1:14-cv-00406 #28

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, ) ) -vs- ) ) MIKE 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 ) Case No: 1:14- capacities as members of the Board of ) cv-406-RLY-TAB Trustees of the Indiana Public Retirement ) System; and STEVE RUSSO, in his ) official capacity as Executive Director ) of the Indiana Public Retirement ) System, ) ) Defendants. )

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

Case 1:14-cv-00406-RLY-TAB Document 28 Filed 04/21/14 Page 1 of 26 PageID #: 162

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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

1 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-year-

old 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/wp-

content/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


http://www.firefightercancersupport.org/wp-content/uploads/2013/06/fighting_fires_fighting_cancer.pdf

http://www.firefightercancersupport.org/wp-content/uploads/2013/06/fighting_fires_fighting_cancer.pdf

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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 officer-

member 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

http://www.in.gov/inprs/files/77_fund_glance_membership.pdf) . 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).

2 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).


http://www.in.gov/inprs/files/77_fund_glance_membership.pdf

http://www.in.gov/inprs/policeandfirefighters.htm

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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 Non-

Recognition Law to define who can be a surviving spouse. I.C. § 31-11-1-1 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.

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


http://scholar.google.com/scholar_case?case=18058011438707911451&q=schwarzenegger+same+sex&hl=en&as_sdt=3,50



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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 Non-

Recognition Law fails the least-demanding review, rational basis, because the Non-

Recognition 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,

3 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 (HJR-

3), 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 quasi-

protected 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

4 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).


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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 Non-

Recognition 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


19

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


20

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


21

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

5 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.


22

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


23

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 Non-

Recognition 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


24

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) enforcing the Marriage Non-Recognition Law as set forth in

I.C. § 31-11-1-1(b);

(b) denying same-sex couples validly married in other jurisdictions

the rights, protections and benefits of marriage provided under Indiana law; and

4) Grants all other relief just and proper in the premises.

6 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)


http://www.nytimes.com/2008/05/06/us/06loving.html

25

Respectfully submitted,

/s/Karen Celestino-Horseman /s/William R. Groth Karen Celestino-Horseman, #15762-49 William R. Groth, # 7325-49 Of Counsel, AUSTIN & JONES, P.C. FILLENWARTH DENNERLINE GROTH & One N. Pennsylvania St., Ste. 220 & TOWE, LLP Indianapolis, IN 46204 429 E. Vermont St., Ste. 200 Tel: (317) 632-5633 Indianapolis, IN 46202 Fax: (317) 630-1040 Tel: (317) 353-9363 E-mail: [email protected] Fax: (317) 351-7232 E-mail: [email protected] /s/Mark W. Sniderma /s/Kathleen M. Sweeney Mark W. Sniderman, # 26599-49 Kathleen M. Sweeney, # 2192-49 SNIDERMAN NGUYEN LLP SWEENEY LAW GROUP, LLC 47 S. Meridian St., Ste. 400 141 E. Washington St., Ste. 225 Indianapolis, IN 46204 Indianapolis, IN 46204 Tel: (317) 361-4700 Tel: (317) 491-1050 Fax: (317) 464-5111 Fax: (317) 491-1043 E-mail: [email protected] E-mail: [email protected]


mailto:[email protected]




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: [email protected]

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


Documents

1:14-cv-00406 #28