Same-sex marriage in Indiana

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Same-sex marriage in Indiana was performed in most of Indiana's counties for three days in June 2014. It was previously prohibited by state statutes, which were declared unconstitutional in the U.S. District Court for the Southern District of Indiana in the case of Baskin v. Bogan. The U.S. Court of Appeals for the Seventh Circuit granted an emergency stay of the district court's ruling, pending appeal.

Same-sex marriage[edit]

Statute[edit]

A law enacted in 1997 forbids the recognition of same-sex marriages established in jurisdictions outside Indiana.[1]

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.[1] After that ruling was upheld by the court of appeals in January 2005,[2] 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.[3]

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."[4] 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.[5]

On December 23, 2013, the state Court of Appeals ruled that Indiana's law banning same-sex marriage cannot be used to invalidate a marriage if one spouse later changes his or her gender identity.[6]

Baskin v. Bogan[edit]

Baskin v. Bogan
USDC-seal.gif
No. 1:14-CV-0355
United States District Court for the Southern District of Indiana
Full case name Marilyn Baskin and Esther Fuller; et. al,
Plaintiffs,
v.
Penny Bogan, in her official capacity as Boone County Clerk; et. al,
Defendants.
*

*Decided with Fujii v. Pence and Lee v. Pence, No. 1:14-CV-0404 and 1:14-CV-0406.
Date decided June 25, 2014
Judge sitting Richard L. Young, U.S.D.J.
Case history
Prior actions Interlocutory appeal of injunction lodged sub nom. Baskin v. Zoeller, No. 14-2037 (7th Cir. May 9, 2014), preliminary injunction granted, 2014 WL 1814064 (S.D. Ind. May 8, 2014), temporary restraining order granted, 2014 U.S. Dist. LEXIS 54036 (S.D. Ind. Apr. 10, 2014)
Subsequent actions Emergency stay pending appeal ordered, No. 14-2386 (7th Cir. Jun. 27, 2014)
Case holding
Indiana's ban on same-sex marriage violates both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment; the state had no rational basis for instituting such a ban.

Five same-sex marriage lawsuits were filed in the U.S. District Court for the Southern District of Indiana in March 2014. The cases are:

  • Love v. Pence, docket number 4:14-CV-0015, filed on March 7;[7]
  • Baskin v. Bogan, docket number 1:14-CV-0355, filed on March 13; and
  • Fujii v. Pence, docket number 1:14-CV-0404,
  • Bowling v. Pence, docket number 1:14-CV-0405, and
  • Lee v. Pence, docket number 1:14-CV-0406, with these three filed on March 14.[8]

The lead Indiana case on same-sex marriage is Baskin v. Bogan, filed by Lambda Legal in the Southern District of Indiana. The lawsuit was brought 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.[9] The case was assigned to Chief Judge Richard L. Young at the district court level.

Preliminary injunction[edit]

Baskin took precedence over the other Indiana marriage cases, because Nikole Quasney, one partner of one of the plaintiff couples is terminally ill with ovarian cancer. As to this one couple, the Judge Young granted immediate relief: on April 10, 2014, a 28-day duration emergency order—then after oral arguments on May 8, 2014 on a motion for summary judgment, a preliminary injunction—directing the state parties to recognize the Ms. Quasney's valid Massachusetts marriage. In doing so, the court temporarily withdrew the motion for as to the rest of the plaintiffs, with Judge Young reasoning it makes a stronger case for the terminally ill couple while also allowing the rest a resolution on the merits without causing undue confusion in case of an appeal.[10]

The state did file an interlocutory appeal of this limited injunction on May 9, 2014, and this portion of the case is currently being briefed in the U.S. Court of Appeals for the Seventh Circuit under the name of Baskin v. Zoeller, where it is docketed as No. 14-2037.[11]

District court ruling[edit]

On June 25, 2014, the U.S. district court ruled as to the case of the remaining plaintiffs in Baskin, as well as the cases of Fujii and Lee. District Judge Richard L. Young found in favor of the plaintiff couples, granting them summary judgment and striking down Indiana's ban on same-sex marriage, while removing the state's governor from the lawsuit. Judge Young commented:

In less than a year, every Federal District Court to consider the issue has reached the same conclusion in thoughtful and thorough opinions–laws prohibiting the celebration and recognition of same-sex marriages are unconstitutional ... It is clear that the fundamental right to marry shall not be deprived to some individuals based solely on the person they choose to love. In time, Americans will look at the marriage of couples such as plaintiffs, and refer to it simply as a marriage–not a same-sex marriage. These couples, when gender and sexual orientation are taken away, are in all respects like the family down the street. The Constitution demands that we treat them as such.[12]

In finding Indiana's scheme unconstitutional, the judge found that the ban violated the Fourteenth Amendment under both due process and equal protection theories; the state had no rational basis for instituting such ban:

Defendants point to the one extremely limited difference between opposite-sex and same-sex couples, the ability of the couple to naturally and unintentionally procreate, as justification to deny same-sex couples a vast array of rights. The connection between these rights and responsibilities and the ability to conceive unintentionally is too attenuated to support such a broad prohibition.[12]

The district court did not immediately issue a stay, and Indiana clerks began issuing marriage licenses to same-sex couples the day of the ruling.[13] As many as 800-1,000 marriage licenses may have issued in Indiana between the time Judge Young's opinion was filed on Wednesday, and the time the 7th Circuit brought license issuance to a halt on Friday. Many of the couples have married. It may be anticipated that their marriages will be recognized by the federal government.[14]

Dismissal of related case[edit]

Judge Young also dismissed Love v. Pence for lack of subject-matter jurisdiction on June 25, 2014. He explained that, in that specific case, the only named defendant was Indiana Governor Mike Pence, and "...the injuries of which the Plaintiffs complain are not fairly traceable to him, and cannot be redressed by him"; the governor cannot "issue executive decrees telling other elected officials how to do their jobs when it comes to laws affecting marriage."[15]

Seventh Circuit appeal and stay[edit]

The Indiana Attorney General (Greg Zoeller) appealed the U.S. District Court's decisions in Baskin v. Bogan, Fujii (appealed sub nom. Fujii v. Commissioner of the Indiana State Dep't of Revenue), and Lee (appealed sub nom. Abbott v. Lee.) On June 27, 2014, the cases were ordered, sua sponte, consolidated for purposes of briefing and disposition by the Seventh Circuit, and docketed under appellate case numbers 14-2386, 14-2387, and 14-2388 respectively. On the same day, a three-judge panel (U.S. Circuit Judges Richard Posner, Ann Claire Williams, and David F. Hamilton) of the Seventh Circuit granted an emergency stay of the prevailing same-sex marriage cases for the duration of their appeal. However, on July 2, the same panel, lead by Posner, granted a motion for one lesbian couple's marriage to be recognized immediately, due to one of the couple's fatal illness, allowing Amy Sandler and Niki Quasney to be the first same-sex couple to be married in the Hoosier state.[16]

The briefing schedule is as follows: state officials' brief due August 6, same-sex couples' brief due September 5, and the state officials' reply due September 19, 2014.[17][18]

Domestic partnerships[edit]

Map of Indiana counties and cities that offer domestic partner benefits either county-wide or in particular cities.
  City offers domestic partner benefits
  County-wide partner benefits through domestic partnership
  County or city does not offer domestic partner benefits

Currently there is no recognition of domestic partnerships at the statewide level in Indiana.

Bloomington[edit]

In 1997, Bloomington established domestic partnerships for unmarried city employees.[19]

Carmel[edit]

Carmel has established domestic partnerships for unmarried city employees.[19]

Indianapolis[edit]

On August 13, 2012, the Indianapolis City-County Council, in a 20-8 bipartisan vote in favor of establishing domestic partnerships for all married and unmarried employees of the city and county. On August 23, 2012, Mayor Greg Ballard signed it into law. On January 1, 2013, the law went into effect.[19][20]

Constitutional Amendment Proposals[edit]

Since 2004, there has been an annual effort on behalf of a constitutional amendment banning same-sex marriage in Indiana.[21] In 2010, the proposal passed the Senate 38-10,[22] but the House of Representatives, which had a Democratic majority, took no action, failing even to schedule a hearing on the legislation.[23]

In 2011, the proposal passed the House 70-26 and the Senate 40-10.[24][25] The text adopted was:[26]

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."[27] On October 28, 2013, Indiana University announced its opposition to the proposed amendment.[28] 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."[29] 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."[30]

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.[31] 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.[32] On January 22, that committee approved the proposed amendment by a vote of 9 to 3 with one absence.[33] 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[34] and on January 28, the House approved the shortened version in a 57-40 vote.[35] On February 10, the Senate Rules Committee approved the identical one-sentence version in an 8-4 vote,[36] and the Senate approved that version in a 32-17 vote on February 17.[37] 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.[38]

Public opinion[edit]

Several polls have asked Indiana residents whether they favor or oppose a constitutional amendment banning same-sex marriage.

Poll source Date(s)
administered
Sample
size
Margin of
error
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%[39] 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.[40]

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.[41]

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.[42]

See also[edit]

Notes[edit]

References[edit]

  1. ^ a b "Indiana defends state's ban on gay marriage". The Advocate. October 4, 2003. Retrieved August 20, 2013. 
  2. ^ "Court rejects challenge to Indiana's gay marriage ban". The Advocate. January 21, 2005. Retrieved August 20, 2013. 
  3. ^ "Couples won't seek appeal in Indiana gay marriage case". The Advocate. February 19, 2005. Retrieved August 20, 2013. 
  4. ^ Schneider, Mary Beth (November 26, 2012). "Ban on same-sex marriage in Indiana could open Pandora's box of legal challenges". Indiana Star. Retrieved December 14, 2012. 
  5. ^ Smith, Brandon (November 26, 2012). "Report: Marriage Amendment Impacts 600 Legal Provisions". Indiana Public Media. Retrieved December 14, 2012. 
  6. ^ "Court: Ind. gay marriage ban cannot invalidate marriages of transgender spouses". LGBTQ Nation. December 23, 2013. 
  7. ^ Gullo, Karen (March 7, 2014). "Indiana Gay-Marriage Ban Challenged by Couples in Federal Court". Bloomberg BusinessWeek. Retrieved March 7, 2014. 
  8. ^ Odendahl, Marilyn. "5 lawsuits keep marriage debate alive in Indiana". Evansville (Ind.) City-County Observer. Retrieved 14 June 2014. 
  9. ^ "Lambda Legal Files Federal Suit". Lambda Legal (Press release). March 12, 2014. Retrieved March 13, 2014. 
  10. ^ Disis, Jill (April 10, 2014). "Judge grants request to force Indiana to recognize same-sex marriage". Indy Star. Retrieved April 10, 2014. 
  11. ^ Wilson, Charles (9 May 2014). "Ind. asks judge to stay ruling that it recognize terminally ill woman's marriage". LGBTQ Nation News. Retrieved 11 May 2014. 
  12. ^ a b Young, Richard L., U.S. District Judge (25 June 2014). "Entry on Cross-Motions for Summary Judgment, Baskin v. Bogan, No. 1:14-cv-00355-RLY". U.S. District Court for the Southern District of Indiana. 
  13. ^ Healy, Jack (June 25, 2014). "Utah Gay Marriage Ban Struck Down by Federal Appeals Court". The New York Times. Retrieved June 25, 2014. 
  14. ^ Odi, Marcia. "IND. DECISIONS - SO WHERE ARE WE NOW ON SAME-SEX MARRIAGE IN INDIANA?". Indiana Law Blog. Indiana Law Blog. Retrieved 7/3/14. 
  15. ^ Young, Richard, Chief U.S. District Judge (25 June 2014). "Entry on Defendant's Motion to Dismiss, Love v. Pence, No. 4:14-cv-00015". U.S. District Court for the Southern District of Indiana (Scribd.com). 
  16. ^ Geidner, Chris and Merevick, Tony (July 1, 2014). "Federal Appeals Court Says Indiana Must Recognize Terminally Ill Woman’s Same-Sex Marriage: An emergency order protecting Amy Sandler and Niki Quasney". Buzzfeed. Retrieved July 2, 2014. 
  17. ^ Posner, Williams, and Hamilton, Circuit Judges (27 June 2014). "Order (Granting Stay), Baskin v. Bogan, No. 14-­2386; Fujii v. Comm'r, Ind. State Dep't of Revenue, No. 14-­2387; and Lee v. Abbott, No. 14-2388". U.S. Court of Appeals for the Seventh Circuit (LBGTQNation.com). 
  18. ^ Per Curiam (27 June 2014). "Order (of Consolidation and Setting Briefing Schedule) Baskin v. Bogan, No. 14-2386; Fujii v. Comm'r, Ind. Dep't of Revenue, No. 14-2387; and Lee v. Abbott, No. 14-2388". U.S. Court of Appeals for the Seventh Circuit (scribd.com). 
  19. ^ a b c "Indy passes benefits for domestic partners". IDS. Retrieved December 10, 2013. 
  20. ^ "Indianapolis Mayor Greg Ballard OKs domestic partner benefits". Indy Star. Retrieved February 21, 2014. 
  21. ^ Browning, Bil (January 15, 2010). "Indiana State Senate to take action on marriage amendment". Bilerico Project. Retrieved December 14, 2012. 
  22. ^ Shella, Jim (January 28, 2010). "Gay marriage ban goes to Indiana House once again". WISH TV. Retrieved December 14, 2012. 
  23. ^ "Marriage Discrimination Amendment Dies in State Legislature". Indiana Equality. Retrieved December 14, 2012. 
  24. ^ "Indiana News Indiana House Endorses Gay Marriage Ban". WIBC. February 15, 2011. Retrieved January 4, 2014. 
  25. ^ Carden, Dan (March 29, 2011). "Senate OKs constitutional ban on gay marriage, civil unions". NWI Times. Retrieved January 4, 2014. 
  26. ^ Bangert, Dave (December 31, 2013). "Bracing for the flyover view of Indiana on marriage amendment". Journal Courier (Lafayette). Retrieved January 4, 2014. 
  27. ^ "Daniels says businesses talking gay marriage". Herald Bulletin. December 12, 2012. Retrieved December 14, 2012. 
  28. ^ Stokes, Kyle (October 28, 2013). "IU Opposes Amending Constitution To Ban Same-Sex Marriage". Indiana Public Media. Retrieved December 5, 2013. 
  29. ^ "Indiana legislative leaders break silence on same-sex marriage ban". Courier-Journal. November 18, 2013. Retrieved December 5, 2013. 
  30. ^ Cook, Tony (December 12, 2013). "Indiana Catholic bishops issue statement on gay marriage ban". Indy Star. Retrieved December 18, 2013. 
  31. ^ Smith, Brandon (January 9, 2014). "Proposed Marriage Amendment Clarified, Renamed". Indiana Public Media. Retrieved January 9, 2014. 
  32. ^ Cook, Tony (January 21, 2014). "Bosma moves gay marriage ban to new committee". Indianapolis Star. Retrieved January 21, 2014. 
  33. ^ Cook, Tony (January 22, 2014). "Elections committee advances HJR-3 on to full House". Indianapolis Star. Retrieved January 22, 2014. 
  34. ^ Rund, Jacob (January 27, 2014). "Indiana House votes to amend gay-marriage amendment". Indianapolis Business Journal. Retrieved February 10, 2014. 
  35. ^ Shabazz, Abdul-Hakim (January 28, 2014). "Indiana vote on constitutional ban on gay marriage faces hurdle". Chicago Tribune. Retrieved February 10, 2014. 
  36. ^ Cook, Tony; Berggoetz, Barb (February 10, 2014). "Committee votes 8-4 to send HJR-3 to full Senate". Indianapolis Star. Retrieved February 10, 2014. 
  37. ^ Schneider, Chelsea (February 17, 2014). "Indiana Senate approves marriage amendment". Evansville Courier & Press. Retrieved February 17, 2014. 
  38. ^ Cook, Tony; Berggoetz, Bard (February 14, 2014). "Same-sex marriage ban won't be on November ballot". Indy Star. Retrieved February 17, 2014. 
  39. ^ [1]
  40. ^ Poll finds Indiana residents split on gay marriage
  41. ^ IN Ballot Bellwether Research for Freedom Indiana (Sept. 2013)
  42. ^ WISH-TV/Ball State Hoosier Survey shows growing opposition to marriage amendment

External links[edit]