Challenges to Indiana’s same-sex marriage ban piling up in federal court

Update: This story has been edited to add the fourth lawsuit filed Friday.

And then there were four.

The American Civil Liberties Union of Indiana Friday filed a lawsuit in federal court challenging the state’s ban on same-sex marriage, becoming the third such complaint lodged against Indiana in a week. Another suit challening the ban was also filed in federal court Friday.

The wave of lawsuits began March 7 when four couples in southern Indiana, represented by the legal team in Louisville who successfully challenged Kentucky’s marriage statute, filed in the U.S. District Court for the Southern District of Indiana. This was followed by the national organization Lambda Legal filing a complaint March 10 in the Southern District on behalf of three Indiana couples.

The ACLU filed its suit on behalf of 14 couples, including two children who have faced discrimination because Indiana does not permit or recognize same-sex marriage. Midori Fujii, whose wife of 11 years died after a two-year battle with ovarian cancer, is the lead plaintiff. Because their California marriage was not recognized in Indiana, Fujii was not allowed by the funeral home to make decisions for her wife’s funeral and had to pay more than $300,000 in state inheritance taxes on property her wife left.

“Marriage has long played a fundamental role in our society,” said ACLU of Indiana Legal Director Kenneth J. Falk. “By failing to allow or recognize marriages for same-sex couples in Indiana, the state is perpetuating a discriminatory practice that cannot be squared with the Constitution.”

The ACLU suit argues Indiana Code 31-11-1-1 violates the Due Process and Equal Protection clauses of the 14th Amendment. The suit seeks to stop the state from enforcing this law and to allow same-sex couples to wed in Indiana as well as recognize same-sex marriages that have been performed in other states.

Also Friday, Richard A. Mann P.C. in Indianapolis filed a lawsuit in federal court on behalf of Michelle and Shannon Bowling and Linda Bruner challening the state's Defense of Marriage Act. The Bowlings, who were married in Iowa, reside and work in Indianapolis, have been denied state recognition of their lawful marriage. Linda Bruner, who was lawfully married in Iowa is also seeking recognition of her marriage here as she is seeking to obtain a divorce from her wife and has had a divorce pending since January 2013.

The ACLU challenge, Midori Fujii, et al. v. Indiana Governor, et al., 1:14-CV-00404; Michelle Bowling, Shannon Bowling and Linda Bruner v. Michael Pence, et al., 1:14-CV-0405; and the case filed a week ago by the Louisville team, Love v. Pence, 4:14-CV-00015, name Gov. Mike Pence as the defendant.

However, the Lambda suit, Baskin v. Bogan, 1:14-CV-0355, names the clerks of Boone, Porter and Lake counties along with Indiana Attorney Greg Zoeller as defendants.

In response to the first two lawsuits, Zoeller has vowed to defend Indiana’s definition of marriage as between one man and one woman.

“When plaintiffs who disagree with an Indiana statute file a challenge in court, I have a duty as Indiana’s Attorney General to defend our state and the statute the Legislature passed to the best of my skill and ability – and will here, both now and on any appeal,” Zoeller said.

Indiana has not filed an answer to any of the suits filed, but Zoeller has submitted amicus briefs in support of marriage laws in other District courts. Indiana is the lead author in a multistate amicus brief filed in the 10th Circuit in the combined case of Kitchen v. Herbert (from Utah) and Bishop v. Smith (from Oklahoma).

The 10th Circuit panel is scheduled to hear arguments in the Utah appeal April 10. This will be the first appeal to a federal court’s ruling that same-sex marriage bans are unconstitutional and could become the first federal court of appeals decision on the topic since the Supreme Court of the United States ruled on United States v. Windsor.

Besides Kentucky, Utah, and Oklahoma, same-sex marriage prohibitions have been knocked down by the federal courts in Virginia, Ohio and Texas. Also, seven couples in Arizona, represented by Lambda Legal, filed suit March 13 in federal court, challenging that state’s marriage law.

The trio of lawsuits come just weeks after proponents of same-sex marriage suffered a setback when the marriage amendment to the state Constitution, HJR 3, failed to gain enough support among Indiana lawmakers to appear on the 2014 November ballot. Legislators altered the wording of HJR 3 to remove the ban on civil unions which essentially put the amendment process back to the beginning.

“Even though we have temporarily avoided a state constitutional amendment banning marriage for same-sex couples, we cannot stand by idly while the Constitution’s guarantees of fairness and equality are denied to so many loving couples,” said Jane Henegar, ACLU of Indiana executive director.