Chief U.S. District Judge Richard L. Young was clearly perturbed by the actions of Indiana Governor Mike Pence in response to Young’s June 25 ruling requiring the state to allow same-sex couples to marry, Baskin v. Bogan.
There were several marriage equality cases pending in Indiana, all assigned to Judge Young, and Governor Pence had moved to be dismissed as an individual defendant in those cases, claiming that he was not appropriately sued because he does not have “any authority to enforce or other role respecting” the Indiana laws against same-sex marriage. When Judge Young ruled in prior cases, Baskin v. Bogan and Love v. Pence, he had granted Pence’s motion and dropped him as an individual defendant. But after the Baskin ruling, Pence, through his legal counsel, took action, sending memoranda with instructions to other elected officials in the state on compliance with the court’s order and communicated again after the 7th Circuit issued its stay. To Young, this looked like the opposite of what Pence had been saying, and it came back to bite the governor on August 19, when Young issued his ruling in another pending marriage equality case, Bowling v. Pence.
In this case, a lesbian couple who married in Iowa were suing for Indiana to recognize their marriage, as one of the women is a state employee and wants to sign up her spouse and their children for the health plan. Another plaintiff is an Indiana woman who married her partner of seven years in another state in 2013, but now wants to get out of the marriage. She was stymied by the refusal of the Marion Superior Court to entertain her divorce action because Indiana doesn’t recognize the marriage. She plans to appeal that ruling to the Indiana Court of Appeals, but in the meanwhile joins as a plaintiff in this marriage recognition case.
After Judge Young’s prior rulings in Baskin and Love, his ruling on the merits in this case is really nothing new. What is new is what he has to say about Governor Pence, whose motion to be dismissed as a defendant in this case had yet to be decided. After the Baskin ruling, the Governor’s office sent directions to state officials about compliance with the Order. After the 7th Circuit intervened to stay Judge Young’s Order in the Baskin case, after many same-sex couples had rushed to marry or apply for benefits based on their existing marriages, Governor Pence sent a memo to relevant Indiana officials telling them to comply with the 7th Circuit’s stay order, and had his counsel send a memo that instructed all executive branch agencies “to stop any processes they had commenced in complying with the District Court order of June 25.” The memo stated, “Indiana Code Sec. 31-11-11-1-1 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.”
“The memoranda issued by the Governor clearly contradict his prior representations to the court,” wrote Young. “The Governor can provide the parties with the requested relief as was evident by his initial memorandum on June 25, 2014,” which had reacted to Judge Young’s ruling in Baskin v. Bogan, “and he can enforce the statute to prevent recognition as evident by his correspondence on June 27 and July 7. Thus, the court finds that this case is distinguishable from the cases cited by Defendants because it 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. Therefore, the court finds that the Governor can and does enforce Section 31-11-1-1(b) and can redress the harm caused to Plaintiffs in not having their marriage recognized.”
Looking back at the representation Pence had made to the court in seeking to be dismissed from the case, Judge Young characterized it as a “bold misrepresentation.”
Young refused to dismiss Governor Pence as a defendant, and denied similar motions by Attorney General Gregory Zoeller and the state’s Revenue Commissioner, Michael Alley. On the substance of the case, he reiterated his conclusions from the prior rulings that Baker v. Nelson (1972), the Supreme Court’s one sentence opinion dismissing an early marriage equality case as not presenting a “substantial federal question,” is no longer binding due to subsequent developments, and that Indiana’s refusal to recognize same-sex marriages contracted in other states violates the Equal Protection Clause of the 14th Amendment. The plaintiffs had argued a host of other constitutional theories to attack the recognition ban, but Young said there was no need to rule on any of those, since he had struck down the ban on equal protection grounds.
However, because the 7th Circuit had stayed his prior marriage equality rulings as well as the Wisconsin district court’s ruling in anticipation of the appeals filed by both states, Young granted the defendants’ motion to stay his declaratory judgment and permanent injunction pending the appellate process on the cases.
“The phenomenon that the court previously observed has continued to grow,” he wrote. “Since issuing its prior orders, two circuit courts have found bans similar to Indiana’s to be unconstitutional. This court reaffirms that conclusion today. Additionally, 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.”
In his stayed Order, Young directs state officials not to enforce the marriage recognition ban or the ban on allowing same-sex couples to marry, specifying that state officials are “to afford same-sex marriages the same rights, responsibilities, and benefits as opposite-sex marriages,” and that state law enforcement officials are not to enforce provisions that might be used to deter or punish same-sex couples seeking to marry. He specifically directs the tax authorities to allow same-sex married couples the same rights and status under the tax laws as different-sex married couples, and the state personnel department to allow for the same benefits rights and entitlements.
“This Order is stayed until the Seventh Circuit rules on the merits of this case or one of the related cases of Baskin v. Bogan, Lee v. Pence, and Fujii v. Pence,” he concluded. “Should the Seventh Circuit stay its decision in the related cases, this order shall remain stayed.”
The 7th Circuit will hear oral argument in the other Indiana cases, as well as the pending Wisconsin case, on August 26.