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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION OFFICER PAMELA LEE, et al., Plaintiffs, -vsMIKE PENCE, in his official capacity as Governor of the State of Indiana, et al., Defendants. ) ) ) ) ) CAUSE NO: 1:14-cv-00406-RLY-TAB ) ) ) ) )
MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION Come now Plaintiffs, by counsel, and hereby submit their Memorandum in Support of Motion for Preliminary Injunction. I. FACTUAL BACKGROUND Plaintiffs are four same-sex couples who entered into legal same-sex marriages in states that provide for such marriages, and who have been denied recognition of these marriages by the 1977 Police Officers’ and Firefighters’ Pension and Disability Fund (“Pension Fund”), an instrument of the State of Indiana. Plaintiffs were unable to be married in the State of Indiana because of Ind. Code § 31-11-1-1(a), which provides that “[o]nly a female may marry a male. Only a male may marry a female.” One member of each couple serves or has served as a public safety officer in the State of Indiana. They have collectively served Indiana in this capacity for nearly a century. The four public safety officer Plaintiffs participate in the Pension Fund. The Pension Fund refuses to recognize the participating Plaintiffs’ lawful spouses as “spouses” for Pension Fund purposes. The Pension Fund claims that it is prohibited from
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granting such recognition because of I.C. 31-11-1-1. Section (b) of that statute provides that “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 will henceforth be referred to as Indiana’s “Marriage Non-Recognition Law,” or “Non-Recognition Law”). Plaintiffs ask the Court to preliminarily enjoin the State of Indiana from refusing to recognize the participating Plaintiffs’ lawfully wedded spouses as “spouses” for Pension Fund purposes. II. LEGAL STANDARD As a threshold matter, a party seeking a preliminary injunction must demonstrate (1) some likelihood of succeeding on the merits, and (2) that it has “no adequate remedy at law” and will suffer “irreparable harm” if preliminary relief is denied. Abbott Labs. v. Mead Johnson & Co., 971 F.2d 6, 11 (7th Cir. 1992) (citations omitted). The Seventh Circuit has recognized that “the threshold” to satisfy the first element is “low. It is enough that the plaintiff’s chances are better than negligible[.]” Brunswick Corp. v. Jones, 784 F.2d 271, 275 (7th Cir. 1986) (internal quotations and citations omitted); accord Michigan v. U.S. Army Corps of Eng’rs, 667 F.3d 765, 782 (7th Cir. 2011) (acknowledging “the often-repeated rule that the threshold for establishing likelihood of success is low”). If the moving party clears these thresholds, the Court must then consider: (3) “the irreparable harm the non-moving party will suffer if preliminary relief is granted, balancing that harm against the irreparable harm to the moving party if relief is denied; and (4) the public interest, meaning the consequences of granting or denying the injunction to non-parties.” Abbott Labs., 971 F.2d at 11-12. When considering whether a plaintiff has satisfied her burden, the Seventh Circuit employs a “sliding scale approach,” whereby “the more likely it is the plaintiff will succeed -2-
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on the merits, the less the balance of irreparable harms need weigh towards its side; the less likely it is the plaintiff will succeed, the more the balance need weigh towards its side.” Kraft Foods Grp. Brands LLC v. Cracker Barrel Old Country Store, Inc., 735 F.3d 735, 740 (7th Cir. 2013) (quotation marks and citations omitted). The irreparable harm the plaintiff will suffer absent an injunction remains the most important equitable factor to consider. See Reinders Bros., Inc. v. Rain Bird E. Sales Corp., 627 F.2d 44, 52-53 (7th Cir. 1980). III. ARGUMENT Plaintiffs are entitled to a preliminary injunction. First, Plaintiffs are likely to prevail on their claim that Indiana’s Marriage Non-Recognition Law is unconstitutional under the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the U.S. Constitution. This assessment is strongly indicated by the Supreme Court’s recent decision in United States v. Windsor, 133 S. Ct. 2675, 2696 (2013), which struck down the federal government’s marriage non-recognition law, i.e., DOMA’s Section 3, which barred federal recognition of state-issued and otherwise lawful same-sex marriages. This assessment finds additional support in the growing number of federal decisions that have invalidated or otherwise cast doubt upon the constitutionality of state non-recognition laws. See, e.g., Bourke v. Beshear, 2014 WL 556729, at *11-12 (W.D. Ky. Feb. 12, 2014) (invalidating Kentucky’s ban on recognition of marriages between same-sex couples); Obergefell v. Wymyslo, 962 F. Supp. 2d 968 (S.D. Ohio 2013) (granting permanent injunction and declaratory judgment compelling Ohio to recognize valid out-of-state marriages between same-sex couples on Ohio death certificates). These decisions reflect the larger trend in post-Windsor federal case law: Since Windsor, not a single federal court to consider the matter has upheld a state ban on same-sex marriage or recognition of same-sex marriages. -3-
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Second, Plaintiffs have no adequate remedy at law and will suffer irreparable harm if the injunction does not issue because of the significant emotional, dignitary, and tangible harm caused by the State’s ongoing deprivation of their constitutional rights. Third, by requiring the State of Indiana to recognize Plaintiffs’ lawful out-of-state marriages, the State’s burden would be limited to performing a few minor administrative tasks that are no different from those it routinely performs when recognizing the out-of-state marriages of different-sex couples. Fourth and lastly, preliminarily enjoining Indiana from enforcing its odious and unconstitutional Non-Recognition Law can only promote the public interest, since the public interest is served by vindicating constitutional rights. A. Likelihood of prevailing
Plaintiffs incorporate by reference the legal and constitutional equal protection and due process arguments set forth in their Memorandum in Support of their Motion for Summary Judgment (Doc. #28), filed earlier today, as if fully set forth herein. B. Plaintiffs have no adequate remedy at law and will suffer irreparable harm if preliminary relief is denied.
By refusing to recognize Plaintiffs’ valid out-of-state marriages, Indiana deprives them of their due process and equal protection rights under the federal constitution. This by itself -- Indiana’s ongoing deprivation of Plaintiffs’ constitutional rights -- constitutes irreparable injury. See, e.g., Elrod v. Burns, 427 U.S. 347, 373 (1976) (preliminary injunction granted in suit by public employee who alleged being threatened with dismissal for not joining superior’s political party in violation of First Amendment rights, as “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes
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irreparable injury”). Indeed, “when an alleged deprivation of a constitutional right is involved,” reports a leading treatise, “most courts hold that no further showing of irreparable injury is necessary.” Moore, 11A Federal Practice and Procedure at § 2948.1 (2d ed.). This rule applies to the constitutional rights that states deny by refusing to recognize valid out-of-state marriages. Obergefell v. Wymyslo, supra (granting motion to permanently enjoin Ohio officials from refusing to recognize plaintiffs’ valid same-sex out-of-state marriages). Yet the simple assertion that Indiana deprives Plaintiffs of constitutional rights does not adequately convey the irreparable harm that Indiana has visited upon Plaintiffs and will continue to do so absent a preliminary injunction. By treating lawfully-wedded individuals as legal strangers under its laws, Indiana denigrates their human dignity and civic equality. By publicizing this unequal treatment and pronouncing it lawful, Indiana stigmatizes Plaintiffs and invites others to view them as second-class citizens. By denying the existence of the central reality of Plaintiffs’ lives -- their marriages -- Indiana threatens to unmoor them from themselves. See Exhibits A-D, attached to Plaintiffs’ Memorandum in Support of Motion for Summary Judgment. As a practical matter, Indiana’s Non-Recognition Law disrupts Plaintiffs’ lives in myriad ways. “When couples—including same-sex couples—enter into marriage, it generally involves long-term plans for how they will organize their finances, property, and family lives.” Obergefell v. Wymyslo, 962 F. Supp. 2d at 979. The Non-Recognition Law creates uncertainty as to the non-participating spouse’s property interest in the state pension, which hampers Plaintiffs’ ability to make provisions for surviving spouses. No such uncertainty exists for the non-participating spouse in same-sex out-of-state marriages. This -5-
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uncertainty over property distribution and estate planning causes plaintiffs significant emotional distress, in addition to forcing them to incur additional costs to deal with the uncertainty. C. Plaintiffs will continue to suffer grievously if a preliminary injunction is denied, while Defendants will incur negligible harm if a preliminary injunction is granted. As explained above, Indiana’s refusal to recognize Plaintiffs’ respective marriages insults their human dignity, impugns their civic equality, and effaces their core identities. Indiana, by contrast, will suffer negligible harm if required to recognize (or enjoined from refusing to recognize) Plaintiffs’ valid out-of-state marriages. This harm would consist of a handful of familiar administrative tasks, namely, the tasks it routinely performs when it recognizes the valid out-of-state marriages of different-sex couples. D. A Preliminary Injunction Will Promote the Public Interest.
Enjoining enforcement of Indiana’s Non-Recognition Law will serve the public interest by vindicating constitutional rights, respecting human dignity, promoting civic equality, validating the commitments that spouses in same-sex marriages make to one another, and reducing confusion over entitlements to state pension benefits. WHEREFORE, Plaintiffs respectfully request that the Court expeditiously schedule this matter for a hearing on Plaintiffs’ motion for a preliminary injunction, consolidate that hearing with trial on the merits pursuant to FED. R. CIV. P. 65(a)(2), and preliminarily enjoin Defendants from refusing to recognize Plaintiffs’ marriage for purposes of establishing their rights under the Pension Fund.
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/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: firstname.lastname@example.org
/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: email@example.com
/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: firstname.lastname@example.org
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CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing Memorandum in Support of Plaintiffs’ Motion for Preliminary Injunction 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 E-mail: email@example.com
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