal protection principles. See DeBoer, 2014 WL 1100794, at *10 n.5; Tanco, 2014 WL 997525, at *5-6; Bishop, 962 F. Supp. 2d at 1295-96.

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Of course, the State has not yet articulated in this case the rationale(s) underlying Indiana Code § 31-11-1-1. However, these rationales were articulated as follows in an earlier challenge to the statute under the Indiana Constitution: The State of Indiana has a legitimate interest in encouraging opposite-sex couples to enter and remain in, as far as possible, the relatively stable institution of marriage for the sake of children who are frequently the natural result of sexual relations between a man and a woman. . . . Even accepting that many same-sex couples are successfully raising children in today’s society, these couples are not at “risk” of having random and unexpected children by virtue of their ordinary sexual activities. Morrison v. Sadler, 821 N.E.2d 15, 30 (Ind. Ct. App. 2005).4 In addition to this interest in ensuring the welfare of children, including an interest in so-called “responsible procreation,” states in the numerous cases across the country where similar statutes or constitutional amendments have been challenged have also sought to justify the bans through their interest in promoting “tradition” or the “traditional definition of marriage.” Neither of these purported interests is sufficient to justify the challenged statute. 1. Child-rearing and Responsible Procreation

4

In Morrison, the Indiana Court of Appeals upheld the statute against a challenge under Article 1, Section 1, and Article 1, Section 23 of the Indiana Constitution. The court noted that the former provision—which protects against certain burdens to “core values”— is likely not capable of judicial enforcement under Indiana law, 821 N.E.2d at 31, but that, even if it was, the “purpose for which [Article 1, Section 1] was adopted and the history of Indiana’s constitutional scheme” did not establish a “‘core value’ right to enter into government-sanctioned same-sex marriages,” id. at 33-34. To be sure, the Morrison court noted that, “[t]o the extent a ‘core value’ under the Indiana Constitution is arguably the rough equivalent to a ‘fundamental right’ under the federal or other state constitutions, most courts have not looked favorably upon finding a ‘fundamental right’ to marry a person of the same sex.” Id. at 32. As described at the outset, this statement is simply untrue post-Windsor and is of limited benefit here. Similarly, the Morrison court’s holding as it relates to Article 1, Section 23—Indiana’s “equal privileges and immunities” provision—is of limited benefit here. This provision “has been held to have a different meaning from the Federal Equal Protection Clause.” Jon Laramore, Indiana Constitutional Developments: The Wind Shifts, 36 Ind. L. Rev. 961, 964 (2003). See also Collins v. Day, 644 N.E.2d 72, 74-75 (Ind. 1994).

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Courts resolving similar claims both before and after Windsor often treat states’ interests in “child-rearing” and in “responsible procreation” as distinct from one another. See, e.g., De Leon, 2014 WL 715741, at *14-16. However, given that the purpose underlying these interests is the same—ensuring that children are raised in stable, loving environments—they are treated here in conjunction with one another. While this is no doubt a legitimate governmental interest (it is of course a compelling one), it is not one that is remotely advanced by Indiana’s prohibition on the marriages of same-sex couples. As the lives of plaintiffs A.M.-S. and L.M.-C. demonstrate, “[h]omosexual couples are as capable as other couples of raising well-adjusted children.” De Leon, 2014 WL 715741, at *14 (citations omitted); see also, e.g., Gill v. Office of Personnel Mgmt., 699 F. Supp. 2d 374, 388 (D. Mass. 2010), aff’d sub nom. Massachusetts v. U.S. Dep’t of Health & Human Servs., 682 F.3d 1 (1st Cir. 2012) (“[A] consensus has developed among the medical, psychological, and social welfare communities that children raised by gay and lesbian parents are just as likely to be well-adjusted as those raised by heterosexual parents.”). Accordingly, not only does Indiana Code § 31-11-1-1 fail to advance the State’s interest in child welfare, but it actually harms children of same-sex couples, who are denied the full range of benefits—both tangible and intangible—that come with governmental recognition of their family. recognized as much: The differentiation [in treatment] demeans the [same-sex] couple, whose moral and sexual choices the Constitution protects . . . . And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives. 133 S. Ct. at 2694. And district courts post-Windsor have uniformly reached similar The Windsor Court

conclusions. See, e.g., DeBoer, 2014 WL 1100794, at *13 (“[C]ontrary to the state defendants’ Page | 20

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contentions, the [statute] actually fosters the potential for childhood destabilization.”); De Leon, 2014 WL 715741, at *14 (“[F]ar from encouraging a stable environment for childrearing, [the statute] denies children of same-sex parents the protections and stability they would enjoy if their parents could marry.”); Obergefell, 962 F. Supp. 2d at 994-95 (“The only effect the bans have on children’s well-being is harming the children of same-sex couples who are denied the protection and stability of having parents who are legally married.”). The State may not justify its marriage discrimination statute on the basis of its interest in ensuring that children are raised in stable environments.5 This conclusion does not change if the State’s interest is phrased in terms of “encourag[ing] responsible procreation.” E.g., De Leon, 2014 WL 715741, at *15. The problem with this argument is that “procreation is not and has never been a qualification for marriage.” Id. (citing Lawrence, 539 U.S. at 605 [Scalia, J., dissenting] [recognizing that “the sterile and the elderly are allowed to marry”]). To the contrary, opposite-sex couples unable to bear children or who choose not to bear children are permitted to marry under Indiana law, and this rationale thus “threatens the legitimacy of marriages involving post-menopausal women, infertile individuals, and individuals who choose to refrain from procreating.” Id. Accordingly, courts post-Windsor
This is particularly so given that, “[e]ven assuming that children raised by same-sex couples fare worse than children raised by heterosexual married couples, [the State cannot] explain why [Indiana] law does not similarly exclude certain classes of heterosexual couples from marrying whose children persistently have had ‘sub-optimal] development outcomes.” DeBoer, 2014 WL 1100794, at *13. Indeed, in language apposite to the present case, the U.S. Supreme Court—in holding unconstitutional a statute providing that children of unwed fathers became wards of the state upon the death of their mother—rejected the argument that the statute was justified by unwed parents’ purported unfitness: Procedure by presumption is always cheaper and easier than individualized determination. But when, as here, the procedure forecloses the determinative issues of competence and care, when it explicitly disdains present realities in deference to past formalities, it needlessly risks running roughshod over the important interests of both parent and child. It therefore cannot stand. Stanley v. Illinois, 405 U.S. 645, 656-57 (1972). The presumption on which the “child-rearing rationale” rests “is the same type of unconstitutional and unfounded presumption that the Supreme Court has held ‘cannot stand.’” De Leon, 2014 WL 715741, at *15 (quoting Stanley, 405 U.S. at 653).
5

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have uniformly rejected this rationale as capable of justifying bans on marriage by same-sex couples. See also DeBoer, 2014 WL 1100794, at *13 (“The prerequisites for obtaining a marriage license under Michigan law do not include the ability to have children.”); Bostic, 2014 WL 561978, at *19 (“The ‘for-the-children’ rationale . . . fails because it would threaten the legitimacy of marriages involving post-menopausal women, infertile individuals, and individuals who choose to refrain from procreating.”); Bishop, 962 F. Supp. 2d at 1291 (“[T]here is no rational link between excluding same-sex couples from marriage and the goals of encouraging ‘responsible procreation’ among the ‘naturally procreative’ and/or steering the ‘naturally procreative’ toward marriage.”); Kitchen, 961 F. Supp. 2d at 1211 (“[A]ny relationship between [the statute] and the State’s interest in responsible procreation ‘is so attenuated as to render the distinction arbitrary or irrational.’”). Any reliance on the welfare of children to justify the challenged statute is additionally unpersuasive insofar as it is irrational to conclude that recognizing marriages between same-sex couples will have any influence whatsoever on opposite-sex marriages or the children of such marriages. Marriage is simply not a zero-sum game. The Ninth Circuit put it succinctly in a since-vacated decision: “It is implausible to think that denying two men or two women the right to call themselves married could somehow bolster the stability of families headed by one man and one woman.” Perry v. Brown, 671 F.3d 1052, 1089 (9th Cir. 2012), vacated for lack of appellate standing sub nom. Hollingsworth v. Perry, 133 S. Ct. 2652 (2013). Again, courts postWindsor are uniform in reiterating these principles. See, e.g., DeBoer, 2014 WL 1100794, at *13 (“Nor does prohibiting same-sex marriage increase the number of heterosexual marriages or the number of children raised by heterosexual parents.”); De Leon, 2014 WL 715741, at *15 (“Defendants have failed to establish how recognizing a same-sex marriage can influence, if at

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all, whether heterosexual couples will marry, or how other individuals will raise their families.”); Kitchen, 961 F. Supp. 2d at 1212 (“There is no reason to believe that [the prohibition] has any effect on the choices of couples to have or raise children whether they are opposite-sex couples or same-sex couples.”). Indiana Code § 31-11-1-1, of course, does not make it more likely that a same-sex couple desiring children, or already raising children together, will change course and marry an opposite sex partner . . . . It is more likely that any potential or existing child will be raised by the samesex couple without any state-provided marital benefits and without being able to “understand the integrity and closeness of their own family and its concord with other families in their community.” Bishop, 962 F. Supp. 2d at 1293-94 (quoting Windsor, 133 S. Ct. at 2694). Although citations standing for these common-sense notions are likely unnecessary, they abound. There is no rational, let alone compelling, link between the State’s undoubtedly vital interest in promoting child welfare and its prohibition on marriages by same-sex couples. 2. Tradition

Nor may the State justify its ban on marriages between same-sex couples and the recognition of marriages between same-sex couples performed out-of-state on the basis of the fact that these marriages have not been historically recognized. After all, if this were sufficient to establish a basis for a discriminatory statute, then Windsor itself likely stands on shaky legal footing. As another district court noted pre-Windsor, the argument that the definition of marriage should remain the same for the definition’s sake is a circular argument, not a rational justification. Simply stating what has always been does not address the reasons for it. The mere fact that prior law, history, tradition, the dictionary and the Bible have defined a term does not give that definition a rational basis, it merely states what has been. Tradition, standing alone, does not provide a rational basis for the law. Simply, the “ancient lineage” of the law does not render it rational.

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Golinski, 824 F. Supp. 2d at 998-99 (internal citations omitted). Thus, “[n]either the antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it through the centuries insulates it from constitutional attack.” Williams v. Illinois, 399 U.S. 235, 239 (1970). See also, e.g., Heller v. Doe ex rel. Doe, 509 U.S. 312, 326 (1992) (“Ancient lineage of a legal concept does not give it immunity from attack for lacking a rational basis.”) (plurality opinion). Accordingly, courts post-Windsor have again uniformly rejected tradition as a permissible basis on which states may justify bans on marriages by same-sex couples. See DeBoer, 2014 WL 1100794, at *14 (“[T]he Supreme Court has held that tradition alone does not satisfy rational basis review. . . . [T]raditional notions of marriage are often enmeshed with the moral disapproval of redefining marriage to encompass same-sex relationships.”); De Leon, 2014 WL 715741, at *16 (“[T]radition, alone, cannot form a rational basis for a law.”); Bostic, 2014 WL 561978, at *15 (“[T]radition alone cannot justify denying same-sex couples the right to marry any more than it could justify Virginia’s ban on interracial marriage [at issue in Loving].”); Bourke, 2014 WL 556729, at *7 (“That Kentucky’s laws are rooted in tradition . . . cannot alone justify the infringement on individual liberties.”); Bishop, 962 F. Supp. 2d at 1291 (“Traditional exclusion of [a] disadvantaged group from state-sanctioned marriage does not itself evidence a rational link to the identified goal of promoting responsible procreation within marriage.”); Obergefell, 962 F. Supp. 2d at 994 (“[J]ust as the tradition of banning interracial marriage represented the embodiment of deeply-held prejudice and long-term racial discrimination in Loving, the same is true here with regard to Ohio’s marriage recognition bans and discrimination based on sexual orientation.”); Kitchen, 961 F. Supp. 2d at 1213 (“[T]radition alone cannot form a rational basis for a law.”). The same result must issue here.

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Indeed, any reliance by the State on “tradition” to justify the discriminatory classifications of Indiana Code § 31-11-1-1 must be viewed with skepticism for an additional reason: although Indiana has not traditionally allowed same-sex couples to marry, it has traditionally recognized lawful marriages entered in other states even if they could not be legally entered in Indiana. See Roche v. Washington, 19 Ind. 53, 1862 WL 2046, at *3 (1862) (“[T]hat marriages, valid where made, will be upheld in other states.”); see also Guevara v. Inland Steel Co., 228 Ind. 135, 140, 90 N.E.2d 347, 349 (1950) (Emmert, J., dissenting) (“The general rule is that the validity of a marriage is governed by the law of the place of celebration.”) (internal citation omitted); Gunter v. Dealer’s Transp. Co., 120 Ind. App. 409, 414, 91 N.E.2d 377, 379 (1950) (“The validity of the marriage, being governed by the law of the place of its celebration, must be recognized in Indiana as a matter of comity.”). Thus, in Mason v. Mason, 775 N.E.2d 706 (Ind. Ct. App. 2002) trans. denied, the Indiana Court of Appeals affirmed the trial court’s recognition of a marriage between first cousins that could not have been validly entered in Indiana, id. at 709, and in Gunter the same court applied Colorado law recognizing common law marriages to determine whether an Indiana resident was married upon his death, 91 N.E.2d at 413-15. Cf. Obergefell, 962 F. Supp. 2d at 985-86 (describing the differences between Ohio’s recognition of out-of-state marriages by same-sex couples and its recognition of certain oppositesex marriages [such as between minors or first cousins] entered out of state). Accordingly, for the plaintiffs who have been married out-of-state and seek recognition of that marriage by Indiana—Melody Layne and Tara Betterman, Rob MacPherson and Steven Stolen, and Scott and Rodney Moubray-Carrico—any reliance on “tradition” to justify the statute is particularly attenuated. * * *

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The marriage discrimination statute violates the Due Process Clause of the Fourteenth Amendment and summary judgment in the plaintiffs’ favor is warranted. II. Although the challenged statute is subject to heightened scrutiny under equal protection analysis, it fails even rational-basis review A. Background to equal protection analysis

“The Equal Protection Clause of the Fourteenth Amendment commands that no state shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which essentially is a directi[ve] that all persons similarly situated should be treated alike.” Vision Church v. Village of Long Grove, 468 F.3d 975, 1000 (7th Cir. 2006) (internal citation omitted). The first step in this analysis “is to identify the [defendants’] classification of groups,” which can be accomplished by showing that a statute “imposes different burdens on different classes of people.” Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 589 (9th Cir. 2008) (alteration in original) (citations omitted). There can be no doubt that the statute imposes these different burdens: under the statute, persons wishing to marry opposite-sex partners may do so, whereas persons wishing to marry same-sex partners may not. The next step in equal protection analysis is to determine the applicable level of scrutiny: If a statute or municipal ordinance classifies by race, alienage, or national origin, [courts] subject the legislative action to strict scrutiny and it will be sustained only if it is suitably tailored to serve a compelling state interest; these factors are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy. Heightened scrutiny also is appropriate when government action interferes with a person’s fundamental rights, such as freedom of speech or religion. If no suspect class or fundamental right is involved, however, [courts] employ a rational basis test to determine whether the [policy] is constitutional. Vision Church, 468 F.3d at 1000–01 (internal quotations, citations, and judicial alterations omitted). As set forth below, the plaintiffs contend that the statute is subject to strict scrutiny and that it cannot pass muster under the applicable test. However, ultimately it is not necessary Page | 26

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to resolve whether discrimination based on a person’s sexual orientation is subject to heightened scrutiny, for the statutes fails even under rational-basis review.6 B. Strict scrutiny is appropriate and the statute fails that analysis

Given the utter irrationality of the challenged statute, as described both above and below, it is not necessary for this Court to resolve definitively whether a more stringent level of scrutiny is applicable. It is. To be sure, pre-Windsor the Seventh Circuit held that discrimination based on sexual orientation warrants only rational-basis review. See Nabozny v. Podlesny, 92 F.3d 446, 454 (7th Cir. 1996). But following Windsor “there are ‘ample reasons to revisit the question of whether sexual orientation is a suspect classification.’” Obergefell, 962 F. Supp. 2d at 986 (quoting Bassett v. Snyder, 951 F. Supp. 2d 939, 945-46 (E.D. Mich. 2013)). The only circuit court to address whether heightened scrutiny is applicable post-Windsor similarly noted that “Windsor requires that we reexamine our prior precedents” and held that “heightened scrutiny applies to classifications based on sexual orientation.” SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471, 483-84 (9th Cir. 2014).7

6

Courts resolving similar challenges post-Windsor have taken different tacks with respect to the appropriate level of scrutiny under equal protection principles. The majority, however, have declined to resolve definitively whether heightened scrutiny is applicable given the fact that the prohibition on marriages by same-sex couples (or the recognition of those marriages) failed rational-basis review. See DeBoer, 2014 WL 1100794, at *11 (declining to resolve whether heightened scrutiny is applicable insofar as the statute fails rational-basis review); Tanco, 2014 WL 997525, at *6 (adopting the approach taken in Bourke and declining to resolve the applicability of heightened scrutiny); De Leon, 2014 WL 715741, at *13-14 (declining to resolve whether heightened scrutiny is applicable but finding the argument in favor of heightened scrutiny “compelling” and that the statute fails even under rational basis); Bostic, 2014 WL 561978, at *20 (declining to resolve whether heightened scrutiny is applicable insofar as the statute fails rational-basis review); Bourke, 2014 WL 556729, at *4-5 (applying rational-basis review insofar as the Windsor Court did not clearly state that the statute at issue there “implicated a fundamental right, much less significantly interfered with one”); Bishop, 962 F. Supp. 2d at 1287 (holding that heightened scrutiny is inapplicable based on circuit precedent); Obergefell, 962 F. Supp. 2d at 987-95 (holding heightened scrutiny applicable but nonetheless deciding that the statute failed even rational-basis review); Kitchen, 961 F. Supp. 2d at 1207 (holding that heightened scrutiny is inapplicable based on circuit precedent).

Post-Windsor, the only courts addressing bans on marriage by same-sex couples to squarely hold heightened scrutiny inapplicable simply determined that they were bound by pre-Windsor circuit

7

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In invalidating a similar prohibition on marriage by same-sex couples, another district court has recently described the factors that the Supreme Court looks to in order to determine whether heightened scrutiny is warranted: The Supreme Court consistently applies heightened scrutiny to laws that discriminate against a group that it considers a suspect or quasi-suspect classification, i.e. one that has experienced a “history of purposeful unequal treatment or [has] been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities.” Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 313 (1976). In addition to looking at a history of discrimination, courts also consider whether the characteristics that distinguish the class indicate a typical class member’s ability to contribute to society, [City of] Cleburne [v. Cleburne Living Ctr.], 473 U.S. [432,] 440-41 [(1985)]; whether the distinguishing characteristic is “immutable” or beyond the group member’s control, Lyng v. Castillo, 477 U.S. 635, 638 (1986); and whether the group is “a minority or politically powerless,” Bowen v. Gilliard, 483 U.S. 587, 602 (1987). De Leon, 2014 WL 715741, at *12; see also Obergefell, 962 F. Supp. 2d at 987. Of these four (4) factors, the first two (2) are the most important. See Cleburne, 473 U.S. at 442 n.10; Obergefell, 962 F. Supp. 2d at 987. Viewed through the proper lens, heightened scrutiny is applicable to discriminatory classifications based on sexual orientation. underscores this conclusion. First, “homosexuals have suffered a long history of discrimination.” De Leon, 2014 WL 715741, at *12. The Lawrence Court recognized as much when it acknowledged that “for centuries there have been powerful voices to condemn homosexual conduct as immoral” and that “lesbians and gay men have suffered a long history of discrimination and condemnation.” 539 Windsor only

precedent. See Bishop, 962 F. Supp. 2d at 1287; Kitchen, 961 F. Supp. 2d at 1207; cf. Bourke, 2014 WL 556729, at *4 (without definitively resolving the issue, noting that circuit precedent “would seem to limit the Court’s independent assessment of the question [concerning the applicability of heightened scrutiny]” but that “[i]t would be no surprise . . . were the [circuit court] to reconsider its view” and that “a number of reasons suggest that gay and lesbian individuals do constitute a suspect class”) (Bourke’s analysis was also adopted in Tanco, 2014 WL 997525, at *6). Suffice it to say that this Court need not follow circuit precedent that has been cast into doubt by an intervening decision from the Supreme Court. See, e.g., Clark v. United States, 360 Fed. App’x 660, 662 (7th Cir. 2009); Moffat v. Broyles, 288 F.3d 978, 980 (7th Cir. 2002).

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U.S. at 571. And the legal disabilities to which persons have been subjected as a result of their sexual orientation are beyond doubt: they have been aptly described by other courts and do not require lengthy recitation here. See De Leon, 2014 WL 715741, at *12; Obergefell, 962 F. Supp. 2d at 987-88. Second, sexual orientation has no bearing on persons’ ability to contribute to society. The Second Circuit recognized as much in Windsor itself, see 699 F.3d 169, 182 (2d Cir. 2012) (“There are some distinguishing characteristics, such as age or mental handicap, that may arguably inhibit an individual’s ability to contribute to society, at least in some respect. But homosexuality is not one of them.”), aff’d, 133 S. Ct. 2675 (2013), and the lower courts postWindsor are in acquiescence, see, e.g., De Leon, 2014 WL 715741, at *13; Obergefell, 962 F. Supp. 2d at 988-89. Third, an individual’s sexual orientation is immutable. As the Ninth Circuit observed before Windsor, Sexual orientation and sexual identity are immutable; they are so fundamental to one’s identity that a person should not be required to abandon them. Many social and behavioral scientists generally believe that sexual orientation is set in place at an early age. Hernandez-Montiel v. I.N.S., 225 F.3d 1084, 1093 (9th Cir. 2000) (internal quotation and citations omitted), overruled on other grounds by Thomas v. Gonzales, 409 F.3d 1177 (9th Cir. 2005). See also, e.g., Gay Rights Coalition of Georgetown Univ. Law Ctr. v. Georgetown Univ., 536 A.2d 1, 34-35 (D.C. 1987) (“Homosexuality is as deeply ingrained as heterosexuality. Exclusive homosexuality probably is so deeply ingrained that one should not attempt or expect to change it. Rather, it would probably make far more sense simply to recognize it as a basic component of a person’s core identity.”) (internal alterations, quotation, and citation omitted). Again, courts addressing similar challenges to this one agree. See De Leon, 2014 WL 715741, at *13 (“[S]exual orientation is so fundamental to a person’s identity that one ought not be forced to Page | 29

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choose between one’s sexual orientation and one’s rights as an individual—even if one could make a choice.”); Obergefell, 962 F. Supp. 2d at 991 (“Under any definition of immutability, sexual orientation clearly qualifies.”). And finally, lesbians and gay men “lack[] sufficient political power to protect themselves against discriminatory laws.” De Leon, 2014 WL 715741, at *13. In assessing this factor, it is not enough for the State to argue that bans on same-sex marriage are less popular today than they were even a few years ago; after all, when sex-based discrimination was held to require heightened scrutiny in 1973, see Frontiero v. Richardson, 411 U.S. 677, 682 (1973) (plurality opinion), not only did women of course comprise approximately half of the population but multiple federal laws protecting women had already been enacted, see Obergefell, 962 F. Supp. 2d at 990 (describing Title VII and the Equal Pay Act). Rather, it is enough that, “[d]ue to the history of prejudice that gay men, lesbians, and bisexuals have faced, they are lacking in the political power to expand their civil rights.” Id. at 989. See also De Leon, 2014 WL 715741, at *13 (“[T]he history of same-sex marriage bans across the nation illustrates the historical lack of political power possessed by gays and lesbians.”). Accordingly, all factors to which the Supreme Court looks in assessing whether heightened scrutiny is appropriate weigh in favor of employing this level of review. Indeed, while the Windsor Court did not articulate the standard that it was applying, its approach was “antithetical to the very concept of rational basis review.” SmithKline Beecham Corp., 740 F.3d at 482. Indiana Code § 31-11-1-1 does not pass muster under the requisite heightened scrutiny. It is unconstitutional. C. Even if heightened scrutiny were not appropriate, the challenged statute fails rational-basis review

Finally, even were heightened scrutiny not applicable to discriminatory classifications based on sexual orientation, the statute still must be rationally related to a legitimate Page | 30

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governmental objective. There are numerous examples where the Supreme Court has found that governmental action fails to satisfy this deferential standard. See, e.g., Romer v. Evans, 517 U.S. 620, 626-35 (1996); Cleburne, 473 U.S. at 447-50; Plyler v. Doe, 457 U.S. 202, 223-30 (1982); U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 533-38 (1973). And, while courts resolving challenges similar to this one post-Windsor have taken different approaches with respect to the proper level of review, they have uniformly held statutes prohibiting marriages by same-sex couples and the recognition of marriages by same-sex couples performed out-of-state to fail even under the rational-basis test.8 For the same reasons that the statute cannot be justified under due process analysis, see supra Part I.C, the manner in which it discriminates between opposite-sex couples and same-sex couples is not rationally related to a legitimate state interest and the statute is also unconstitutional under equal protections principles. Conclusion There are no contested issues of material fact in this case and the law is with the plaintiffs. Indiana Code § 31-11-1-1 is unconstitutional as violating both due process and equal protection and a permanent injunction must issue enjoining the statute and enjoining the defendants to remove any and all barriers to the recognition of the marriages of plaintiffs Fujii, Layne, Betterman, the Moubray-Carricos, MacPherson, and Stolen and all barriers to the
See, e.g., DeBoer, 2014 WL 1100794, at *11 (declining to resolve whether heightened scrutiny is applicable insofar as the statute fails rational-basis review); Tanco, 2014 WL 997525, at *6 (adopting the approach taken in Bourke and declining to resolve the applicability of heightened scrutiny); De Leon, 2014 WL 715741, at *13-14 (declining to resolve whether heightened scrutiny is applicable but finding the argument in favor of heightened scrutiny “compelling” and that the statute fails even under rational basis); Bostic, 2014 WL 561978, at *20 (declining to resolve whether heightened scrutiny is applicable insofar as the statute fails rational-basis review); Bourke, 2014 WL 556729, at *4-5 (applying rationalbasis review insofar as the Windsor Court did not clearly state that the statute at issue there “implicated a fundamental right, much less significantly interfered with one”); Bishop, 962 F. Supp. 2d at 1287 (holding that heightened scrutiny is inapplicable based on circuit precedent); Obergefell, 962 F. Supp. 2d at 987-95 (holding heightened scrutiny applicable but nonetheless deciding that the statute failed even rational-basis review); Kitchen, 961 F. Supp. 2d at 1207 (holding that heightened scrutiny is inapplicable based on circuit precedent).
8

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marriage in Indiana of plaintiffs Hasty, Vallero, Wehrle and Miller.

/s/ Kenneth J. Falk Kenneth J. Falk No. 6777-49 /s/ Gavin M. Rose Gavin M. Rose No. 26565-53 ACLU of Indiana 1031 E. Washington St. Indianapolis, IN 46202 317/635-4059 fax: 317/635-4105 kfalk@aclu-in.org grose@aclu-in.org James Esseks, Pro Hac Vice Chase Strangio, Pro Hac Vice American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 212/549.2627 fax: 212/549-2650 jesseks@aclu.org cstrangio@aclu.org Counsel for plaintiffs Wehrle, Miller, Hasty, Vallero, MacPherson, Stolen, A.M.-S.

/s/ Sean C. Lemieux Sean C. Lemieux No. 16778-49 Lemieux Law 23 E. 39th St. Indianapolis, IN 46205 317/985-5809 fax: 866/686-2901 sean@lemieuxlawoffices.com Counsel for plaintiffs Fujii, Layne, Betterman, L.M.-C., Scott and Rodney MoubrayCarrico

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Certificate of Service I certify that a copy of the foregoing was filed electronically on this 11th day of April, 2014. The following parties will be served by operation of the Court’s electronic system. Thomas M. Fisher Solicitor General Office of the Attorney General tom.fisher@atg.in.gov Thomas A. Hardin thardin@shineandhardin.com I further certify that a copy of the foregoing was served on the below named persons by first-class U.S. postage, pre-paid, on this 11th day of April, 2014. Clerk, Hamilton County, Indiana One Hamilton County Square Suite 157 Noblesville, IN 46060 /s/ Gavin M. Rose Gavin M. Rose Attorney at Law

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