Marriage Equality advocates in Indiana were very strategic in their litigation, holding off filing cases until after the legislature had adjourned, after kicking the question of a constitutional amendment against same-sex marriage down the road another two years by passing a version of the proposed amendment that differed from that approved in the last session. A bunch of new cases were filed earlier this year, and they have been consolidated before U.S. District Judge Richard L. Young in Indianapolis (S.D. Ind.), under the collective title of Baskin v. Bogan.
Things were proceeding as they do in these cases when suddenly an urgent need for a quick ruling arose. Niki Quasney and Amy Sandler, one of the plaintiff couples, formed an Illinois civil union in 2011 and married in Massachusetts in 2013. They have been together many years and are raising two young children together. Niki has been battling ovarian cancer since May 2009, going back and forth between active cancer and remission after treatments. On April 9, the cancer recurred from the most recent remission, and the prognosis was questionable. Plaintiffs’ counsel filed an emergency motion for a temporary restraining order, seeking to get recognition for the Quasney-Sandler marriage specifically to ensure that if Niki dies before the court can rule on the merits in this case, the state will be required to recognize Niki and Amy as married on Niki’s death certificate.
Judge Young proved receptive to this request, ruling from the bench at the end of a hearing on April 10 to issue the TRO, to last until May 8, by which time the court will hold a hearing on a motion for preliminary injunction. On April 18, Judge Young issued a written opinion explaining his ruling, 2014 U.S. Dist. LEXIS 54036.
Young quickly rejected the state’s argument that plaintiffs could not seek a TRO because they had not yet suffered any Article III harm that could be remedied by a restraining order, pointing out thatdig nitary harm could be sufficient where a constitutional right was at stake. Furthermore, there were already tangible harms experienced by the plaintiffs. “The Plaintiffs here have shown cognizable injuries that a TRO can remedy,” wrote Judge Young, “because Niki drives across state lines to receive treatment from a hospital that will recognize her marriage, Niki and Amy have been denied a family fitness membership, and they suffer anxiety, sadness, and stress about the non-recognition of their marriage and what that means if and when Niki succumbs to her disease.”
Referring to the “dignity” of marriage that was at the heart of the Supreme Court’s decision last year in U.S. v. Windsor, Young wrote that “the deprivation of the dignity of a state-sanctioned marriage is a cognizable injury under Article III.”
As to the criteria for a temporary restraining order, Young was governed by 7th Circuit precedents, requiring him to find that the plaintiffs’ chance of success on the merits is “more than negligible.” He found this easily satisfied by reference to “the wave of recent cases finding that similar state statutes and state constitutional amendments violate the Equal Protection Clause and the Due Process Clause.” He found “particularly persuasive” two recent rulings from Ohio and Illinois involving couples where one member was suffering a fatal illness.
Turning to the state’s arguments, he rejected Indiana’s contention that all of these courts have misconstrued Windsor by imposing a federal constitutional analysis on the policy question of who can marry. Noting the Supreme Court’s citation of Loving v. Virginia, the 1967 Supreme Court decision striking down Virginia’s ban on interracial marriages, he wrote, “The Equal Protection Clause requires states to treat people equally under the law; if the state wishes to differentiate between people and make them unequal, then it must have at least a legitimate purpose.”
As to purpose, he rejected out of hand Indiana’s argument that the state’s concern in “ameliorating the consequences of unintended children” would serve to justify excluding same-sex couples from marrying. “This philosophy of marriage,” he wrote, “does not distinguish Indiana from the wave of recent cases finding similar statutes to be unconstitutional. Furthermore, he wrote, “The court finds that this cannot be the entire rationale underlying the traditional marriage. Additionally, this philosophy is problematic in that the state of Indiana generally recognizes marriages of individuals who cannot procreate. For example, Indiana recognizes the marriages of opposite-sex couples that occurred in Florida that are well past their procreative years. This philosophy does not apply to them, so under the state’s philosophy, their marriage should not be recognized here. Further, before recognizing an out-of-state marriage on a death certificate, the state of Indiana does not inquire whether the couple had the ability to procreate unintentionally.”
Foreshadowing his likely ruling on the merits when the court decides on summary judgment down the line, Young wrote, “the court finds there will likely be insufficient evidence of a legitimate state interest to justify the singling out of same-sex marriage couples for non-recognition. The court thus finds that Plaintiffs have at least some likelihood of sucess on the merits because the ‘principal effect’ of Indiana’s statute ‘is to identify a subset of state-sanctioned marriages and make them unequal.'” The quoted words are from the Supreme Court’s opinion in Windsor.
Young also found that the restraining order was necessary because after-the-fact damages or alternative contractual arrangements would be insufficient to provide an adequate remedy for the harms the plaintiffs would suffer if their marriage is not recognized in the current circumstances. Indeed, they would suffer irreparable harm if the TRO is denied and Niki dies before the court can rule on the merits, and, wrote Young, “as this court and others have previously held, the state experiences no harm when it is prevented from enforcing an unconstitutional statue.” Thus, the court was willing to grant a temporary restraining order that would extend until the next hearing in this case.
Of course, this is narrow relief, focused only on the Quasney-Sandler marriage. “Should Ms. Quasney pass away in Indiana,” wrote Young, “the court orders Willian C. VanNess II, M.D., in his official capacity as the Commissioner of the Indiana State Department of Health and all those acting in concert, to issue a death certificate that records her marital status as ‘married’ and lists Plaintiff Amy Sandler as the ‘surviving spouse’.”
Despite the narrowness of this relief, limited to one couple, Young’s opinion communicates the likelihood that he will be ruling for the plaintiffs on the merits before very long, making Indiana the first state within the 7th Circuit to generate a ruling on marriage equality likely to go to the circuit court of appeals.
Plaintiffs in this case are represented by Barbara J. Baird, an Indianapolis attorney, pro bono attorneys from the Chicago office of Kirkland & Ellis, and attorneys from the Chicago and Dallas offices of Lambda Legal. The defendants include several county clerks, the state Health Commissioner, and the state Attorney General, all sued in their official capacities.
Judge Young was appointed to the court by President Bill Clinton, and is the Chief Judge of the Southern District of Indiana.