Same-sex marriage in Indiana
|Legal recognition of
*Not yet in effect
Indiana has restricted marriage to male-female couples by statute since 1986. By legislation passed in 1997, it denied recognition to same-sex relationships established in other jurisdictions. A lawsuit challenging the state's refusal to grant marriage licenses to same-sex couples, Baskin v. Bogan, won a favorable ruling from the U.S. District Court for the Southern District of Indiana on June 25, 2014. Until the U.S. Court of Appeals for the Seventh Circuit granted an emergency stay of the district court's ruling on June 27, most Indiana counties issued marriage licenses to same-sex couples. The Court of Appeals affirmed the district court's ruling in Baskin on September 4. A ruling in Bowling v. Pence stated that the state must recognize same-sex marriages performed out-of-state and the decision was stayed until the Circuit ruled on the merits in similar cases. It also stated that the ruling would remain stayed if the circuit court stayed its decision in the related cases.
A law enacted in 1997 forbids the recognition of same-sex marriages established in jurisdictions outside Indiana.
A lawsuit brought in 2002 by the ACLU on behalf of 3 same-sex couples seeking marriage rights and challenging a 1986 law that limited marriages to male-female couples failed in Marion County superior court in May 2003. The judge ruled that restricting marriage to different-sex couples "promotes the state's interest in encouraging procreation to occur in a context where both biological parents are present to raise the child." Two of the couples had formed civil unions in Vermont in 2000. After that ruling was upheld by the court of appeals in January 2005, when the third couple had formed a Vermont civil union and one couple had married in Canada as well, the plaintiffs decided not to appeal to the state Supreme Court to avoid a negative outcome there that might influence other state courts.
On November 26, 2012, Indiana Equality Action published a study researched by law students from the LGBT Project at the Indiana University Maurer School of Law titled "More Than Just a Couple: 614 Reasons Why Marriage Equality Matters in Indiana." The study detailed the rights and responsibilities of civil marriage found in 614 laws in the Indiana Code. It said that these laws show that marriage discrimination in the state not only denies many legal rights to same-sex couples but also denies the public protection from conflicts of interest from activities that are prohibited for opposite-sex married couples but not for same-sex couples.
On September 9, 2014 Wisconsin (joint by Indiana) asked the U.S. Supreme Court to uphold their respective bans on gay marriage. The move comes after the Chicago-based 7th U.S. Circuit Court of Appeals ruled last week that both state bans were invalid.The new petitions mean there are now gay marriage cases concerning five states pending at the high court. The others are Virginia, Utah and Oklahoma. 
Soon thereafter, the US Appeals court put same-sex marriages on hold in Indiana while the state appeals its ruling overturning a ban on gay marriages to the U.S. Supreme Court decides whether it will hear the case or decide the appeal.
Five same-sex marriage lawsuits were filed in the U.S. District Court for the Southern District of Indiana in March 2014: Love v. Pence, Baskin v. Bogan, Fujii v. Pence, Bowling v. Pence, and Lee v. Pence.
Baskin v. Bogan
Baskin v. Bogan was filed in the Southern District of Indiana on March 14, 2014, by Lambda Legal on behalf on three same-sex couples, all women. Defendants are Indiana Attorney General Greg Zoeller and three county clerks, with one of the county clerks, Penny Bogan, in her official capacity, as the first-named defendant. It took precedence over the other Indiana marriage cases, because one of the plaintiffs was terminally ill with ovarian cancer, though the case of her and her partner was soon separated from that of the other plaintiffs.
On June 25, 2014, Richard L. Young ruled with respect to the remaining plaintiffs in Baskin, as well as the cases of Fujii and Lee. He found in favor of the plaintiff couples, granted them summary judgment and striking down Indiana's ban on same-sex marriage. He also removed Indiana Governor Mike Pence from the lawsuit. He issued no stay and Indiana clerks began issuing marriage licenses to same-sex couples the day of the ruling. The Seventh Circuit brought license issuance to a halt on June 27.
The Seventh Circuit consolidated Baskin and its companion cases with a similar Wisconsin case, Wolf v. Walker. It heard oral arguments on August 26. On September 4, the Seventh Circuit, in a unanimous opinion authored by Judge Richard Posner, upheld the district court's decision. On September 15, the Seventh Circuit granted a motion for a stay of ruling, to be in effect until the case is resolved at the Supreme Court.
Love v. Pence
Love v. Pence was filed on March 7, 2014. Judge Young dismissed Love v. Pence for lack of subject-matter jurisdiction on June 25, 2014, because the only named defendant was Indiana Governor Mike Pence, who cannot, he wrote, "issue executive decrees telling other elected officials how to do their jobs when it comes to laws affecting marriage." Judge Young reinstated that part of the suit concerned with the recognition of marriages from other jurisdictions on September 16, citing the governor's memos directing state officials how to respond to other court decisions on the issue of same-sex marriage.
Bowling v. Pence
The plaintiffs in Bowling v. Pence raised only the question of Indiana's recognition of same-sex marriages from other jurisdictions, not the state's refusal to grant marriage licenses to same-sex couples. One plaintiff couple was married in Iowa in 2011. A third plaintiff sought to dissolve her marriage established elsewhere. Judge Young issued his ruling in Bowling v. Pence on August 19, repeating the logic of his earlier decision in finding that the state's refusal to recognize same-sex marriages unconstitutional. Though he had previously dismissed Love v. Pence after accepting the arguments of Governor Pence that the governor of Indiana lacks authority over the enforcement of the state's ban, Young reversed himself, citing actions Pence took following the decision to Baskin. Young noted that the governor, contrary to his earlier claims, had issued memos to state agencies instructing them to disregard the July 25 decision in Baskin. Pence had written on July 7 that Indiana's ban "is in full force and effect and executive branch agencies are to execute their functions as though the U.S. District Court Order of June 25, 2014 had not been issued."  In his Bowling decision, Young wrote: "The memoranda issued by the Governor clearly contradict his prior representations to the court". He called the governor's earlier statements a "bold misrepresentation". He wrote that his acceptance of Pence as defendant "is not based on the governor's general duty to enforce the laws. It is based on his specific ability to command the executive branch regarding the law." He commented: "The court, after witnessing the Governor do what he claimed he could not do, reverses course and finds him to be a proper party to such lawsuits. The court wishes to reiterate that it finds the Governor's prior representations contradicting such authority to be, at a minimum, troubling." Young stayed enforcement of his decision and the state announced plans to appeal.
The ruling was stayed until the Seventh Circuit ruled on the merits in similar cases. It also stated that the ruling would remain stayed if the Circuit Court stayed its decision in the related cases.
Constitutional Amendment Proposals
Since 2004, there has been an annual effort on behalf of a constitutional amendment banning same-sex marriage in Indiana. In 2010, the proposal passed the Senate 38-10, but the House of Representatives, which had a Democratic majority, took no action, failing even to schedule a hearing on the legislation.
Only a marriage between one man and one woman shall be valid or recognized as a marriage in Indiana. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.
The approval of an identical amendment by both houses during the 2013-2014 legislative session is required to place the amendment on the state ballot in November 2014. In December 2012, Gov. Mitch Daniels, without taking a position on the proposed amendment, said that business leaders had expressed concern that it would restrict their policies toward same-sex couples. He said: "They wouldn't want their ability to offer benefits and that sort of thing limited. They think it's fair. They think it's important at least in case of some of their employees." On October 28, 2013, Indiana University announced its opposition to the proposed amendment. In November 2013, legislative leaders announced that the legislature would address the amendment in its next session. House Speaker Brian Bosma, a proponent of the measure, said that "This is not the most important issue facing us by far. We have to deal with the issue with dignity and respect...and bring this 12-year discussion to a conclusion." On December 4, the six Catholic bishops of Indiana issued a statement that, without referencing the legislation, reiterated their position that marriage is "the intimate communion of life and love between one man and one woman."
The language of the joint resolution was introduced in the 2014 legislature as HJR3 on January 9. A companion bill was also introduced that provided clarifying language directing that the proposed constitutional amendment would ban same-sex marriages and civil unions but not domestic partnerships. Bosma said it was aimed at reassuring universities and localities that the benefits they provide employees under the designation domestic partners would not be affected by the adoption of the constitutional amendment, though others in the legislature disputed whether the language of the bill, if adopted, could control the interpretation of the constitutional amendment. The House Judiciary Committee held a hearing on the proposed amendment on January 13 but took no vote. On January 21 Bosma moved the proposed amendment to the Elections and Apportionment Committee. On January 22, that committee approved the proposed amendment by a vote of 9 to 3 with one absence. On January 27, the Indiana House voted 52-43, with 29 Democrats and 23 Republicans in favor, to remove the second sentence from the legislation and on January 28, the House approved the shortened version in a 57-40 vote. On February 10, the Senate Rules Committee approved the identical one-sentence version in an 8-4 vote, and the Senate approved that version in a 32-17 vote on February 17. The text adopted was:
Only a marriage between one man and one woman shall be valid or recognized as a marriage in Indiana.
If approved by both houses of the legislature in another session, that language can be presented to the voters no sooner than November 2016.
Several polls have asked Indiana residents whether they favor or oppose a constitutional amendment banning same-sex marriage.
|For Ban on Same-Sex Marriage||Against Ban on Same-Sex Marriage||Undecided|
|WISH-TV/Ball State University||October 8–21, 2013||< 600||± 4.8%||38.1%||57.5%||4.4%|
|WPA Opinion Research||September 24–25, 2013||504||± 4.4%||62%||33%||6%|
|Bellwether Research||September 17–19, 2013||800||± 3.5%||45%||48%||7%|
|Bellwether Research||April 18–21, 2013||600||± 4%||50%||46%||7%|
|Hoosier Survey||November 12–24, 2012||?||± 4.5%||38%||54%||8%|
|Howey/DePauw Poll||October 28–30, 2012||?||± ?||48%||45%||7%|
|Greenberg Quinlan Rosner||March 10–13, 2011||?||± ?||43%||47%||7%|
A November 2012 poll, taken by the Bowen Center for Public Affairs at Ball State University and WISH-TV/Ball, found that 45% of Hoosiers support same-sex marriage, 45% opposing it, and 10% have no opinion. It also found that 55% of Hoosiers support civil unions.
A September 2013 poll, taken by Bellwether Research & Consulting, found that that 73% of Hoosiers supported the legal recognition of same-sex couples, with 35% supporting same-sex marriage, 38% supporting civil unions or partnerships but not marriage, and 28% favoring no legal recognition.
A November 2013 poll, taken by WISH-TV/Ball, found that 48% of Hoosiers support same-sex marriage, 46% oppose it, and 6% have no opinion.
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- Poll finds Indiana residents split on gay marriage
- IN Ballot Bellwether Research for Freedom Indiana (Sept. 2013)
- WISH-TV/Ball State Hoosier Survey shows growing opposition to marriage amendment