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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION OFFICER PAMELA LEE, CANDACE BATTEN-LEE, OFFICER TERESA WELBORN, ELIZABETH J. PIETTE, BATALLION CHIEF RUTH MORRISON, MARTHA LEVERETT, SERGEANT KAREN VAUGHN-KAJMOWICZ, TAMMY VAUGHN-KAJMOWICZ and J.S.V., T.S.V. and T.R.V., BY THEIR PARENTS AND NEXT FRIENDS, SERGEANT KAREN VAUGHN-KAJMOWICZ and TAMMY VAUGHN-KAJMOWICZ Plaintiffs, -vsMIKE PENCE, in his official capacity as Governor of the State of Indiana; BRIAN ABBOTT, CHRIS ATKINS, KEN COCHRAN, STEVE DANIELS, JODI GOLDEN, MICHAEL PINKHAM, KYLE ROSEBROUGH and BRET SWANSON, in their official capacities as members of the Board of Trustees of the Indiana Public Retirement System; and STEVE RUSSO, in his official capacity as Executive Director of the Indiana Public Retirement System, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No: 1:14) cv-406-RLY-TAB ) ) ) ) ) ) )
PLAINTIFFS’ BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT I. INTRODUCTION
Plaintiffs are entitled to summary judgment because the Defendants have violated the Equal Protection and Due Process clauses of the Fourteenth
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Amendment to the United States Constitution. Plaintiffs consist of four same-sex couples lawfully married in states other than Indiana. 1 For the purposes of this litigation, the Plaintiffs do not ask the Court to order the State of Indiana to issue marriage licenses to the four couples, who have been lawfully wed in other states. Plaintiffs ask only that Indiana recognize their out-of-state marriages as possessing the same validity as out-of-state marriages between persons of different sexes. Plaintiffs ask the Court to negate Indiana’s presumed power to treat their marriages as null and void. In short, Plaintiffs ask the Court to vindicate their right to remain married. Plaintiffs, all legally married in other states, are the victims of the discriminatory intent and effect of I.C. § 31-11-1-1 (referred to hereinafter as the “Marriage Non-Recognition Law” or the “Non-Recognition Law”). The Plaintiffs’ right to have their marriages recognized by Defendants, i.e., to stay married while in the State of Indiana, is a fundamental interest protected by the Equal Protection and Due Process Clauses. The State may only burden the exercise of Plaintiffs’ right to remain married when it has a compelling interest, and by means narrowly tailored to achieve that end. But there is no compelling or even substantial interest here. Indeed, Plaintiffs defy the Defendants to identify a single legitimate state interest that is rationally related to the Marriage Non-Recognition Law. II. STATEMENT OF MATERIAL FACTS NOT IN DISPUTE
The Plaintiffs include four married same-sex couples who ask that their lawful
The Plaintiffs consist of eleven individuals: four couples and the three children of one of these couples. For simplicity, we shall use the term “Plaintiffs” to refer exclusively to the four couples. These children, J.S.V., T.S.V. and T.R.V., have suffered and shall suffer some of the same injuries and humiliation as the married couples themselves.
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marriages solemnized outside of Indiana be recognized by the Indiana Public Retirement System ("INPRS"), which administers the 1977 Police Officers' and Firefighters' Pension and Disability Fund ("Pension Fund"). One member of each of the four couples is either currently working as a police officer or is a retired firefighter. A. Officer Pamela Lee and Candace Batten-Lee
Officer Pamela Lee and Candace Batten-Lee have been together as a couple for nearly 26 years. (Ex. A, Aff. of Officer Lee and Candace Batten-Lee, ¶ 2). On October 25, 2013, Officer Lee and Candace were married in San Diego, California. (Id.) On January 27, 2014, Office Lee completed the Application for Beneficiary Designation ("Lee Application"), to designate Candace as her spouse. (Id., ¶ 4) The Pension Fund has never responded to Officer Lee's application. (Ex. A, ¶ 4) Officer Lee served on active-duty for three years in the United States Army as a military police officer. (Ex. A, ¶ 5) Upon receiving an honorable discharge from the military, Officer Lee worked for three years as a police officer in Kansas City, Missouri before joining the Indianapolis Police Department in Indianapolis, Indiana which ultimately merged into the Indianapolis Metropolitan Police Department ("IMPD"). (Ex. A, ¶ 5) Officer Lee is a patrol officer and her duties include taking radio runs, serving traffic warrants and participating in narcotics investigations. (Id., ¶ 6) She wears a bulletproof vest everyday to work. Id. Candace worked for 15 years as a payroll supervisor before her employer closed its doors. (Ex. A, ¶ 9) At that time, Candace's mother had been diagnosed
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with early onset dementia and Officer Lee and Candace decided that Candace would stay at home to care for her mother and to provide daycare for her nieces. Id. Candace states that "if I had to keep regular hours in an office, I do not know how I would be able to care for my mother." Id. Officer Lee is the primary source of income for the couple. Id. Officer Lee says that her stress and worry are increased because she knows that if anything happens to her, the State of Indiana will not take care of Candace financially as it will the spouses of officers who are married to persons of the opposite sex. (Ex. A, ¶ 11) Officer Lee worries that "[i]f anything happens to me, Candace will be so upset that the last thing she will be able to handle is fight a battle over money yet she is going to need that money." (Ex. A, ¶ 12) B. Officer Teresa Welborn and Elizabeth Piette
For nearly 26 years, Officer Teresa Welborn has been a police officer with the IMPD. (Ex. B, Aff. of Teresa Welborn and Elizabeth Piette, ¶ 4) Officer Welborn and Elizabeth Piette were together five years before marrying in Hawaii on December 13, 2013. (Ex. B, ¶ 2) On February 20, 2014, Officer Welborn submitted her Application for Beneficiary Designation to the Pension Fund for the designation of Elizabeth as her spouse-beneficiary. (Id., ¶ 3) The Pension Fund has never formally responded. (Ex. B, ¶ 3) Officer Welborn is a patrol officer. (Id., ¶ 4) She wears a bulletproof vest to work every day as she patrols the streets alone, handling emergency runs and accident calls. (Id.) In January 2014, Officer Welborn was awarded the Medal of Valor for
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apprehending and arresting a man who was stabbing his pregnant girlfriend in the abdomen. (Id., ¶ 5) In the 1990's, Officer Welborn received the Medal of Bravery and was inducted into the Red Cross Hall of Fame after she and other officers ran into a burning building to save the lives of those in the building. (Id., ¶ 6) For the last 17 years, Elizabeth has worked within the IU Health system as a nurse, most recently as a nurse practitioner providing palliative care for the seriously ill. (Ex. B, ¶ 9) Officer Welborn is willing to serve and protect the people of Indianapolis, but does not think it is fair that the State of Indiana provides financial security to opposite-sex spouses of officers who are killed in the line of duty or who die in service, as it refuses to provide Elizabeth the same financial security. (Id., ¶ 10) C. Sergeant Karen Vaughn-Kajmowicz and Tammy Vaughn-Kajmowicz.
Sergeant Karen Vaughn-Kajmowicz has served over 17 years as an officer with the Evansville Police Department ("EPD") in Evansville, Indiana. (Ex. C, Aff. of Sergeant Vaughn-Kajmowicz and Tammy Vaughn-Kajmowicz, ¶ 3) Sergeant Vaughn-Kajmowicz and Tammy Vaughn-Kajmowicz began dating in 2002 and married on October 18, 2013 in Iowa. (Ex. C, ¶ 2) After they were married, Sergeant Vaughn-Kajmowicz sought to have Tammy named as her spouse-beneficiary for purposes of the Pension Fund. (Id., ¶ 4) Sergeant Vaughn-Kajmowicz was informed that Tammy could not be treated as a spouse for purposes of the Pension Fund. (Id., ¶ 5) Sergeant Vaughn-Kajmowicz is assigned to the narcotics division of the EPD. (Id., ¶ 7) She assists with state and federal investigations, handles undercover drug
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buys, and monitors wiretaps and GPS. (Id.) Doing undercover work and serving warrants requires Sergeant Vaughn Kajmowicz to wear plain clothes. (Id., ¶ 8) This usually means that when she is dealing with suspected drug dealers, or must blend into an area so no one knows she is a police officer, she foregoes the bulky bulletproof vest that can be detected under everyday street clothes. (Id.) Sergeant Vaughn-Kajmowicz and Tammy are the parents of twin three-yearold girls and a six-year-old son. (Id., ¶ 10) The couple decided, due to Sergeant Vaughn-Kajmowicz’s schedule, that Tammy would be a stay-at-home mother. (Ex. C, ¶ 10) Sergeant Vaughn-Kajmowicz is the sole breadwinner for her family. (Id.) Both were the legal parents of their children and committed to their family and each other before they were able to marry. (Ex. C, ¶ 11). Even so, having married, in their eyes, formally established them as a family. Id. Their son "asked if we were married and we said yes because it was important to him but at the time we could not marry and did not want to tell him that." (Id., ¶ 12) Sergeant Vaughn-Kajmowicz is very concerned about what will happen to her family if she dies in the line of duty or in service as a police officer: Choosing to have Tammy stay home was a decision we made together because we thought it was important to our children to have one parent constantly there. My coworkers who are married to persons of the opposite sex have made the same decision and they did so knowing that if anything happened to them their opposite sex spouse and children would be provided for. If I should die while a police officer or in the line of duty, Tammy will not receive the spousal benefit provided by the Pension Fund and this worries me because she will be alone and left to take care of our children without the same financial stability afforded my fellow officers in the same situation but who are married to persons of the opposite sex.
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(Ex. C, ¶ 15) D. Battalion Chief Ruth Morrison and Martha Leverett.
Battalion Chief Ruth Morrison retired from the Indianapolis Fire Department (“IFD”) in December 2013 after 27 years of service. (Ex. D, Aff. of Battalion Chief Ruth Morrison and Martha Leverett, ¶ 7) Chief Morrison and Martha Leverett knew each other for 19 years before marrying in Montgomery County, Maryland on September 11, 2013. (Ex. D, ¶ 2) In September or October 2014, Chief Morrison applied for her retirement benefits and requested that Candace be designated as the chief's spouse. (Id., ¶ 3) Chief Morrison was informed that the Pension Fund would not recognize Candace as the chief's spouse for purposes of the Pension Fund because of the Non-Recognition Law. (Id., ¶ 4) Chief Morrison rose to the highest merit rank possible within the IFD. (Ex. D, ¶ 7). She graduated first in her class
from the fire academy and first in her paramedic class. (Id.) As a firefighter, Chief Morrison actively participated in fighting fires, including entering burning buildings to rescue people. (Id.) Studies have also shown that firefighters have an increased chance of cancer due to their exposure to carcinogens at fire scenes. (Id., ¶ 8, and see
http://www.firefightercancersupport.org/wpcontent/uploads/2013/06/fighting_fires_fighting_cancer.pdf ("it's widely accepted
based on ... studies that fire fighters are at greater risk of getting cancer because of their exposure to carcinogens"), last accessed March 18, 2014.) Martha endured years of worrying about Chief Morrison being injured or killed on the job and now, is worried
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about the work-related illnesses that might strike Chief Morrison as a result of her breathing in carcinogens. (Ex. D, ¶ 9) In turn, Chief Morrison worries about how Martha will be cared for if Chief Morrison should suffer an illness and then die. (Ex. D, ¶ 10) E. The Pension Fund.
Officers Lee and Welborn, Sergeant Vaughn-Kajmowicz and Chief Morrison are all members of the Pension Fund, which is administered by the Board of Trustees of the INPRS. The Pension Fund is governed by I.C. § 36-8-8, et seq. If an officermember dies in the line of duty, his or her surviving spouse is entitled to receive for life a monthly benefit of 100% of the deceased officer's calculated monthly retirement benefit. See I.C. § 36-8-8-14.1 and Survivor Benefits, pp. 1-2 (accessible online at http://www.in.gov/inprs/77fundmbrhandbooksurvivorbenefits.htm). 2 A surviving spouse of an officer-member who dies in the line of duty will also be paid a lump sum of $150,000.00, tax free. See I.C. § 36-8-8-20(c); Survivor Benefits, p. 2. If a Pension Fund member dies while on active duty but not in the line of duty, then the surviving spouse will receive a monthly benefit equaling 60% of the deceased's calculated monthly benefit. See I.C. § 36-8-8-13.8(c); and 1977 Fund At A Glance, p. 2 (accessible online at If a retired
firefighter dies while receiving the monthly benefit, the "surviving spouse is entitled to a monthly benefit." I.C. § 36-8-8-13.8(c).
A handbook and other information regarding the Pension Fund can be found at: http://www.in.gov/inprs/policeandfirefighters.htm (last visited April 17, 2014).
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While I.C. § 36-8-8, et seq., refers to the "surviving spouse," the term is not defined within the Indiana Code. INPRS takes the position that "[e]ligible survivors for 1977 Fund members are set by law and are not subject to personal choice." (1977 Fund At A Glance, p. 2) Instead, INPRS relies upon Indiana’s Marriage NonRecognition Law to define who can be a surviving spouse. I.C. § 31-11-1-1 provides: (a) (b) Only a female may marry a male. Only a male may marry a female. 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.
Thus INPRS takes the position that, by law, the lawfully executed marriages of the Plaintiffs are void and the members’ spouses do not qualify as "spouses" for the purposes of the Pension Fund. III. ARGUMENT
“When any society says that I cannot marry a certain person, that society has cut off a segment of my freedom.” - Rev. Dr. Martin Luther King Jr. A. Summary Judgment Standard.
Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 325, 327 (1986). A fact is material when, under the substantive governing law, it affects the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party moving for summary judgment bears the initial burden of
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establishing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. When the moving party carries its initial burden of production, the nonmoving party cannot “rest upon mere allegation or denials of his pleading.” Anderson, 477 U.S. at 256. Rather, the non-movant must “go beyond the pleadings and by her own
affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324 (internal quotations omitted); Anderson, 477 U.S. at 256. A “genuine issue” of material fact arises if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. Disputes over irrelevant, immaterial or unnecessary facts will not preclude a grant of summary judgment. The court must view the evidence in the light most favorable to the nonmoving party, and draw all reasonable inferences in favor of the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). B. The Right To Marry Is a Fundamental Right.
The right to have one’s marriage recognized by state authorities is inherent in the right to marry; without the right of recognition, the right to marry is meaningless. The right to marry, of course, is a fundamental right which is deeply entrenched in American jurisprudence, and which necessarily entails the right to remain married and have one’s marriage recognized. See, e.g., Turner v. Safley, 482 U.S. 78, 95 (1987) (“[t]he decision to marry is a fundamental right” and marriages are "expressions of emotional support and public commitment"); Zablocki v. Redhail, 434 U.S. 374, 383-84 (1988) (marriage is “of fundamental importance for all individuals” and “the most important
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relation in life [and] the foundation of the family and of society”); Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-40 (1974) ("[t]his Court has 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"); Loving v. Virginia, 388 U.S. 1, 12 (1967) (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"). States have the right to define and regulate marriage, but such state laws must “respect the constitutional rights of persons.” U.S. v. Windsor, 133 S.Ct. 2675, 2691 (2013). A state’s interest in regulating marriage, subject to these constitutional
guarantees, “stems from the understanding that marriage is more than a routine classification for purposes of certain statutory benefits.” Id., at 2692. C. The Non-Recognition Law Violates the Equal Protection Clause.
The Non-Recognition Law violates the Equal Protection Clause, which prohibits any State from “deny[ing] to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. In the present case, Plaintiffs maintain that the Non-Recognition Law violates the Equal Protection Clause under either 1) a strict scrutiny or 2) an intermediate scrutiny analysis because Indiana has a long history of respecting out-of-state marriages if valid in the place of celebration even if violative of Indiana law. McPeek v. McCardle, 888 N.E.2d 171, 175 (Ind. 2008) (“The validity of a marriage depends upon the law of the place where it occurs”); Mason v. Mason, 775 N.E.2d 706 (Ind. Ct. App. 2002) (recognizing a Tennessee
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marriage between first cousins even though the marriage violated Indiana law). Such disparate treatment of Plaintiffs’ respective out-of-state same-sex marriages violates the Equal Protection Clause. Henry v. Himes, ___ F. Supp. 2d ___, 2014 WL 1418395, at *13-16 (S.D. Ohio April 14, 2014) (holding Ohio’s marriage recognition bans facially unconstitutional as violative of due process and equal protection); Obergefell v. Wymyslo, 962 F. Supp. 2d 968, 983-84 (S.D. Ohio 2013) (enjoining enforcement of Ohio’s bans on recognition of other states’ lawful same-sex marriages as applied to the named plaintiffs); Bourke v. Beshear, ___ F. Supp. 2d ___, 2014 WL 556729 (W.D. Ky. 2014) (striking down as violative of equal protection Kentucky’s constitutional and statutory provisions denying to same-sex couples married outside of Kentucky recognition of their marriages); Tanco v. Haslam, ___ F. Supp. 2d ___, 2014 WL 997525 (W.D. Tenn. 2014) (preliminarily enjoining Tennessee’s non-recognition laws under the Equal Protection Clause). But Plaintiffs also contend that the NonRecognition Law fails the least-demanding review, rational basis, because the NonRecognition Law is irrational and advances no legitimate State interest. 1. The Non-Recognition Law Fails Rational Basis Scrutiny Because it Advances no Legitimate State Interest.
Even if this Court does not apply heightened scrutiny, the Non-Recognition Law still fails to pass constitutional muster under the most deferential standard of review: rational basis. As the Supreme Court explained in Romer v. Evans, 517 U.S. 620 (1996), even under rational basis review a federal court must “insist on knowing the relation between the classification adopted and the object to be attained.” Id., at 632. Thus, a state “may not rely on a classification whose relationship to an asserted
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goal is so attenuated as to render the distinction arbitrary or irrational.” City of Cleburne, Tex. v. Cleburne Living Center, Inc., 473 U.S. 432, 446-47 (1985). The State, through its considerable power to establish and enforce its domestic relations laws, cannot “impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages.” Windsor, 133 S.Ct. at 2693. 3 Even if the State offers an ostensibly legitimate purpose, the Court must examine the challenged statute’s connection to that purpose to assess whether that connection is too “attenuated” to rationally advance the asserted governmental interest. City of Cleburne, 473 U.S. at 446; Eisenstadt v. Baird, 405 U.S. 438, 448-49 (1972) (striking down ban on distribution of contraceptives to unmarried persons because of the marginal rational relationship to state’s proffered objective of deterring premarital sex). As the Supreme Court has explained, by requiring a
rational relationship between a legitimate legislative objective and the means, “we ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law.” Romer, 517 U.S. at 633. Requiring the State to recognize Plaintiffs’ lawful out-of-state marriages would not harm the State’s interest in promoting the establishment of families conducive to raising children. There is an overwhelming scientific consensus, based on decades of peer-reviewed scientific research, that children raised by same-sex couples are just as well adjusted as those raised by heterosexual couples. See Obergefell,
As the Seventh Circuit has observed, “the rational purpose test is no longer as toothless as it once seemed.” Bell v. Duperrault, 367 F.3d 703, 710 (7th Cir. 2004) (Posner, J., concurring) (citing, inter alia, Romer, 517 U.S. at 634-35 ).
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962 F. Supp. 2d at 995 n. 20 (citing, inter alia, Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 980 (N.D. Cal. 2011) (finding that children raised by same-sex parents no less likely to be healthy, successful and well-adjusted then those raised of opposite-sex parents); DeBoer v. Snyder, ___ F. Supp. 2d ___, 2014 WL 1100794 (E.D. Mich. Mar. 21, 2014) at *13-14 (after reviewing the academic literature and hearing expert testimony, holding that there is “no logical connection between same-sex marriage and providing children with an ‘optimal environment’ or achieving ‘optimal outcomes’”). Indeed, the Windsor defendants offered the same “false conjectures about child welfare…and the Supreme Court found those arguments so insubstantial that it did not deign to acknowledge them.” Henry v. Himes, 2014 WL 1418395 (S.D. Ohio April 14, 2014), at *16. Furthermore, Indiana itself already recognizes the
suitability of same-sex couples to raise children, as it permits persons in both opposite-sex and same-sex relationships to adopt and raise children. In the Matter of Infant Girl W. v. Morgan Co. Office of Family & Children, 845 N.E.2d 229 (Ind. Ct. App. 2006), trans. denied 860 N.E.2d 585 (Ind. 2006). Instead of promoting suitable
conditions for raising children, the Non-Recognition Law harms the children of same-sex couples by confusing and humiliating them. See Windsor, 133 S. Ct. at 2694. “Discriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.” Romer, 517 U.S. at 633 (quoting Louisville Gas & Elec. v. Coleman, 277 U.S. 32, 37-38 (1928)). When the unusual character of the discrimination the Non-
Recognition Law represents is viewed in context with the lack of a reasonable nexus
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between the Law and any conceivable State objective, the conclusion is virtually inescapable: the Non-Recognition Law cannot be upheld under any level of constitutional scrutiny. Indeed, if Indiana were truly concerned about the welfare of the children of same-sex married couples or promoting the institution of marriage, it would not have enacted a statute which damages, humiliates and stigmatizes same-sex married couples, and harms the children of those couples by denying them the protection and stability of having legally-married parents. Like every other federal court to have considered similar laws in the aftermath of Windsor, this Court should hold that Indiana’s Non-Recognition Law violates the Equal Protection Clause, for the State has living within its borders two groups of similarly-situated citizens whom the law classifies differently: validly married opposite-sex couples whom the State favors, and validly married same-sex couples, whom the State disfavors. 2. The Non-Recognition Law Creates a Suspect Classification, Thereby Requiring Strict Scrutiny Review.
A statutory classification which discriminates against persons who are part of a group that is considered to be a suspect or quasi-suspect class, such as race or national origin, is subject to strict scrutiny, Fisher v. Univ. of Texas, 133 S. Ct. 2411, 2417-18 (2013), because such classifications are “more likely to reflect . . . prejudice than legitimate public concerns.” Palmore v. Sidoti, 466 U.S. 429, 432 (1984). A suspect class is defined as one that has experienced “a history of purposeful unequal treatment,” Mass. Bd. of Retirement v. Murgia, 427 U.S. 307, 313 (1976); has defining characteristics that bear “no relation to the individual’s ability to participate in and
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contribute to society,” City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. at 440-41; exhibits “obvious, immutable, or distinguishing characteristics that define them as a discrete group,” Lyng v. Castillo, 477 U.S. 635, 638 (1986); and constitutes a minority. Bowen v. Gilliard, 483 U.S. 587, 602 (1987). In the present case, the class of same-sex married couples is a suspect class because gays and lesbians in Indiana have experienced a history of purposeful unequal treatment and are politically disfavored. Indeed, one look no further to reach this conclusion than the legislative activity during the recently-concluded session of the Indiana General Assembly, including legislative efforts to constitutionalize the Non-Recognition Law through the enactment of a constitutional amendment (HJR3), and the absence of state law protecting gays and lesbians from discrimination in employment, housing, education and public accommodations. Moreover, sexual orientation clearly does not prevent gays and lesbians from participating and contributing to society; is immutable, and gays and lesbians comprise a minority of the population, without a meaningful degree of political power. See, e.g., Perry v. Schwarzenegger, 704 F. Supp. 2d at 943-44, 950-52 (discussing the credibility of conflicting expert testimony on the issues of political powerlessness). To be sure, the Seventh Circuit has previously held that homosexuals are not a suspect or quasi-suspect class. Schroeder v. Hamilton School Dist., 282 F.3d 946, 950-51 (7th Cir. 2002). However, in doing so it relied upon Bowers v. Hardwick, 478 U.S. 186 (1986), which was explicitly overruled by Lawrence v. Texas, 539 U.S. 558 (2003), the
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year after Schroeder was decided. 4 (Bowers was “not correct when it was decided and is not correct today.” Lawrence, 539 U.S. at 578.) Subsequently, two circuit courts of appeal and an ever-increasing number of district courts have held that gays and lesbians are a protected class and that strict or some other form of heightened scrutiny applies to equal protection challenges to laws establishing classifications based upon sexual orientation. SmithKline Beecham Corp. v. Abbott Laboratories, 740 F.3d 471, 481 (9th Cir. 2014); Windsor v. U.S., 699 F.3d 169, 181-85 (2nd Cir. 2012) (applying heightened scrutiny after determining that homosexuals are a quasiprotected class); Obergefell v. Wymyslo, 962 F. Supp. 2d at 987 (same); Pedersen v. Office of Personnel Management, 881 F. Supp. 2d 294, 310-33 (D. Conn. 2012) (same); Golinski v. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 982-990 (N.D. Cal. 2012) (same); De Leon v. Perry, supra, 2014 WL 715741, at *12-14 (W.D. Tex. 2014) (same). Thus, Indiana’s Marriage Non-Recognition Law should be required to withstand strict scrutiny to survive Plaintiffs’ constitutional challenge. 3. The Non-Recognition Law Is Not Narrowly Tailored To Achieve a Compelling Government Interest.
Strict scrutiny is a demanding burden which requires the government to demonstrate with clarity that its purpose or interest in maintaining and enforcing a law is “both constitutionally permissible and substantial, and that its use of the classification is necessary…to the accomplishment of its purpose.” Fisher, 133 S.Ct. at 2418 (quoting Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 305 (1978) (opinion of
The 7th Circuit predicted in 1996 that Romer would overrule Bowers’ equal protection holding. Nabozny v. Podlesny, 92 F.3d 446, 458 n 12 (7th Cir. 1996). 17
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Powell, J.)). Strict scrutiny is a “searching examination” and requires the government to prove that the reasons for the classification are “clearly identified and unquestionably legitimate,” Fisher, at 2419 (quoting Richmond v. J.A. Croson Co., 488 U.S. 496, 505 (1989), and “narrowly tailored to further compelling governmental interests.” Id. (quoting Grutter v. Bollinger, 539 U.S. 306, 326 (2003)). Defendants are not able to meet this heavy burden to justify their continued enforcement of the Non-Recognition Law, because they can identify no compelling interest advanced by it. Indeed, no such justification exists. Himes, 2014 WL at *12. For that matter, there is no important state interest, or even a legitimate state interest, promoted by the Non-Recognition Law. Rather than advancing any legitimate State interest, Indiana’s NonRecognition Law directly affects and harms J.S.V., T.S.V. and T.R.V. by subjecting them to harms and stigmas that the children of opposite-sex parents are not forced to endure, solely because Indiana disapproves of their parents’ marriage. See Windsor, 133 S. Ct. at 2694. This disparate treatment of children based on the State’s disapproval of their parents’ status and conduct violates the Equal Protection Clause. Henry v. Himes, supra, 2014 WL at *15 (citing inter alia Plyler v. Doe, 457 U.S. 202, 220 (1982) (striking down statute prohibiting undocumented immigrant children from attending public schools because it “imposes its discriminatory burden on the basis of legal characteristic over which the children can have little control”); Matthews v. Lucas, 427 US. 495, 505 (1976) (“visiting condemnation upon the child in order to express society’s disapproval of the parents’ liaisons ‘is illogical and unjust’”); Weber v. Aetna
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Cas. Sur. Co., 406 U.S. 164, 175 (1972) (“imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing”). It is not enough for the State to justify its denial of recognition to Plaintiffs’ respective marriages, and to deny to their children the benefits of having two married parents, solely because it declares their same-sex marriage to be “void.” Rather, the Court should weigh Indiana’s asserted interests against Plaintiffs’ liberty interest in the ongoing vitality of their respective marriages. If Indiana believes that same-sex marriages are somehow harmful to or destructive of the social order, the Court should require Defendants to provide persuasive, objective evidence before allowing the State to interfere with those established relationships. A state cannot subject gays and lesbians to “special disabilit[ies]” that are “so discontinuous with the reasons offered” that they are “inexplicable by anything but animus.” City of Chicago v. Shalala, 189 F.3d 598, 608 (7th Cir. 1999) (quoting Romer, 517 U.S. at 632). D. The Non-Recognition Law Violates the Due Process Clause.
The Non-Recognition Law is also unconstitutional because it violates the Due Process Clause of the Fourteenth Amendment, which 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 Due Process Clause guarantees more than just fair process: it protects individual liberty against certain government actions regardless of how they were conceived or implemented, and it provides “heightened protection against government interference with certain fundamental rights and liberty
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interests.” Washington v. Glucksberg, 521 U.S. 702, 719-721, (1997) (citing Daniels v. Williams, 474 U.S. 327, 331 (1986); Reno v. Flores, 507 U.S. 292, 301-02 (1993), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992)). The fundamental rights and liberties particularly protected by the Due Process clause are those that are “deeply rooted in our Nation’s history, legal traditions and practices.” Washington v. Glucksberg, 521 U.S. at 710 (citing Snyder v. Massachusetts, 291 U.S. 97, 105 (1934) (government allowed to regulate unless regulation “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental”). Alternatively, fundamental rights are also those rights that are “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed.” Palko v. Connecticut, 302 U.S. 319, 325, 326 (1937). The fundamental right asserted here – the right to remain married, to not be deprived of their already-existing legal marriages and attendant benefits and protections – is deeply rooted in, and premised upon, American history, legal traditions and practices, and is also implicit in the concept of ordered liberty. See Obergefell, 962 F. Supp. 2d at 978; Henry v. Himes, 2014 WL 1418395 at *7-8; and Sanders, The Constitutional Right to (Keep Your) Same-Sex Marriage, 110 MICH. L. REV. 1421 (2011). This right of marriage recognition has already been addressed squarely in the federal courts: the Supreme Court has held that the idea of “being married in one state and unmarried in another is one of the most perplexing and distressing complication[s] in the domestic relations of … citizens.” Obergefell, id., at 978 (citing
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Williams v. North Carolina, 317 U.S. 287, 299 (1942)). 5 The right to remain married is “a fundamental liberty interest appropriately protected by the Due Process Clause of the United States Constitution.” Id. “When a state effectively terminates the marriage of a same-sex couple married in another jurisdiction, it intrudes into the realm of private marital, family, and intimate relations specifically protected by the Supreme Court.” Henry v. Himes, at *9; Obergefell, id. at 979. The Supreme Court held that the federal government’s refusal to recognize a marital relationship solemnized by a state was injurious and demeaning. Windsor, 133 S. Ct. at 2694 (“the differentiation demeans the couple, whose moral and sexual choices the Constitution protects ... and whose relationship the State has sought to dignify.”). This differential treatment “humiliates tens of thousands of children now being raised by same-sex couples.” Id. The Due Process Clause’s substantive protections require that a court examine burdens upon fundamental rights with strict scrutiny: the exercise of a fundamental
Because the Plaintiffs assert a right to remain married and claim the statute is unconstitutional both facially and as applied, the Supreme Court’s summary dismissal in Baker v. Nelson, 409 U.S. 810 (1972), is irrelevant. In Baker, a state law banning same-sex marriage was affirmed by the Minnesota State Supreme Court, and subsequently appealed to the United States Supreme Court. The appeal was dismissed “for want of a substantial federal question.” Baker, 409 U.S. 810. Lower courts may not come to opposite conclusions on the precise issues presented and necessarily decided by such dismissals, “except when doctrinal developments indicate otherwise.” Perry v. Brown, 671 F.3d 1052, 1082 n. 14 (9th Cir. 2012) (internal citations omitted). But “no more may be read into” such decisions than “was essential to sustain the judgment.” Id. Here, just as in Perry v. Brown, the Plaintiffs do not present the question of the constitutionality of a blanket ban on same-sex marriage. Id. Instead, “a wholly different question” is at issue: whether the Plaintiffs have the right to remain legally married, or whether the Defendants can strip away a right and status that Plaintiffs had previously enjoyed. Id. This precise question was not at issue in Baker, and is instead controlled by other doctrinal developments such as Windsor, and Lawrence, which postdate Baker by 41 years and 31 years, respectively.
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right can only be restricted when there is a compelling state interest, and the means are narrowly tailored to achieve the ends. Zablocki, 434 U.S. at 388; and Carey, 431 U.S. at 686. Some courts have also applied an intermediate or heightened scrutiny test, “when the government attempts to intrude upon the personal and private lives of homosexuals.” Witt v. Department of Air Force, 527 F.3d 806, 819 (9th Cir. 2008) (“the government must advance an important governmental interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest.”) (relying upon Lawrence v. Texas, 539 U.S. 558 (2003); Sell v. United States, 539 U.S. 166 (2003); and Aptheker v. Sec’y of State, 378 U.S. 500 (1964)). Finally, if there is neither a fundamental liberty interest at issue, or an intrusion upon the personal and private lives of those in a same-sex marriage, any burden must at the very least pass a rational basis test: the legislation or state action at issue cannot restrict non-fundamental rights unless it is rationally related to a legitimate state interest. Romer, 517 U.S. at 631, citing Heller v. Doe, 509 U.S. 312, 319-20 (1993). The right claimed here – the right to remain married – is fundamental, but even if it were not, the statute cannot survive constitutional muster, for it furthers no legitimate state interest, let alone a compelling state interest, or an important one: and thus is infirm under either a strict scrutiny, intermediate or a rational basis approach. This result is dictated by the Supreme Court’s holding in Windsor, upon both Equal Protection and Due Process grounds, that the federal government could not refuse to recognize a valid same-sex marriage. Windsor, 133 S.Ct. at 2691. Defendants can
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assert no compelling, important or even legitimate state interest to justify this burden on the fundamental rights of Plaintiffs. For all the reasons discussed supra in Section III(C), then, the Non-Recognition Law also violates the Due Process Clause. In Obergefell, the court, applying an intermediate scrutiny test, examined the purported state interests in Ohio’s same-sex marriage recognition ban. The State claimed it had an interest in achieving: the citizens’ right to define marriage through a democratic process; avoiding judicial intrusion on what had traditionally been a legislative function; approaching social change with deliberation and due care; safeguarding the religious rights and belief of others; and preserving the traditional definition of marriage. The court found none of these availing: instead it held they were “vague, speculative, and unsubstantiated state interests” that were thoroughly insufficient to warrant the intrusion upon the legally married same-sex couples. Obergefell, 962 F. Supp. 2d at 981. But even if this Court applied only the rational basis test, the NonRecognition Law would still fail: Perry demonstrated that such marriage bans cannot withstand any level of scrutiny because, at root, they simply are not rationally related to any legitimate state interest. So here is the bottom line: any interests advanced on behalf of the statute are irrelevant or immaterial to the classifications drawn by it: this law “simply conflicts with the guarantees of the Fourteenth Amendment.” Perry, 704 F. Supp. 2d at 1002. IV. CONCLUSION
“Mr. Cohen, tell the court I love my wife, and it is just unfair that I can’t live with her in
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Virginia.” – Richard Loving. 6 For the foregoing reasons, there are no genuine issues of material fact. The Constitution and fundamental fairness dictate that Plaintiffs are entitled to judgment as a matter of law pursuant to FED. R. CIV. P. 56. On this date, Plaintiffs have also filed a motion for a permanent injunction along with a supporting brief. WHEREFORE, Plaintiffs, by counsel, respectfully request that a judgment and permanent injunction be entered that: 1) Declares the Marriage Non-Recognition Law as set forth in I.C. § 31-
11-1-1(b) unconstitutional under the Equal Protection and Due Process Clauses of the Fourteenth Amendment of the U.S. Constitution; 2) Permanently enjoins INPRS and the Pension Fund from refusing to
recognize the same-sex marriages of the Plaintiffs and all other same-sex marriages of police officers and firefighters who are active members of the Pension Fund and who have validly entered into marriage in other states; 3) Permanently enjoins the State of Indiana from: (a) I.C. § 31-11-1-1(b); (b) denying same-sex couples validly married in other jurisdictions enforcing the Marriage Non-Recognition Law as set forth in
the rights, protections and benefits of marriage provided under Indiana law; and 4) Grants all other relief just and proper in the premises.
Douglas Martin, “Mildred Loving, Who Battled Ban on Mixed-Race Marriage, Dies at 68,” New York Times, May 6, 2008, p. B7; and see http://www.nytimes.com/2008/05/06/us/06loving.html (last accessed April 18, 2014) 24
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Respectfully submitted, /s/Karen Celestino-Horseman Karen Celestino-Horseman, #15762-49 Of Counsel, AUSTIN & JONES, P.C. One N. Pennsylvania St., Ste. 220 Indianapolis, IN 46204 Tel: (317) 632-5633 Fax: (317) 630-1040 E-mail: Karen@kchorseman.com /s/William R. Groth William R. Groth, # 7325-49 FILLENWARTH DENNERLINE GROTH & & TOWE, LLP 429 E. Vermont St., Ste. 200 Indianapolis, IN 46202 Tel: (317) 353-9363 Fax: (317) 351-7232 E-mail: email@example.com
/s/Mark W. Sniderma Mark W. Sniderman, # 26599-49 SNIDERMAN NGUYEN LLP 47 S. Meridian St., Ste. 400 Indianapolis, IN 46204 Tel: (317) 361-4700 Fax: (317) 464-5111 E-mail: firstname.lastname@example.org
/s/Kathleen M. Sweeney Kathleen M. Sweeney, # 2192-49 SWEENEY LAW GROUP, LLC 141 E. Washington St., Ste. 225 Indianapolis, IN 46204 Tel: (317) 491-1050 Fax: (317) 491-1043 E-mail: email@example.com
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CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing Plaintiff’s Brief in Support of Motion for Summary Judgment was filed electronically on the 21st day of April, 2014. Notice of this filing will be sent to the following counsel by operation of the Court’s electronic filing system. Parties and counsel may access this filing through the Court’s System. Thomas M. Fisher Solicitor General OFFICE OF THE ATTORNEY GENERAL 302 W. Washington St., IGCS 5th Floor Indianapolis, IN 46204-2770 Email: Tom.Fisher@atg.in.gov s/ William R. Groth William R. Groth FILLENWARTH DENNERLINE GROTH & & TOWE, LLP 429 E. Vermont St., Ste. 200 Indianapolis, IN 46202 Tel: (317) 353-9363 Fax: (317) 351-7232
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