Plaintiffs, v. PENNY BOGAN, in her official capacity as Boone County Clerk, et al.,
Defendants. ) ) ) ) ) ) ) ) ) )
Case No. 1:14-cv-00355-RLY-TAB
MOTION FOR STAY PENDING APPEAL
Pursuant to Federal Rule of Civil Procedure 62(c), Defendants Greg Zoeller, William C. VanNess II, M.D., Penny Bogan, Michael A. Brown, and Peggy Beaver respectfully move this Court to stay the enforcement of the Preliminary Injunction entered on May 8, 2014, pending appeal to the United States Court of Appeals for the Seventh Circuit. Defendants-Appellants have this day filed their Notice of Appeal concerning that preliminary injunction as well as a docketing statement. STANDARD FOR GRANTING A STAY Federal Rule of Civil Procedure 62(c) provides that [w]hile an appeal is pending from an interlocutory order or final judgment that grants . . . an injunction, the court may suspend [that] injunction . . . . The purpose of a stay is to maintain the status quo pending appeal, thereby preserving the ability of the reviewing court to offer a remedy and holding at bay the reliance interests in the judgment that otherwise militate against reversal[.] In re CGI Indus., Inc., 27 F.3d 296, 299 (7th Cir. 1994). If a stay is not granted and action is taken in reliance on the judgment, the positions of the interested parties have changed, and even if it may yet be Case 1:14-cv-00355-RLY-TAB Document 68 Filed 05/08/14 Page 1 of 17 PageID #: 734 2
possible to undo the transaction, the court is faced with the unwelcome prospect of unscrambl[ing] an egg. Id. (citation omitted). In considering whether to issue a stay, the Court must consider the relative hardships to the parties of the relief sought, in light of the probable outcome of the appeal, and should grant the stay if the party seeking it both has a good chance of winning the appeal and would be hurt more by the injunction than the [opposing party] would be hurt by a stay of the injunction pending appeal. Indianapolis Colts v. Mayor & City Council of Baltimore, 733 F.2d 484, 486 (7th Cir. 1984). The nature of the showing required to justify a stay pending appeal varies with the facts of each case. The [p]robability of success is inversely proportional to the degree of irreparable injury evidenced. A stay may be granted with either a high probability of success and some injury, or vice versa. Cuomo v. NRC, 772 F.2d 972, 974 (D.C. Cir. 1985); see also FTC v. Mainstream Mktg. Servs., Inc., 345 F.3d 850, 852 (10th Cir. 2003) (per curiam) (granting stay of injunction against federal do-not-call law and holding that if the moving party can establish that the three harm factors tip decidedly in its favor, the probability of success requirement is somewhat relaxed). With respect to success on the merits, the Supreme Court has held that there must be a strong showing of likely success, not necessarily a definitive likelihood of success as in the preliminary injunction context. Hilton v. Braunskill, 481 U.S. 770, 776 (1987). Indeed, the movant need only present a substantial case on the merits when a serious legal question is involved and show that the balance of equities weighs heavily in favor of granting the stay. Wildmon v. Berwick Universal Pictures, 983 F.2d 21, 23 (5th Cir. 1992) (citations and internal quotations omitted). Case 1:14-cv-00355-RLY-TAB Document 68 Filed 05/08/14 Page 2 of 17 PageID #: 735 3
ARGUMENT I. The Injunction Issued by This Court Should, Like All Other Contested Same-Sex Marriage Injunctions to Date, Be Stayed
To date, in light of Supreme Court guidance on the issue, in no case does a fully contested preliminary or final permanent injunctive decree precluding enforcement of traditional marriage definitions remain in effect. The thrust of these cases is hard to miss: The traditional definition of marriage has been around a long time. Its validity is hotly contested, but the outcome of these legal disputes is uncertain, such that the status quo should remain until the Supreme Court squarely addresses the issue. On J anuary 6, 2014, the Supreme Court stayed a permanent injunction issued by the United States District Court for the District of Utah in Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013), pending final disposition of an appeal to the Tenth Circuit. Herbert v. Kitchen, 134 S. Ct. 893 (J an. 6, 2014). In that case, three same-sex couples challenged Utahs constitutional amendment and statutes upholding the traditional definition of marriage. Kitchen, 961 F. Supp. 2d at 1187. The district court entered a permanent injunction, now fully stayed by the Supreme Court, that required officials to issue marriage licenses to same-sex couples and to recognize same-sex marriages validly performed in other States. Id. at 1215. Federal courts across the country have fallen into line by staying injunctions involving traditional marriage definitions, both with respect to licensure of same-sex marriages within a State and recognition of same-sex marriages performed in other jurisdictions. See Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1252, 1296 (N.D. Okla. 2014) (licensure); Bostic v. Rainey, No. 2:13-cv-395, 2014 WL 561978, at *23 (E.D. Va. Feb. 13, 2014) (licensure and recognition); De Leon v. Perry, No. SA-13-CA-00982-OLG, 2014 WL 715741, at * 28 (W.D. Texas Feb. 26, 2014) (licensure and recognition); Bourke v. Beshear, No. 3:13-CV-750-H, 2014 Case 1:14-cv-00355-RLY-TAB Document 68 Filed 05/08/14 Page 3 of 17 PageID #: 736 4
WL 556729, at * 14 (W.D. Ky. Mar. 19, 2014) (recognition); DeBoer v. Snyder, No. 14-1341, Doc. 22-1 at 3 (6th Cir. Mar. 25, 2014) (licensure). Most recently, the Sixth Circuit reversed the district courts denial of a stay of its injunction in Tanco v. Haslam, No. 3:13-cv-01159, 2014 WL 1117069, at *5 (M.D. Tenn. Mar. 20, 2014), that barred defendants from enforcing Tennessees anti-recognition statute and constitutional amendment against the six named plaintiffs in that case. Order, Tanco v. Haslam, No. 14-5297, Docket No. 29, at 2 (6th Cir. Apr. 25, 2014) (per curiam). The court found persuasive the district courts grant of stay of its own injunction in Henry v. Himes, No. 1:14- CV-129, 2014 WL 1512541, at *1 (S.D. Ohio Apr. 16, 2014), explaining that [r]ecognition of same-sex marriages is a hotly contested issue in the contemporary legal landscape, and, if [the states] appeal is ultimately successful, the absence of a stay as to [the district courts] ruling of facial unconstitutionality is likely to lead to confusion, potential inequity, and high costs. Id. The court ruled that, [b]ecause the law in this area is so unsettled, in our judgment the public interest and the interests of the parties would be best served by this Court imposing a stay on the district courts order until this case is reviewed on appeal. Id. With this order in Tanco, every contested injunction issued post-Windsor in favor of same-sex plaintiffs by district courts has been stayed. Nonetheless, Plaintiffs have argued that the unanimous stays of permanent injunctions under facial challenges are not persuasive because [p]reliminarily enjoining enforcement of [Indianas traditional marriage definition] does not cause similar concerns. Pls. Reply Br. at 33 [Doc. 62]. Similarly, this Court stated in its preliminary injunction ruling that it does not agree that a stay by the Supreme Court of such a broad injunction conclusively determines that the Plaintiffs here are not entitled to the narrow form of injunctive relief they seek. Entry on Pls. Case 1:14-cv-00355-RLY-TAB Document 68 Filed 05/08/14 Page 4 of 17 PageID #: 737 5
Mot. for Prelim. Inj. at 6 [Doc. 65] (hereinafter, PI Entry). Yet in all such cases, it is the legal limbo due to lack of final appellate resolution on a nationally important, unsettled question of law that militates for a stay. If a permanent injunction must be stayed in this context, it follows that temporary or preliminary relief is equally inappropriate. This Court also stated in its preliminary injunction ruling that despite these stays, no court has found that preliminary injunctive relief is inappropriate simply because a stay may be issued. Id. Yet, as Defendants advised the Court at the hearing on Plaintiffs motion for temporary restraining order, and as they alluded to once again in their combined brief, see Defs. Combined Br. at 10 [Doc. 56], in Wolf v. Walker, No. 3:14-cv-00064-bbc, Doc. 53 (W.D. Wisc. Mar. 4, 2014), J udge Crabb invited plaintiffs to withdraw their motion for preliminary injunction because any such an injunction would likely be stayed, stating that [i]f a preliminary injunction must be stayed as soon as it is entered, it is not clear what purpose it serves. Id. at 3. The Supreme Court sent a strong message with its unusual intervention in Kitchen v. Herbert that stayed a final, permanent injunction against enforcement of traditional marriage definitions. Bourke, 2014 WL 556729, at *14. This Court should heed that message and stay enforcement of the Preliminary Injunction pending appeal. II. The Injury to Defendants, Public Policy, and Balance of Hardships Weigh in Favor of a Stay
A. Absent a stay, the legitimacy of Quasney and Sandlers marriage would remain in doubt, the preliminary injunction would risk public confusion over the meaning of marriage in Indiana, and officials would not be certain of their responsibilities
The preliminary injunction requires Defendant Van Ness to issue a death certificate for Quasney that lists her as married and lists Sandler as her surviving spouse, but also includes the following broad directive and statement: Defendants and all those acting in concert are Case 1:14-cv-00355-RLY-TAB Document 68 Filed 05/08/14 Page 5 of 17 PageID #: 738 6
ENJOINED from enforcing Indiana statute 31-11-1-1(b) against recognition of Plaintiffs, Niki Quasneys and Amy Sandlers, valid out-of-state marriage; the State of Indiana must recognize their marriage. PI Entry at 13. This injunction threatens irreparable harm to Defendants because it proposes to alter the meaning of marriage in Indiana for one couple, but potentially only temporarily; because it creates confusion over the meaning of marriage in Indiana, and because it leaves Defendants wondering what, exactly, is required of them. 1. Without a stay, in the absence of a final appellate determination of their rights, any recognition of the Quasney-Sandler marriage would come under a cloud of doubt. Plaintiffs have discussed at length their desire for societal recognition and acceptance. See, e.g., Pls. Prelim. Inj. Mem. at 25 [Doc. 36]; Pls. Summ. J . Mem. at 1, 4, 8, 18-19 [Doc. 39]. Yet the Preliminary Injunction issued by this Court cannot ensure those aims, and it will unavoidably leave a bitter taste because it cannot conclusively resolve the legality of same-sex marriages. The best course of action would be to allow for full and fair appellate review before building up the expectations of these Plaintiffs or any other same-sex couples interested in recognition of their out-of-state marriages. 2. Furthermore, the public interest in the continuity of Indianas marriage lawsi.e., the interest in avoiding the potential for public confusion over a series of judicial injunctions that keep re-setting a states authority to define marriagefavors a stay. Plaintiffs claim that no harm [exists] if the injunction is granted in error, Pls. Reply Br. at 35 [Doc. 62], and the Court stated in its preliminary injunction order that while it recognizes the States concern that injunctions of this sort will cause confusion with the administration of Indianas marriage laws and to the public in general, that concern does not apply here. PI Entry at 12-13. Yet the Court should not turn a blind eye to the impact of widespread publication of its ruling. It is not as if Case 1:14-cv-00355-RLY-TAB Document 68 Filed 05/08/14 Page 6 of 17 PageID #: 739 7
only these Plaintiffs are likely to know about the injunction. Widespread attention to this case raises the risk exponentially that preliminary injunctive relief without full appellate review will disrupt public understanding of the meaning and purpose of marriage in Indiana, raise expectations that any number of Indiana laws pertaining to marriage are suddenly suspended or modified, and generally create unnecessary confusion among the public. This would be especially damaging with respect to any public acts that cannot be undone, even if only as to Quasney and Sandler. 3. If the response is that the recognition required by the preliminary injunction cannot harm Defendants because it requires no official or public acts (apart from duties pertaining to the Quasney death certificate), that only underscores the lack of connection between the Defendants and any harm to Quasney and Sandler. See Part II.B., infra. It also demonstrates that the preliminary injunction is harmful because, beyond actions pertinent to the Quasney death certificate, it fails to specify what, exactly, it means for defendants to recognize the Quasney-Sandler marriage, and what import that statement the State of Indiana must recognize their marriage is meant to convey. As the Supreme Court has held with respect to Rule 65(d) of the Federal Rules of Civil Procedure, a federal court [must] frame its [preliminary injunctions] so that those who must obey them will know what the court intends to require and what it means to forbid . . . is absolutely vital in a case where a federal court is asked to nullify a law duly enacted by a sovereign State. Gunn v. Univ. Comm. to End War in Viet Nam, 399 U.S. 383, 389 (1970). An injunction must state precisely how those enjoined are to be bound, Schmidt v. Lessard, 414 U.S. 473, 476 (1974) (per curiam) (Since an injunctive order prohibits conduct under threat of judicial punishment, basic fairness requires that those enjoined receive explicit notice of Case 1:14-cv-00355-RLY-TAB Document 68 Filed 05/08/14 Page 7 of 17 PageID #: 740 8
precisely what conduct is outlawed.). The Courts preliminary injunction injures Defendants by targeting all of them without specifying (apart from duties related to Quasneys death certificate) what they must do to recognize the Quasney-Sandler marriage. Furthermore, when the Court says that the State of Indiana must recognize their marriage, it is not clear if that statement is intended to apply to parties not before the Court, such as (potentially) probate judges, tax officials, or any other state or local officials with whom Quasney and Sandler may have incidental contact. One principal rule of equity is that a court may not bind parties not before it by way of injunctive decrees. Alemite Mfg. Corp. v. Staff, 42 F.2d 832, 832 (2d Cir. 1930) ([N]o court can make a decree which will bind any one but a party[.] (opinion of Hand, J .)). After final judgment, if Quasney and Sandler prevail, the precise breadth of the injunction likely would not matter as much because all same-sex couples in all circumstances would be able to invoke whatever rights of recognition may arise without constantly resorting to a judicial decree for guidance. But with limited preliminary relief, officials need to know exactly who is expected to do what. Here, that need is satisfied with respect to the Quasney death certificate, but not with respect to the broader directive for the State of Indiana to recognize the Quasney-Sandler marriage. That said, it seems unlikely that situations other than the death certificate will arise where a state or local official is confronted with the validity vel non of the Quasney-Sandler marriage. If so, rather than undertake the unnecessary task of identifying and disaggregating all potential recognition scenarios, the better course is to stay the injunction pending appeal. B. Any potential harm to Plaintiffs is reparable on final judgment, speculative, vague, or non-justiciable
This Court based its preliminary injunction in part on its view that Indianas non- recognition statute harms the Plaintiffs in numerous tangible and intangible ways, including Case 1:14-cv-00355-RLY-TAB Document 68 Filed 05/08/14 Page 8 of 17 PageID #: 741 9
causing Niki to drive to Illinois where her marriage will be recognized in order to receive medical care and the dignity of marital status. PI Entry at 5. But there is no reason to believe that an injunction pending appeal would benefit Quasney. Quasney has not asserted that, with the TRO in hand, she sought treatment locally rather than by driving to Illinois, so there is no reason to believe the preliminary injunction will have any such effect. Furthermore, there is nothing any Defendant can do to make Quasneys ability or willingness to seek treatment in Indiana any easier. Defendants do not control Indiana hospitals and cannot require personnel at those hospitals to accord recognition to Quasney and Sandler as a married couple. There is simply no connection between an injunction in this case against these defendants and Quasneys medical treatment. The Court also stated in its preliminary injunction order that a preliminary injunction enjoining Defendants from enforcing the non-recognition statute against Plaintiffs will . . . redress their claimed injury. PI Entry at 5. But there is no way in which any Defendant has ever enforced the non-recognition statute against any Plaintiffs in this case. The statutes cited by the CourtInd. Code 4-6-1-6; Ind. Code 31-11-4-2; Ind. Code 16-37-1-3; and Ind. Code 16-37-1-3.1in support of this point have nothing to do with Quasney. Section 4-6-1-6 pertains to the Attorney Generals general duties to attend to litigation, but that has nothing to do with Quasney (or any Plaintiff for that matter). See Sherman v. Cmty. Consol. Sch. Dist. 21 of Wheeling Twp., 980 F.2d 437, 441 (7th Cir. 1992) (rejecting lawsuit against a state Attorney General based only on his general duty to enforce the laws of the State). Section 31-11-4-2 precludes clerks from issuing marriage licenses in contravention of Section 31-11-1-1, but Quasney and Sandler do not seek a marriage license. In short, enjoining Defendants from doing that which they have never done cannot plausibly redress any injury to Quasney or Sandler. Case 1:14-cv-00355-RLY-TAB Document 68 Filed 05/08/14 Page 9 of 17 PageID #: 742 10
The Court also cited Indiana Code Section 16-37-1-3 and Indiana Code Section 16-37-1- 3.1, which govern the Health Commissioners duties with respect to vital records. Quasneys central claim has been that, absent an injunction, she stands to suffer immediate harm if she passes away before conclusion of the litigation and her death certificate lists her as unmarried. As the declaration of Hilari A. Sautbine, a staff attorney for the Indiana State Department of Health, makes clear, however, a certificate of death can be amended at the request of any interested person. Sautbine Decl. 10-11 [Doc. 56-1]. Any refusal to honor such a request is subject to legal action in state court. Id. at 12. If the Court later determines on the merits that Quasneys out-of-state same-sex marriage is entitled to recognition in Indiana, her certificate of deathwhich is an electronic recordcould easily be corrected to reflect that fact. Accordingly, there is no likely irreparable harm with respect to the accuracy of the certificate of death itself. In its preliminary injunction order, the Court alluded to permitting the Plaintiffs to receive . . . the dignity of marital status, PI Entry at 5, and specifically ruled that pass[ing] away without enjoying the dignity that official marriage status confers constitutes concrete, tangible injuries that are fairly traceable to Defendants and can be remedied by a preliminary injunction. Id. at 11-12. Perception of slight to ones dignity, however, is a type of psychological harm not cognizable under Article III. See, e.g., Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 485-86 (1982); Gonzales v. N. Twp. of Lake County, 4 F.3d 1412, 1416 (7th Cir. 1993); Harris v. City of Zion, 927 F.2d 1401, 1405 (7th Cir. 1991). And ongoing violations of constitutional rights can constitute irreparable harm justifying an injunction only where the defendants are actually responsible for such ongoing violations. Case 1:14-cv-00355-RLY-TAB Document 68 Filed 05/08/14 Page 10 of 17 PageID #: 743 11
See Preston v. Thompson, 589 F.2d 300, 301 (7th Cir. 1978) (upholding preliminary injunction requiring prison officials to provide two showers a week to all inmates and a daily hour of yard recreation to certain other inmates in order to remedy due process violation); Does v. City of Indianapolis, No. 1:06-cv-865-RLY-WTL, 2006 WL 2927598, at *1-*10 (S.D. Ind. Oct. 5, 2006) (granting preliminary injunction against sheriff and other local officials charged with enforcing a city ordinance prohibiting offenders from being within a certain distance of public facilities); Back v. Carter, 933 F. Supp. 738, 754 (N.D. Ind. 1996) (granting motion for preliminary injunction preventing officials from participating in a commission where such participation would give effect to statutory racial and gender quotas in violation of the Equal Protection Clause); Hodgkins v. Peterson, No. 1:04-cv-569-J DT-TAB, 2004 WL 1854194, *5 (S.D. Ind. J ul. 23, 2004) (granting preliminary injunction against local officials charged with arresting and prosecuting violators of Indianas juvenile curfew law). Here, there is zero evidence that any slights to dignity suffered by Quasney and Sandler are traceable to any Defendants. Nothing that Defendants have said or done has caused Quasney to seek treatment in Illinois rather than Indiana, or caused any of the other tangible or intangible harms that Quasney and Sandler allege. Nor can any of the Defendants take or forego any action that can restore that dignity. Sevcik v. Sandoval, 911 F. Supp. 2d 996, 1018 (D. Nev. 2012) (explaining that [a]ny stigma arising out of the States refusal to recognize same-sex relationships as marriages simply cannot be removed by judicial decree). Accordingly, Plaintiffs cannot demonstrate sufficiently cognizable harm to justify denial of a stay. An injunction against these Defendants seeking to assuage Plaintiffs dignity harms, without any connection to actions or duties of the Defendants, is likely to be reversed on appeal.
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III. Defendants Are Likely to Succeed on the Merits Baker v. Nelson, 409 U.S. 180 (1972), was a ruling on the merits that upheld Minnesotas traditional definition of marriage. Baker was not overruled by United States v. Windsor, 133 S.Ct. 2675 (2013), or any other Supreme Court case and therefore precludes these challenges. Neither the United States Supreme Court nor the Seventh Circuit Court of Appeals has issued a decision stating that the constitutional right to marry encompasses forcing States to recognize out-of-state same-sex marriages. Furthermore, other federal district courts that have considered the issue have concluded that traditional marriage laws limiting marriage to the legal union of a man and woman do not violate the Constitution. See Jackson v. Abercrombie, 884 F. Supp. 2d 1065 (D. Hawaii 2012); Sevcik v. Sandoval, 911 F. Supp. 2d 996 (D. Nev. 2012). To date, the only federal appellate court to squarely address the issue since Baker has upheld the constitutionality of the traditional marriage. See Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006). The Supreme Courts decision in United States v. Windsor, 133 S. Ct. 2675 (2013), did not undermine the legal underpinnings of these decisions. The Court struck down Section 3 of DOMA, which had the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity[,] as a violation of the Fifth Amendment principally because it was an unusual deviation from the tradition of recognizing and accepting state definitions of marriage . . . . Id. at 2693, 2696 (emphases added). It was critical to the Courts analysis that New York had previously granted marital interests that federal DOMA then threatened. Id. at 2689. While the Constitution plainly gives its blessing to New York to recognize out-of- jurisdiction same-sex marriages, id. at 2692 (explaining that New Yorks actions were without Case 1:14-cv-00355-RLY-TAB Document 68 Filed 05/08/14 Page 12 of 17 PageID #: 745 13
doubt a proper exercise of its sovereign authority within our federal system, [which] allow[s] the formation of consensus respecting the way the members of a discrete community treat each other in their daily contact and constant interaction with each other), it is a considerable leap from this to the conclusion that Windsor established a singular vision of a fundamental right to marriage that must be respected by all States. Traditional state marriage definitions are, as Windsor amply affirms, the usual course of business. Id. at 2691. In no uncertain terms, the majority forcefully states that [t]his opinion and its holding are confined to [New Yorks] lawful marriages. Id. at 2696. It is therefore improper to extrapolate from this opinion any rule that affects any other states marriage laws. As Defendants have previously explained, there is no constitutional rightwhether sounding in full faith and credit, due process, or equal protectionto have ones out-of-state same-sex marriage or civil union recognized in Indiana. See Defs. Combined Mem. at 24-32. First, the Full Faith and Credit Clause requires recognition of judgments of other States and does not extend to a States acts or statutes. Baker ex rel. Thomas v. Gen. Motors Corp., 522 U.S. 222, 232 (1998) (The Full Faith and Credit Clause does not compel a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate. (quotation and citation omitted)). If the Full Faith and Credit Clause cannot compel one State to recognize marriages from another, the Fourteenth Amendment has no greater role to play. Second, there is no federal due process right to have a license issued in one State whether for professional, weapons, driving, or marriage purposestreated as valid by government and courts in another. See Hawkins v. Moss, 503 F.2d 1171, 1176 (4th Cir. 1974) ([L]icenses to practice law granted by . . . one state, have no extraterritorial effect or value and Case 1:14-cv-00355-RLY-TAB Document 68 Filed 05/08/14 Page 13 of 17 PageID #: 746 14
can vest no right in the holder to practice law in another state.). Marriage-recognition principles are rooted in the common law of comity. The common law choice-of-law starting point is usually the lex loci rule, which says a marriage valid in the State of licensure is valid in other States as well. But that is not, and never has been, the end of the matter. The Restatement (Second) of Conflict of Laws 283(2) (1971) states that even if a marriage satisfies the requirements of the state where the marriage was contracted, that marriage will not be recognized as valid if it violates the strong public policy of another state which had the most significant relationship to the spouses and the marriage at the time of the marriage. This public policy exception comports with the Nations history, legal traditions, and practices, and indeed dates back before the Fourteenth Amendment. See J oseph Story, Commentaries on the Conflict of Laws 113a, at 168 (Little Brown, & Co. 6th ed. 1865). See Defs. Combined Mem. at 27 (listing examples). In the only Indiana Supreme Court decision that Defendants are aware of that addresses an out-of-jurisdiction marriage that could not have been entered into in Indiana, the Court refused to recognize the marriage on public policy grounds. Sclamberg v. Sclamberg, 41 N.E.2d 801, 802-03 (Ind. 1942) (treating as void a marriage between uncle and niece). Finally, Indianas traditional marriage definition does not violate equal protection. At the outset, it is not clear Quasney and Sandler have standing to assert this claim. They were married in Massachusetts, but were not at the time residents of Massachusetts. They were residents of Indiana. Knowing that they could not be married in Indiana, they decided to get married elsewhere, which runs afoul of Indiana Code Section 31-11-8-6, which prohibits recognition of marriages entered out-of-state to evade Indianas marriage laws. See Defs. Combined Mem. at 27-28. This statute is neutral with respect to whether the marriage is same-sex or opposite-sex, Case 1:14-cv-00355-RLY-TAB Document 68 Filed 05/08/14 Page 14 of 17 PageID #: 747 15
so Quasney and Sandler are being treated exactly the same as a similarly situated opposite-sex couple would be treated. Regardless, the proper level of scrutiny here is rational basis, see id. at 35-48, and to the extent out-of-state opposite-sex marriages are generally treated as valid under Indiana law but same-sex marriages are not, that differential treatment is fully justifiable. For Indiana, marriage is about encouraging responsible procreation so as to ameliorate the consequences of unplanned pregnancies. See Morrison v. Sadler, 821 N.E.2d 15, 30 (Ind. Ct. App. 2005); Defs. Combined Mem. at 50-55. For States recognizing same-sex marriages, the purpose of marriage is obviously something elsesomething that cannot be reconciled with Indianas marriage philosophy. Notably, the same is not true with respect to other variations in state marriage laws, which may reflect marginal differences about the proper age of majority or the proper distance of consanguinity, but which do not call into question the fundamental purpose of the entire enterprise. Indiana has a legitimate interest in maintaining the integrity of its fundamental rationale for civil marriage rather than letting it be redefined by other States. Fundamentally, the constitutional validity of Indianas decision not to recognize out-of- state same-sex marriages turns on the constitutional validity of its traditional marriage definition. Because Indiana can constitutionally adhere to that definition and thereby refuse to provide for same-sex marriages, Defs. Combined Mem. at 32-60, it can also refuse to recognize same-sex marriages from other States. Case 1:14-cv-00355-RLY-TAB Document 68 Filed 05/08/14 Page 15 of 17 PageID #: 748 16
CONCLUSION For the foregoing reasons, the State respectfully requests that this Court stay enforcement of its Preliminary Injunction pending disposition of this appeal.
s/ Nancy Moore Tiller (with permission) Nancy Moore Tiller Nancy Moore Tiller & Associates 11035 Broadway, Suite A Crown Point, IN 46307 Tel: (219) 662-2300 Fax: (219) 662-8739 nmt@tillerlegal.com Counsel for Michael A. Brown
s/ Robert V. Clutter (with permission) Robert V. Clutter Kirtley, Taylor, Sims, Chadd & Minnette, P.C. 117 W. Main Street Lebanon, IN 46052 Tel: (765) 483-8549 Fax: (765) 483-9521 bclutter@kirtleytaylorlaw.com Counsel for Penny Bogan
Respectfully submitted,
GREGORY F. ZOELLER Attorney General of Indiana s/ Thomas M. Fisher Thomas M. Fisher Solicitor General Office of the Attorney General IGC South, Fifth Floor 302 W. Washington Street Indianapolis, IN 46204 Tel: (317) 232-6255 Fax: (317) 232-7979 Tom.Fisher@atg.in.gov Counsel for Greg Zoeller and William C. VanNess II, M.D.
s/ Darren J. Murphy (with permission) Darren J . Murphy Assistant Hamilton County Attorney 694 Logan St. Noblesville, IN 46060 Tel: (317) 773-4212 Fax: (317) 776-2369 dmurphy@ori.net Counsel for Peggy Beaver
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CERTIFICATE OF SERVICE
I hereby certify that on May 8, 2014, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which sent notification of such filing to the following: Barbara J . Baird The Law Office Of Barbara J Baird bjbaird@bjbairdlaw.com
Paul D. Castillo Camilla B. Taylor Christopher R. Clark Lambda Legal Defense & Education Fund, Inc. pcastillo@lambdalegal.org ctaylor@lambdalegal.org cclark@lambdalegal.org
Robert V. Clutter Kirtley, Taylor, Sims, Chadd & Minnette, P.C. bclutter@kirtleytaylorlaw.com
Darren J . Murphy Assistant Hamilton County Attorney dmurphy@ori.net
Nancy Moore Tiller Nancy Moore Tiller & Associates nmt@tillerlegal.com
Elizabeth A. Knight Porter County Administrative Center eknight@porterco.org
s/ Thomas M. Fisher Thomas M. Fisher Solicitor General
Office of the Attorney General Indiana Government Center South 5th Floor 302 W. Washington St. Indianapolis, IN 46204-2770 Phone: (317) 232-6255 Fax: (317) 232-7979 Email: Tom.Fisher@atg.in.gov
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