14-2037 #13

IN THE
UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 14-2037

MARILYN RAE BASKIN, et al.,
Plaintiffs/Appellees,

v.

PENNY BOGAN, in her official capacity as Boone County Clerk, et al.,
Defendants/Appellants.

On Appeal from the United States District Court for the
Southern District of Indiana, No. 1:14-cv-355-RLY-TAB
The Honorable Richard L. Young, Judge

BRIEF AND REQUIRED SHORT APPENDIX OF APPELLANTS

ROBERT V. CLUTTER
Kirtley, Taylor, Sims, Chadd &
Minnette, P.C.
117 W. Main Street
Lebanon, IN 46052
(765) 483-8549
bclutter@kirtleytaylorlaw.com
Counsel for Penny Bogan

DARREN J. MURPHY
Assistant Hamilton County Attorney
694 Logan St.
Noblesville, IN 46060
(317) 773-4212
dmurphy@ori.net
Counsel for Peggy Beaver

GREGORY F. ZOELLER
Attorney General of Indiana
THOMAS M. FISHER
Solicitor General
Office of the Attorney General
IGC South, Fifth Floor
302 W. Washington Street
Indianapolis, IN 46204
(317) 232-6255
Tom.Fisher@atg.in.gov
Counsel for Greg Zoeller and William
C. VanNess II, M.D.

NANCY MOORE TILLER
Nancy Moore Tiller & Associates
11035 Broadway, Suite A
Crown Point, IN 46307
(219) 662-2300
nmt@tillerlegal.com
Counsel for Michael A. Brown

Case: 14-2037 Document: 13 Filed: 06/20/2014 Pages: 81

i
TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................................... iii
JURISDICTIONAL STATEMENT ............................................................................... 1
STATEMENT OF THE ISSUES ................................................................................... 2
STATEMENT OF THE CASE ....................................................................................... 2
SUMMARY OF THE ARGUMENT .............................................................................. 7
STANDARD OF REVIEW ........................................................................................... 10
ARGUMENT ................................................................................................................ 11
I. Until the Supreme Court Addresses the Constitutionality of
Traditional Marriage Definitions, Injunctive Relief of Any Type
Against Such Laws Is Inappropriate ..................................................... 11
A. In challenges to traditional marriage definitions, courts
around the Nation, including the Supreme Court, have ruled
that injunctions are not appropriate prior to final appellate
resolution of the constitutionality of such definitions ................ 12
B. Preliminary injunctive relief is inappropriate because
Plaintiffs have not asserted any legally cognizable
irreparable harm traceable to any Defendant ............................ 13
II. Plaintiffs Due Process and Equal Protection Same-Sex Marriage
Claims Fail on the Merits ...................................................................... 19
A. For state government, marriage is regulation ........................... 19
B. No substantive constitutional right to same-sex marriage
exists ............................................................................................ 21
C. Due process and equal protection principles do not compel
recognition of other States same-sex marriages ........................ 24
1. There is no due process right to interstate marriage
recognition, particularly where a marriage
contravenes public policy .................................................. 25
2. Indianas refusal to recognize the Quasney-Sandler
marriage does not contravene the Equal Protection
Clause ................................................................................ 31
D. Indianas traditional marriage definition is constitutional ....... 34
1. Limiting marriage regulation to the union of a man
and a woman does not implicate a suspect (or quasi-
suspect) class ..................................................................... 34

ii
a. Traditional marriage does not discriminate
based on sex ............................................................ 35
b. Traditional marriage does not discriminate
based on sexual orientation ................................... 36
c. Homosexuals do not constitute a suspect class ..... 38
2. Traditional marriage satisfies constitutional review ...... 41
a. States recognize opposite-sex marriages to
encourage responsible procreation, and this
rationale does not apply to same-sex couples ....... 42
b. Many courts have rejected the theory that
traditional marriage is about homosexual
animus .................................................................... 46
3. No other limiting principle for marriage is apparent ...... 47
CONCLUSION ............................................................................................................. 52
CERTIFICATE OF WORD COUNT ........................................................................... 53
CERTIFICATE OF SERVICE ..................................................................................... 54
REQUIRED SHORT APPENDIX ............................................................................... 55


iii
TABLE OF AUTHORITIES

CASES
Adams v. Howerton,
486 F. Supp. 1119 (C.D. Cal. 1980) ........................................................................ 43
Adarand Constructors, Inc. v. Pena,
515 U.S. 200 (1995) ................................................................................................ 30
Andersen v. King Cnty.,
138 P.3d 963 (Wash. 2006) ............................................................................... 42, 43
Aviation Consumer Action Project v. Washburn,
535 F.2d 101 (D.C. Cir. 1976) ................................................................................ 10
Baker v. Nelson,
191 N.W.2d 185 (Minn. 1971) ................................................................................ 43
Baker v. Nelson,
409 U.S. 810 (1972) ............................................................................................ 9, 21
Baker v. Wade,
769 F.2d 289 (5th Cir. 1985) .................................................................................. 38
Bartrom v. Adjustment Bureau, Inc.,
618 N.E.2d 1 (Ind. 1993) ........................................................................................ 20
Bd. of Trs. of Univ. of Ala. v. Garrett,
531 U.S. 356 (2001) ................................................................................................ 41
Bishop v. United States ex rel. Holder,
962 F. Supp. 2d 1252 (N.D. Okla. 2014) ................................................................ 35
Bostic v. Rainey,
970 F. Supp. 2d 456 (E.D. Va. 2014) ...................................................................... 48
Bucca v. State,
128 A.2d 506 (N.J. Super. Ct. Ch. Div. 1957) ........................................................ 27
C.E.W. v. D.E.W.,
845 A.2d 1146 (Me. 2004) ....................................................................................... 48
Catalano v. Catalano,
170 A.2d 726 (Conn. 1961) ..................................................................................... 27

iv
CASES [CONTD]
Citizens for Equal Prot. v. Bruning,
455 F.3d 859 (8th Cir. 2006) ...................................................................... 19, 38, 43
City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432 (1985) ................................................................................................ 39
Conaway v. Deane,
932 A.2d 571 (Md. 2007) ........................................................................................ 43
Cook v. Cook,
104 P.3d 857 (Ariz. Ct. App. 2005) ........................................................................ 27
Cook v. Gates,
528 F.3d 42 (1st Cir. 2008) ..................................................................................... 38
Cunningham v. Cunningham,
206 N.Y. 341 (1912) ................................................................................................ 28
Davis v. FEC,
554 U.S. 724 (2008) ................................................................................................ 15
Dean v. District of Columbia,
653 A.2d 307 (D.C. 1995) ........................................................................................ 43
Equal. Found. of Greater Cincinnati, Inc. v. City of Cincinnati,
128 F.3d 289 (6th Cir. 1997) .................................................................................. 38
Freedom from Religion Found., Inc. v. Obama,
641 F.3d 803 (7th Cir. 2011) .................................................................................. 14
Gonzales v. North Twp. of Lake Cnty.,
4 F.3d 1412 (7th Cir. 1993) .................................................................................... 14
Goodridge v. Dept of Pub. Health,
798 N.E.2d 941 (Mass. 2003) ................................................................................. 24
Goodwin v. George Fischer Foundry Sys., Inc.,
769 F.2d 708 (11th Cir. 1985) ................................................................................ 26
Harris v. City of Zion,
927 F.2d 1401 (7th Cir. 1991) ................................................................................ 14
Hawkins v. Moss,
503 F.2d 1171 (4th Cir. 1974) ................................................................................ 25

v
CASES [CONTD]
Hemphill v. Orloff,
277 U.S. 537 (1928) ................................................................................................ 25
Herbert v. Kitchen,
134 S. Ct. 893 (Jan. 6, 2014) .................................................................................. 12
Hernandez v. Robles,
805 N.Y.S.2d 354 (N.Y. App. Div. 2005) ................................................................ 35
Hernandez v. Robles,
855 N.E.2d 1 (N.Y. 2006) ............................................................................ 43, 44, 46
Hesington v. Estate of Hesington,
640 S.W.2d 824 (Mo. Ct. App. 1982) ...................................................................... 27
Hohe v. Casey,
868 F.2d 69 (3d Cir. 1989) ...................................................................................... 10
Illinois Bell Tel. Co. v. WorldCom Techs., Inc.,
157 F.3d 500 (7th Cir. 1998) .................................................................................. 11
In re Kandu,
315 B.R. 123 (Bankr. W.D. Wash. 2004) ............................................................... 43
In re M.C.,
195 Cal. App. 4th 197 (2011) .................................................................................. 49
In re Marriage of J.B. & H.B.,
326 S.W.3d 654 (Tex. App. 2010) ............................................................... 43, 44, 47
In re Parentage of L.B.,
122 P.3d 161 (Wash. 2005) ..................................................................................... 48
Jackson v. Abercrombie,
884 F. Supp. 2d 1065 (D. Haw. 2012) ........................................................ 35, 42, 43
Johnson v. Robison,
415 U.S. 361 (1974) ................................................................................................ 41
Kelderhaus v. Kelderhaus,
467 S.E.2d 303 (Va. Ct. App. 1996) ....................................................................... 27
Kerrigan v. Commr of Pub. Health,
957 A.2d 407 (Conn. 2008) ..................................................................................... 24

vi
CASES [CONTD]
King v. Mullins,
171 U.S. 404 (1898) ................................................................................................ 30
Kitchen v. Herbert,
961 F. Supp. 2d 1181 (D. Utah 2013) .................................................................... 12
LaChappelle v. Mitten,
607 N.W.2d 151 (Minn. Ct. App. 2000) .................................................................. 49
Lawrence v. Texas,
539 U.S. 558 (2003) ......................................................................................... passim
Lofton v. Secy of the Dept of Children & Family Servs.,
358 F.3d 804 (11th Cir. 2004) .......................................................................... 38, 43
Loving v. Virginia,
388 U.S. 1 (1967) .................................................................................. 21, 35, 37, 38
Manning v. Hunt,
119 F.3d 254 (4th Cir. 1997) .................................................................................. 11
Mason v. Mason,
775 N.E.2d 706 (Ind. Ct. App. 2002) .......................................................... 29, 30, 32
Morrison v. Sadler,
821 N.E.2d 15 (Ind. Ct. App. 2005) ................................................................. passim
Osoinach v. Watkins,
180 So. 577 (Ala. 1938) ........................................................................................... 27
People v. Ezeonu,
588 N.Y.S.2d 116 (N.Y. Crim. Div. 1992) .............................................................. 27
Pers. Admr of Mass. v. Feeney,
442 U.S. 256 (1979) ................................................................................................ 37
Preston v. Thompson,
589 F.2d 300 (7th Cir. 1978) ............................................................................ 10, 17
Price-Cornelison v. Brooks,
524 F.3d 1103 (10th Cir. 2008) .............................................................................. 38
Reno v. Flores,
507 U.S. 292 (1993) ................................................................................................ 45

vii
CASES [CONTD]
Roche v. Washington,
19 Ind. 53 (1862) ..................................................................................................... 29
Romer v. Evans,
517 U.S. 620 (1996) .......................................................................................... 39, 40
Sclamberg v. Sclamberg,
41 N.E.2d 801 (Ind. 1942) ...................................................................................... 29
Schroeder v. Hamilton Sch. Dist.,
282 F.3d 946 (7th Cir. 2002) .................................................................................. 38
Sevcik v. Sandoval,
911 F. Supp. 2d 996 (D. Nev. 2012) ..................................................... 18, 35, 36, 43
Sherman v. Cmty. Consol. Sch. Dist. 21 of Wheeling Twp.,
980 F.2d 437 (7th Cir. 1992) .................................................................................. 18
Siegel v. LePore,
234 F.3d 1163 (11th Cir. 2000) .............................................................................. 11
Singer v. Hara,
522 P.2d 1187 (Wash. Ct. App. 1974) .............................................................. 43, 44
Smelt v. County of Orange,
374 F. Supp. 2d 861 (C.D. Cal. 2005) ..................................................................... 43
SmithKline Beecham Corp. v. Abbott Labs.,
740 F.3d 471 (9th Cir. 2014) .................................................................................. 38
Standhardt v. Superior Court ex rel. Cnty. of Maricopa,
77 P.3d 451 (Ariz. Ct. App. 2003) .............................................................. 42, 43, 46
Steel Company v. Citizens for a Better Environment,
523 U.S. 83 (1998) ............................................................................................ 13, 14
Steffan v. Perry,
41 F.3d 677 (D.C. Cir. 1994) .................................................................................. 38
Tigner v. Texas,
310 U.S. 141 (1940) ................................................................................................ 41
United Air Lines, Inc. v. Air Line Pilots Assn, Intl,
563 F.3d 257 (7th Cir. 2009) .................................................................................. 10

viii
CASES [CONTD]
United States v. Windsor,
133 S. Ct. 2675 (2013) ..................................................................................... passim
V.C. v. M.J.B.,
748 A.2d 539 (N.J. 2000) ........................................................................................ 49
Valley Forge Christian College v. Americans United for Separation of Church &
State, Inc.,
454 U.S. 464 (1982) ................................................................................................ 14
Varnum v. Brien,
763 N.W.2d 862 (Iowa 2009) .................................................................................. 24
Veney v. Wyche,
293 F.3d 726 (4th Cir. 2002) .................................................................................. 38
Walgreen Co. v. Sara Creek Prop. Co.,
966 F.2d 273 (7th Cir. 1992) .................................................................................. 10
Washington v. Davis,
426 U.S. 229 (1976) ................................................................................................ 36
Washington v. Glucksberg,
521 U.S. 702 (1997) .......................................................................................... 23, 24
Wilson v. Ake,
354 F. Supp. 2d 1298 (M.D. Fla. 2005) .................................................................. 43
Winter v. Natural Res. Def. Council, Inc.,
555 U.S. 7 (2008) .................................................................................................... 10
Wolf v. Walker,
No. 14-cv-64-bbc, 2014 WL 2693963 (W.D. Wis. June 13, 2014) .......................... 12
Woodward v. United States,
871 F.2d 1068 (Fed. Cir. 1989) ............................................................................... 38
FEDERAL STATUTES
28 U.S.C. 1292(a)(1) .................................................................................................... 2
28 U.S.C. 1331 ............................................................................................................ 1
28 U.S.C. 1343 ............................................................................................................. 1

ix
FEDERAL STATUTES [CONTD]
42 U.S.C. 1983 ............................................................................................................. 1
STATE STATUTES
13 Del. Code 8-201 .................................................................................................... 48
Act of Jan. 26, 1818, Chapter 34, 1 ............................................................................ 3
D.C. Code 16-831.01 et seq. ....................................................................................... 48
Ind. Code 4-6-1-6 ....................................................................................................... 18
Ind. Code 6-3-4-2 ....................................................................................................... 20
Ind. Code 29-1-2-1 ..................................................................................................... 20
Ind. Code 29-1-2-14 ................................................................................................... 20
Ind. Code 30-4-2.1-9 .................................................................................................. 20
Ind. Code 31-1-1-1 ....................................................................................................... 3
Ind. Code 31-7-1-2 ....................................................................................................... 3
Ind. Code 31-11-1-1 ............................................................................................ passim
Ind. Code 31-11-1-1(a) ................................................................................................. 3
Ind. Code 31-11-1-1(b) ......................................................................................... 1, 3, 6
Ind. Code 31-11-1-3 ................................................................................................... 20
Ind. Code 31-11-4-2 ................................................................................................... 18
Ind. Code 31-11-4-4 ................................................................................................... 28
Ind. Code 31-11-4-11 ................................................................................................. 28
Ind. Code 31-14-7-1 ................................................................................................... 20
Ind. Code 31-11-8-6 ............................................................................................. 28, 31
Ind. Code 31-15-2-3 ................................................................................................... 20
Ind. Code 31-15-2-16 ................................................................................................. 20

x
STATE STATUTES [CONTD]
Ind. Code 31-15-7-4 ................................................................................................... 21
Ind. Code 31-16-14-1 ................................................................................................. 20
Ind. Code 31-16-14-4 ................................................................................................. 20
Ind. Code 34-46-3-1(4) ............................................................................................... 20
Ind. Code 35-46-1-6 ................................................................................................... 20
Pub. L. No. 180-1986, 1 ............................................................................................... 3
Pub. L. No. 198-1997, 1 ............................................................................................... 3
RULES
Fed. R. Civ. P. 65 ......................................................................................................... 17
OTHER AUTHORITIES
Frank Bruni, The New Gay Orthodoxy, N.Y. Times, Apr. 5, 2014, available at
http://www.nytimes.com/2014/04/06/opinion/sunday/bruni-the-new-gay-
orthodoxy ................................................................................................................ 40
Harvey M. Applebaum, Miscegenation Statutes: A Constitutional and Social
Problem, 53 Geo. L.J. 49 (1964) ............................................................................. 38
Jonathan Turley, One Big, Happy Polygamous Family, NY Times,
July 21, 2011 ........................................................................................................... 51
Joseph Story, Commentaries on the Conflict of Laws 113a (Little Brown,
& Co. 6th ed. 1865) ................................................................................................. 27
Morgan Little, Gay Marriage Movement Wins Significant Victories in 2013,
LA Times (Dec. 9, 2013), available at http://www.latimes.com/nation/nation
now/ la-pn-gay-marriage-movement-gains-2013-20131206,0,1888807.
story#axzz2zdVzLoIA ............................................................................................. 39
Restatement (Second) of Conflict of Laws (1971) ....................................................... 26
Richard A. Posner, Sex and Reason (1992) ................................................................. 21
Richard Posner, Should There Be Same-Sex Marriage? And If So, Who Should
Decide? 95 Mich. L. Rev. 1578 (1997) .................................................. 23, 24, 35, 40

xi
OTHER AUTHORITIES [CONTD]
Steve Sanders, The Constitutional Right to (Keep Your) Same-Sex Marriage,
110 Mich. L. Rev. 1421 (2012) ................................................................................ 31
Tony Cook & Barb Berggoetz, Same-Sex Marriage Ban Wont be on November
Ballot, The Indianapolis Star (Feb. 14, 2014), available at
http://www.indystar.com/story/news/politics/2014/02/13/hjr-3-last-minute-
maneuver-could-spare-2nd-sentence-/5455299/ .................................................... 39
Willystine Goodsell, A History of the Family as a Social and Educational
Institution (The Macmillan Company 1915) ......................................................... 49


JURISDICTIONAL STATEMENT

Same-sex couples and their minor children, including one couple that was
married in Massachusetts, brought this action pursuant to 42 U.S.C. 1983 seeking
a declaratory judgment, temporary restraining order, and preliminary and
permanent injunctions against Defendants, state and local government officials,
with regard to Indiana Code 31-11-1-1, which sets forth Indianas traditional
definition of marriage. District Court Docket Number (Doc. No.) 1 at 33-34.
Plaintiffs claimed that Section 31-11-1-1 violates the Due Process and Equal
Protection Clauses of the Fourteenth Amendment to the United States
Constitution. Id. at 33. The district court has subject-matter jurisdiction over this
case under 28 U.S.C. 1331 and 1343.
On May 8, 2014, the district court filed its Entry on Plaintiffs Motion for a
Preliminary Injunction enjoining Defendants and all those acting in concert . . .
from enforcing Indiana statute 31-11-1-1(b) against recognition of Plaintiffs, Niki
Quasneys and Amy Sandlers, valid out-of-state marriage and holding that the
State of Indiana must recognize their marriage. Appellants Short Appendix
(Short App.) 13.
Defendants filed a Notice of Appeal on May 8, 2014, seeking review of the
district courts preliminary injunction. Doc. No. 66. Also on that date, Defendants
filed with the district court a motion to stay enforcement of the preliminary
injunction pending appeal. Doc. No. 68. That motion remains pending. This Court

2
has jurisdiction over this interlocutory appeal of an injunction pursuant to 28
U.S.C. 1292(a)(1).
STATEMENT OF THE ISSUES
1. Whether a preliminary injunction commanding state and local
government officials to recognize an out-of-state same-sex marriage is appropriate
where (1) the Supreme Court and lower federal courts have universally stayed other
similar injunctions whenever contested; (2) the injunction purports to remedy
intangible harms of stigma and indignity apart from any cognizable Article III
harm; and (3) the only possible cognizable Article III injury can be adequately
addressed following final judgment.
2. Whether, for purposes of government-regulated marriage, the
Fourteenth Amendments Due Process Clause requires States to license and
regulate same-sex marriages, or recognize and regulate same-sex marriages
licensed in other States.
3. Whether, for purposes of government-regulated marriage, the
Fourteenth Amendments Equal Protection Clause requires a State to license and
regulate same-sex marriages, or recognize and regulate same-sex marriages
licensed in other States, on the same terms that the State licenses, recognizes, and
regulates opposite-sex marriages.
STATEMENT OF THE CASE
1. While Indianas current marriage-definition statute was enacted in
1997, Indiana has always defined marriage as the union of one man and one woman

3
and has never licensed, recognized, or regulated same-sex marriages. By 1818two
years after Indiana became a State, the legislature had defined marriage as an
opposite-sex institution. See Act of Jan. 26, 1818, ch. 34, 1, Laws of the State of
Indiana 224 (1818) (That male persons of the age of fourteen years, and female
persons of the age of twelve years . . . may be joined in marriage.).
This definition has been substantially preserved for nearly two centuries.
Before 1986, a statute provided that [a] male who has reached his seventeenth
birthday may marry a female who has reached her seventeenth birthday . . . . Ind.
Code 31-1-1-1. From 1986 to 1997, it said that [o]nly a female may marry a
male[, and o]nly a male may marry a female. Pub. L. No. 180-1986, 1, 2 Acts
1986 1800 (codified at Ind. Code 31-7-1-2). In 1997, the legislature re-enacted this
exact wording at Indiana Code Section 31-11-1-1(a), and added that [a] marriage
between persons of the same gender is void in Indiana even if the marriage is lawful
in the place where it is solemnized. Pub. L. No. 198-1997, 1 (codified at Ind. Code
31-11-1-1(b)).
2. On March 10, 2014, Plaintiffs Marilyn Rae Baskin, Esther Fuller,
Bonnie Everly, Linda Judkins, Dawn Carver, and Pamela Eanes filed a Complaint
against Indiana Attorney General Greg Zoeller, Boone County Clerk Penny Bogan,
Porter County Clerk Karen M. Martin, Lake County Clerk Michael A. Brown, and
Hamilton County Clerk Peggy Beaver, seeking a declaration that Indianas current
marriage definition statute, Indiana Code 31-11-1-1, violates Plaintiffs rights
under the Due Process Clause and Equal Protection Clause of the Fourteenth

4
Amendment to the United States Constitution. Doc. No. 1 at 24. In their
Complaint, Plaintiffs also sought a permanent injunction (1) enjoining enforcement
by all Defendants of Indiana Code 31-11-1-1, and (2) requiring the Defendant
Clerks to accept applications and issue marriage license to same-sex couples on the
same terms as different-sex couples and to record the valid marriages of same-sex
couples from other jurisdictions on the same terms as the valid marriages of
different-sex couples from other jurisdictions. Id.
Plaintiffs filed their First Amended Complaint on March 31, 2014.
Appellants Appendix (App) 1. Plaintiffs Amended Complaint added seven new
plaintiffs: Henry Greene, Glenn Funkhouser, and their minor child C.A.G.; and
Nikole Quasney, Amy Sandler, and their minor children A.Q.-S. and M.Q.-S. Id.
The Amended Complaint also added as a Defendant the Commissioner of the
Indiana State Department of Health, William C. VanNess II, M.D. Id. at 2.
In addition to the new parties, Plaintiffs Amended Complaint also sought
relief relating specifically to Plaintiffs Amy Sandler and Nikole Quasney. Id. at 25-
26. Quasney and Sandler are Indiana residents who were married in the
Commonwealth of Massachusetts on August 29, 2013. Id. at 9. They have two
daughters, Plaintiffs A.Q.-S. and M.Q.-S. Id. Quasney suffers from Stage IV
ovarian cancer. Id. at 10. In the Amended Complaint, the Quasney-Sandler couple
and their children requested a temporary restraining order and/or preliminary
injunction:
i. enjoining Defendants and all those acting in concert
from enforcing Indianas laws prohibiting recognition

5
of Plaintiffs Niki Quasney and Amy Sandlers legal
out-of-state marriage; [and]

ii. should Plaintiff Niki Quasney pass away in Indiana,
ordering DEFENDANT COMMISSIONER OF
INDIANA STATE DEPARTMENT OF HEALTH and
all those acting in concert to issue to Plaintiff Amy
Sandler a death certificate that records her marital
status as married or widowed and that lists her as
the surviving spouse; said order shall include a
requirement that Defendant VanNess issues directives
to local health departments, funeral homes,
physicians, coroners, medical examiners, and others
who assist with the completing of Indiana death
certificates explaining their duties under the order of
this Court[.]

Id. at 33-34. Plaintiffs also asked that any injunction require Commissioner
VanNess to change all appropriate forms, certificates, policies, and instructions in
order to recognize marriage applications and marriages of same-sex couples. Id. at
33.
On March 31, 2014, the same day Plaintiffs filed their Amended Complaint,
Plaintiffs Sandler, Quasney, A.Q.-S., and M.Q.-S. also filed a Motion for Temporary
Restraining Order and Preliminary Injunction.
1
Doc. No. 31. All Plaintiffs filed a
Motion for Summary Judgment on April 3, 2014, and Defendants filed a cross-
Motion for Summary Judgment on April 22, 2014. Doc. Nos. 38, 55.
On April 10, 2014, the district court held a hearing on the Motion for
Temporary Restraining Order. Doc. No. 44. The court orally granted the motion
that same day, with a formal Order following on April 18, 2014. Id.; App. 57.

1
The remaining plaintiffs (Baskin, Fuller, Everly, Judkins, Carver, Eanes, Greene,
Funkhouser, and C.A.G.) filed a separate Motion for Preliminary Injunction on April 3,
2014, but withdrew the motion before the district court could rule on it. Doc. Nos. 35, 65.

6
Under the TRO, which expired by its own terms on May 8, 2014, Defendants were
enjoined from enforcing Indiana Code 31-11-1-1(b) against Plaintiffs Quasney and
Sandler and the state of Indiana was required to recognize only their marriage.
App. 66-67. The TRO also required Commissioner VanNess, in the event that
Quasney passes away in Indiana, to issue a death certificate listing Quasney and
Sandler as married and Sandler as the surviving spouse. Id. at 66.
The district court held a hearing on the parties cross-motions for summary
judgment and on the Quasney-Sandler couples motion for preliminary injunction on
May 2, 2014. Doc. No. 63. On May 8, 2014, the district court issued an order
granting the motion for preliminary injunction. Short App. 2. The court ruled that
Quasney and Sandler had a reasonable likelihood of success on the merits of their
equal protection and due process claims, id. at 8-9, and that the balance of harms
weighed in their favor. Id. at 13. The court enjoined Defendants from enforcing
Indiana statute 31-11-1-1(b) against recognition of Plaintiffs, Niki Quasneys and
Amy Sandlers, valid out-of-state marriage and required the State of Indiana [to]
recognize their marriage. Id. In addition, in the event that Quasney passes away
in Indiana, the court ordered Commissioner VanNess to issue a death certificate
that records her marital status as married and lists Sandler as the surviving
spouse. Id. Finally, as in its TRO, the court ordered Commissioner VanNess to
issue directives to local health departments, funeral homes, physicians, coroners,
and medical examiners explaining their duties with respect to the death certificate.
Id. at 13-14.

7
The Order stated that the preliminary injunction will remain in force until
the court renders judgment on the merits of the Plaintiffs claims. Id. at 14. There
has been no ruling on the merits as of this filing; the parties cross-motions for
summary judgment remain pending.
Defendants Zoeller, VanNess, Bogan, Brown, and Beaver filed their Notice of
Appeal on May 8, 2014. Doc. No. 66. That same day, these Defendants filed in the
district court a Motion for Stay Pending Appeal.
2
Doc. No. 68. Briefing is
completed on that motion and the parties now await the district courts decision.
SUMMARY OF THE ARGUMENT

With respect to state governments involvement, marriage is regulation. It is
a means of enticing individuals whose sexual intercourse may produce children to
enter voluntarily into a relationship that the government recognizes and regulates
for the sake of protecting and providing for any children the couples sexual union
may produce. The only couples that fall into this category are opposite-sex couples,
which is why (at least as a governmental matter) marriage has traditionally been
limited to them. Nowadays, challenges to traditional marriage definitions and
regulatory structures are hardly novel, but they are no less startling and
noteworthy for their stated objectiveto extend voluntary government regulation,
as a matter of constitutional imperative, to couples defined by sexual activity the
Supreme Court declared off limits to mandatory government regulation in Lawrence
v. Texas.

2
Defendant Karen Martin is not a party to this appeal and did not participate in the stay
motion.

8
The reason same-sex couples seek this recognition, of course, is that, while a
form of regulation as a governmental matter, marriage also carries positive social
and cultural connotations, as well as some exclusive governmental benefits and
protections. But government is not society or culture and cannot compel social
acceptance by fiat. And the point of marriages associated benefits and protections
is to encourage child-rearing environments where parents care for their biological
children in tandem. Same-sex couples do not, as sexual intimates, prompt the same
regulatory concerns as opposite-sex couples. Accordingly, States need not extend
the marriage regulatory scheme to same-sex couples.
This appeal arises from a preliminary injunction ostensibly requiring
Defendants to recognize a Massachusetts same-sex marriage on constitutional
grounds. The constitutional claims fundamentally lack merit, but even aside from
that, a preliminary injunction is not appropriate in this case. First, the Supreme
Court and lower federal courts have stayed all contested injunctionseven final,
permanent injunctionsenforcing similar same-sex marriage claims. These stays
demonstrate that, on balance, injunctive relief of any sort concerning same-sex
marriage is not justified until the Supreme Court addresses the issue. Second, the
injunction targets alleged psychological harms such as stigma, indignity, and the
like, but such harms are not cognizable under Article III, nor are they traceable to
any Defendant in the case. The only concrete, tangible harm traceable to a
Defendant is a potential harm having to do with Quasneys death certificate. But

9
that is not an appropriate target for preliminary relief because it can adequately be
addressed with a final, permanent injunction, if necessary.
On the merits, the Quasney-Sandler couples claims must fail for the
fundamental points made above, but also, more doctrinally, because the rights they
claim have no grounding in constitutional text, history, or structure. There is no
due process or equal protection right to have ones out-of-state same-sex marriage
recognized at home, and no due process or equal protection right to same-sex
marriage outright. Supreme Court cases recognizing a right to marriage have only
to do with opposite-sex couples, not same-sex couples. The Supreme Courts merits
decision rejecting same-sex marriage claims in Baker v. Nelson still controls, and is
unmitigated by last years decision in United States v. Windsora case expressly
confined to its facts that in any case reaffirms broad state authority over marriage.
The most troubling aspect of the constitutional argument for same-sex
marriage, however, is that it has no limiting principle. Neither plaintiffs in this
case nor courts awarding same-sex marriage rights in other cases have identified
any government objective to be attained by regulating the relationships of same-sex
couples. The short-range implication of the efforts to constitutionalize same-sex
marriage is that all relationships are entitled to such recognition and regulation,
whether they involve sex or not, whether they involve two people or more. The
long-range implication is that government has no discernible reason to recognize
and regulate marriage as a limited set of relationships. Ultimately, that is, there is

10
no constitutional argument for same-sex marriage, only an argument against
marriage. This Court should reject that argument and reverse the district court.
STANDARD OF REVIEW
A plaintiff seeking a preliminary injunction must establish that he is likely
to succeed on the merits, that he is likely to suffer irreparable harm in the absence
of preliminary relief, that the balance of equities tips in his favor, and that an
injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555
U.S. 7, 20 (2008). Preliminary injunctive relief must be narrowly tailored to
remedy the specific harm shown. Aviation Consumer Action Project v. Washburn,
535 F.2d 101, 108 (D.C. Cir. 1976). A district courts grant of a preliminary
injunction is reviewed de novo as to its legal conclusions, for abuse of discretion as
to its balance of the equities, and for clear error as to its factual findings. See
United Air Lines, Inc. v. Air Line Pilots Assn, Intl, 563 F.3d 257, 269 (7th Cir.
2009).
In the injunction context, irreparable harm is harm that is not rectifiable
by the entry of a final judgment. Walgreen Co. v. Sara Creek Prop. Co., 966 F.2d
273, 275 (7th Cir. 1992) (citations omitted). And while in some cases [t]he
existence of a continuing constitutional violation constitutes proof of an irreparable
harm, Preston v. Thompson, 589 F.2d 300, 303 n.3 (7th Cir. 1978), [c]onstitutional
harm is not necessarily synonymous with the irreparable harm necessary for
issuance of a preliminary injunction. Hohe v. Casey, 868 F.2d 69, 73 (3d Cir. 1989).

11
Even where constitutional violations are alleged, there must be a clear
showing of irreparable injury which is neither remote nor speculative, but actual
and imminent. Manning v. Hunt, 119 F.3d 254, 264-65 (4th Cir. 1997) (internal
quotation marks omitted). See also Siegel v. LePore, 234 F.3d 1163, 1177-78 (11th
Cir. 2000) (per curiam) (rejecting the proposition that the irreparable injury needed
for a preliminary injunction can properly be presumed from a substantially likely
equal protection violation (citation omitted)).
In addition to irreparable harm, a plaintiff seeking a preliminary injunction
must also show that the probability of success on the merits is sufficiently highor
the injury from the enforcement of the order sufficiently greatto warrant a
conclusion that the balance of error costs tilts in favor of relief. Illinois Bell Tel.
Co. v. WorldCom Techs., Inc., 157 F.3d 500, 503 (7th Cir. 1998). When the party
opposing the motion for a preliminary injunction is a political branch of
government, the restraint for issuing such an injunction is particularly high due to
public policy considerations, as the court must consider that all judicial
interference with a public program has the cost of diminishing the scope of
democratic governance. Id.
ARGUMENT

I. Until the Supreme Court Addresses the Constitutionality of
Traditional Marriage Definitions, Injunctive Relief of Any Type
Against Such Laws Is Inappropriate

Indianas traditional definition of marriage merely governs the terms of
governmental regulation and benefits; it does not interfere with private conduct.

12
Accordingly, this constitutional challenge to that longstanding definition is
fundamentally unsuited to preliminary injunctive relief. There is no cognizable
irreparable harm caused by the traditional definition of marriagethe only
meaning of marriage that has ever existed in Indianawhile the parties await a
decision on the merits of this case.
A. In challenges to traditional marriage definitions, courts
around the Nation, including the Supreme Court, have ruled
that injunctions are not appropriate prior to final appellate
resolution of the constitutionality of such definitions

On January 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 (Jan. 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.
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 full effect. Wolf v.
Walker, No. 14-cv-64-bbc, 2014 WL 2693963, at *6 (W.D. Wis. June 13, 2014)
([S]ince [Kitchen], every statewide order enjoining the enforcement of a ban on
same-sex marriage has been stayed, either by the district court or the court of

13
appeals, at least when the state requested a stay.). The thrust of these cases is
difficult 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.
B. Preliminary injunctive relief is inappropriate because
Plaintiffs have not asserted any legally cognizable irreparable
harm traceable to any Defendant

According to the district court, preliminary injunctive relief is appropriate in
this case because Indianas non-recognition statute harms the Plaintiffs in
numerous tangible and intangible ways[.] Short App. 5. Specifically, the district
court concluded that Indiana Code 31-11-1-1 harms Quasney and Sandler by: (1)
denying them the dignity of marital status, id.; (2) causing Niki to drive to
Illinois where her marriage will be recognized in order to receive medical care, id.
at 5, 11; (3) denying Quasney a particular form of death certificate, id. at 11; and (4)
failing to recognize the couples Massachusetts marriage and thus causing them
constitutional harm, id. at 10-11. None of these alleged harms, however, is
sufficient to justify preliminary injunctive relief.
1. To begin, perception of slight to ones dignity is a type of psychological
harm not cognizable under Article III. The district court held 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. Short App. 11-12. But in Steel Company v.

14
Citizens for a Better Environment, 523 U.S. 83 (1998), the Court rejected this very
theory for relief, stating that psychic satisfaction is not an acceptable Article III
remedy because it does not redress a cognizable Article III injury. Id. at 107; see
also Valley Forge Christian College v. Americans United for Separation of Church &
State, Inc., 454 U.S. 464, 485-86 (1982) ([P]sychological consequences presumably
produced by observation of conduct with which one disagrees . . . is not an injury
sufficient to confer standing under Art. III, even though the disagreement is
phrased in constitutional terms.).
This Court, too, has denied relief based on a perceived slight, or a feeling of
exclusion[.] See, e.g., Freedom from Religion Found., Inc. v. Obama, 641 F.3d 803,
806-07 (7th Cir. 2011) ([H]urt feelings differ from legal injury.) In Harris v. City
of Zion, 927 F.2d 1401 (7th Cir. 1991), it held that [t]he requirement that the
plaintiff allege an injury-in-fact, whether economic or noneconomic, excludes
simple indignation as a basis for Article III standing. That the plaintiff may be
offended by the defendants conduct is not enough to confer standing. Id. at 1405;
see also Gonzales v. North Twp. of Lake Cnty., 4 F.3d 1412, 1416 (7th Cir. 1993)
(Offense to moral . . . sensitivities does not constitute an injury in fact and is
insufficient to confer standing.).
Here, aside from the particular death certificate they seek, the Quasney-
Sandler couple alleges no unequal treatment by any Defendant, so their alleged
dignitary harms are not cognizable under Article IIIlet alone sufficient to warrant
injunctive relief. Article III standing to seek an injunction respecting the death

15
certificate does not equate with standing to seek a broader injunction vaguely
demanding unspecified recognition of their marriage. As the Supreme Court has
plainly held, standing rights are not dispensed in gross, but must be evaluated with
respect to each claim for relief. Davis v. FEC, 554 U.S. 724, 734 (2008).
2. Next, no Defendant even remotely causes Quasney to seek medical
care in Illinois rather than at a local hospital. Quasneys allegations on the subject
blame local hospital personnelwho would not afford her the family rate at their
health clubnot any Defendant. App. 53-54. The hospitals decision to base its
health club family rate on Indianas definition of marriage is its own doing and not
a necessary consequence of Indiana law, much less of any actions or omissions by
any Defendant.
Defendants do not control Indiana hospitals and cannot require personnel at
those hospitals to accord recognition to Quasney and Sandler as a married couple,
so there is nothing they can do to address the situation. Indeed, there is no reason
to believe that Quasney even benefits from the present injunction in relation to her
careshe has never asserted that, with an injunction in hand, she has sought
treatment locally rather than by driving to Illinois. Quasneys decision to seek
medical treatment in Illinois does not constitute Article III injury that justifies
federal jurisdiction, much less preliminary injunctive relief, because it has no direct
connection to these Defendants or the Indiana traditional marriage definition.
3. Quasney also claims she will be injured if she passes away before
conclusion of the litigation and her death certificate lists her as unmarried. A

16
preliminary injunction respecting Quasneys death certificate is inappropriate,
however, because any harm would not be irreparable. As the declaration of Hilari
A. Sautbine, a staff attorney for the Indiana State Department of Health, makes
clear, a certificate of death can be amended at the request of any interested person.
App. 69. Any refusal to honor such a request is subject to legal action in state court.
Id. at 69-70. If it later turns out 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. Accordingly, there is no likely irreparable harm
with respect to the accuracy of the certificate of death itself as a permanent record.
Quasney claims to suffer cognizable harm remediable by an injunction based
on her knowledge of what her death certificate will say, id. at 55, but that claim
fails as well. This is nothing more than an injunction targeting psychological harm,
as there is no present unequal treatment to remedy. The possibility of future
unequal treatment can justify a preliminary injunction only where the future harm
could not adequately be redressed following judgment, which is not the case here.
Furthermore, even with a preliminary injunction governing her death
certificate in place, Quasney cannot know anything that would assuage any
perceived insults to her dignity. She claims to suffer indignity knowing that
Indiana does not recognize her marriage or afford it equal status to the marriages
of opposite-sex couples. Id. It is hard to follow how the preliminary injunction
entered by the district court addresses any such indignity. All Quasney knows is
that a district court has ordered the State to do something respecting her death

17
certificate when she passes away. At present she cannot know whether that
action will actually occur, because of course she may outlive the litigation, or, if
sadly she does not, the death certificate may ultimately be changed to show her as
unmarried if Defendants prevail in the end, even if it lists her as married for a time
by dint of a federal judges decree.
So, with a preliminary injunction, Quasney cannot know what her death
certificate will say permanently. All she can know is that her death certificate will
permanently list her as married if and only if her legal position ultimately carries
the day. Neither that knowledge, nor the likelihood that her position will prevail on
the merits, can be affected by the issuance of a preliminary injunction. Accordingly,
the rationale for the preliminary injunction is reduced to circularity: A preliminary
injunction was warranted only because it gave Quasney the satisfaction of knowing
that a preliminary injunction was issued.
It is hard to imagine a more existentially slippery form of preliminary relief
or one less justified by Rule 65 and case law.
4. The district courts final ground for injunctive reliefthe alleged
violation of the Quasney-Sandler couples constitutional rightsis also an
insufficient basis for a preliminary injunction in this case. Ongoing violations of
constitutional rights can constitute irreparable harm justifying an injunction only
where the defendants are actually responsible for such ongoing violations. 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

18
and a daily hour of yard recreation to certain other inmates in order to remedy due
process violation).
Here, no current cognizable injuries suffered by Quasney and Sandler are
traceable to any Defendant. 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 their dignity. See
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).
The district court stated that a preliminary injunction enjoining Defendants
from enforcing the non-recognition statute against Plaintiffs will . . . redress their
claimed injury. Short App. 5. But no Defendant has ever enforced the non-
recognition statute against Quasney and Sandleror against anyone else, for that
matter. The statutes cited by the district court in support of this point have nothing
to do with Quasney. Indiana Code 4-6-1-6 pertains to the Attorney Generals
general duties to attend to litigation, but that has no bearing on Quasney (or on any
other 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).
Indiana Code 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

19
license. Thus, enjoining Defendants cannot plausibly redress any constitutional
injuries to them.
* * *
Quasney and Sandler have not demonstrated sufficient cognizable harm to
justify a preliminary injunction. An injunction against these Defendants seeking to
assuage the couples asserted injuries, without any connection to actions or duties of
the Defendants, should be reversed.
II. Plaintiffs Due Process and Equal Protection Same-Sex Marriage
Claims Fail on the Merits

The district court concluded that the Quasney-Sandler couples due process
and equal protection claims are likely to succeed, implicitly declaring that the wave
of persuasive cases supporting Plaintiffs position permits no dissent. Short App.
7-8 (stating that the court is not persuaded that . . . Indianas anti-recognition law
will suffer a different fate than those around the country and citing recent same-
sex marriage cases decided on due process grounds). Any prognostication in favor of
Plaintiffs is premature, however. The only federal appellate case on point upheld
Nebraskas traditional marriage definition. See Citizens for Equal Prot. v. Bruning,
455 F.3d 859, 871 (8th Cir. 2006). This Court should likewise uphold Indianas
traditional marriage definition on the merits.
A. For state government, marriage is regulation

Fundamentally, as far as state government is concerned, marriage is a
regulatory scheme. Government has a compelling interest in making sure children
are properly cared for, so it uses marriage as a way to attract and regulate those

20
whose sexual intercourse produces children, with the objective that they will stay
together and raise the children in tandem. A demand for same-sex marriage as a
matter of constitutional right is about extending that carrot-and-stick regulation,
not about demanding that government affirm homosexual behavior just for the sake
of doing so.
Some legal benefits of marriagethe regulatory carrotsare exclusive to
that institution (meaning they cannot be replicated by private agreement). They
include, among other things, testimonial privileges (Ind. Code 34-46-3-1(4)), joint
tax filing (Ind. Code 6-3-4-2), the right to receive a share of a deceased spouses
estate even against the spouses will (Ind. Code 29-1-2-1), and the presumption
that fathers are the legal parents of children born to their marriages (Ind. Code
31-14-7-1).
But many exclusive protections of marriage carry the heavy hand of
government and constitute regulatory sticks. These include not only the
aforementioned presumption of parentage, but also spousal support obligations
enforceable both by civil remedy (Ind. Code 31-16-14-1, -4) and criminal sanction
(Ind. Code 35-46-1-6); joint liability for unpaid debts (Bartrom v. Adjustment
Bureau, Inc., 618 N.E.2d 1, 8 (Ind. 1993)); an adulterous spouses forfeiture of a
share in the estate or trust of a deceased spouse (Ind. Code 29-1-2-14; Ind. Code
30-4-2.1-9); prohibition on entering into another marriage absent legal dissolution
(Ind. Code 31-11-1-3); requirement of a judicial decree according to statutory
standards and protocols to effectuate legal dissolution (Ind. Code 31-15-2-3, -16);

21
and the just and reasonable division of all property upon legal dissolution,
regardless of who acquired the property or when (Ind. Code 31-15-7-4).
As the Court considers claims of constitutional right, it is important that it
not lose sight of the essential regulatory nature of government-conferred marriage.
B. No substantive constitutional right to same-sex marriage exists

While the Supreme Court has said that [m]arriage is one of the basic civil
rights of man, fundamental to our very existence and survival, Loving v. Virginia,
388 U.S. 1, 12 (1967) (internal quotation marks omitted), neither it (nor this Court)
has held that the constitutional right to marry encompasses same-sex marriages.
Cf. Richard A. Posner, Sex and Reason 312-13 (1992) ([B]ut of course the Court [in
Loving] was thinking of heterosexual marriage.). To the contrary, in Baker v.
Nelson, 409 U.S. 810 (1972), decided just five years after Loving, the Court
dismissed for want of a substantial federal questiona decision on the meritsa
case presenting the right to same-sex marriage as both a matter of due process and
equal protection. App. 75.
The Supreme Courts decision in United States v. Windsor, 133 S. Ct. 2675
(2013), striking down Congresss decision to confine marriage to opposite-sex
couples for federal purposes even if a same-sex marriage was recognized by a state,
does not undermine Baker. First, simply as a matter of doctrinal contours, Windsor
is self-limited. In no uncertain terms, the Windsor majority forcefully stated that
[t]his opinion and its holding are confined to [New Yorks] lawful marriages. Id. at

22
2696. It is therefore improper to extrapolate from this opinion any rule that
affects any other States marriage laws.
Nor, even aside from that disclaimer, does the logic of Windsor imply that
traditional state marriage laws are invalid. At the time Congress enacted Section 3
of the federal Defense of Marriage Act (DOMA) in 1996, the federal government
largely treated all marriages recognized by a State as valid. When States started
recognizing same-sex marriages beginning in 2003, that was no longer true because
DOMA limited federal recognition to opposite-sex couples. Congresss decision to
change the terms for accepting state marriagesnot the baseline definition of
marriage itselfis what troubled the Court. See id. at 2693-94. Thus, the Court
invalidated Section 3 of DOMA as having the purpose and effect to disparage and
to injure those whom the State, by its marriage laws, sought to protect in
personhood and dignity. Id. at 2696 (emphasis added). It did so principally
because Section 3 of DOMA was an unusual deviation from the usual tradition of
recognizing and accepting state definitions of marriage . . . . Id. at 2693 (emphases
added). It was critical to the Courts analysis that New York had previously granted
marital interests that DOMA then threatened. Id. at 2689.
While the Constitution gives its blessing to New York to recognize out-of-
jurisdiction same-sex marriages, id. at 2692 (explaining that New Yorks actions
were without 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

23
constant interaction with each other), it is a considerable leap to conclude that
Windsor establishes a singular vision of a fundamental right to marriage that must
be respected by all States. See Richard Posner, Should There Be Same-Sex
Marriage? And If So, Who Should Decide? 95 Mich. L. Rev. 1578, 1579 (1997)
(finding unconvincing the argument that the courts in the name of the
Constitution should force acceptance of same-sex marriage on all the states at
once). Traditional state marriage definitions are, as Windsor amply affirms, the
usual course of business. Id. at 2691.
Supreme Court precedent more broadly does not support the notion that
there is a fundamental constitutional right to same-sex marriage, or that any
fundamental right to marry includes same-sex couples. Fundamental rights are
those that are objectively, deeply rooted in this Nations history and tradition . . .
and implicit in the concept of ordered liberty, such that neither liberty nor justice
would exist if they were sacrificed. Washington v. Glucksberg, 521 U.S. 702, 720-
21 (1997) (internal quotations and citations omitted). A careful description of the
asserted fundamental liberty interest is required, and courts must exercise the
utmost care whenever [they] are asked to break new ground in this field . . . . Id.
at 720, 721 (internal quotations and citations omitted).
Marriage is a foundational and ancient social institution whose meaning,
until recently, was universally understood as limited to the union of a man and a
woman. Windsor, 133 S. Ct. at 2689. No separate fundamental right to same-sex
marriage is deeply rooted in this Nations history and tradition . . . and implicit in

24
the concept of ordered liberty. Glucksberg, 521 U.S. at 720-21. See also Posner,
Should There Be Same-Sex Marriage?, supra, at 1579 ([H]omosexual marriage has
nowhere been a common practice, even in societies in which homosexuality was
common.).
Barely a decade ago, in 2003, Massachusetts became the first State to extend
the definition of marriage to same-sex couples. Goodridge v. Dept of Pub. Health,
798 N.E.2d 941, 969 (Mass. 2003). Other state supreme courts followed suit, see
Kerrigan v. Commr of Pub. Health, 957 A.2d 407, 482 (Conn. 2008), Varnum v.
Brien, 763 N.W.2d 862, 906 (Iowa 2009), but only twelve States and the District of
Columbia have extended marriage to same-sex unions legislatively. Same-sex
marriage cannot be transformed into a fundamental right by repackaging marriage
as the freedom to select the partner of ones choice, Doc. 36 at 8, because that
definition leaves out the only part of the asserted right that matters: that the
claimants seek this right as same-sex couples.
C. Due process and equal protection principles do not compel
recognition of other States same-sex marriages

The district court found that, as a general matter, Indiana recognizes out-
of-state marriages but does not so recognize out-of-state same-sex marriages. Short
App. 9. From this observation alone it concluded that Plaintiffs were likely to
succeed on their constitutional claim for interstate recognition. Id. Indianas
treatment of other States marriages, however, turns on public policy considerations
and, more importantly, a common set of assumptions as to what constitutes a
marriage. The district courts analysis that whether a State must recognize

25
interstate same-sex marriages depends on that States idiosyncratic case law
addressing other marriagesrather than national constitutional normswould
deprive States of equal footing under the Constitution.
Ultimately, whether Indiana can refuse to recognize out-of-state same-sex
marriages turns entirely on whether Indiana may itself adhere to the traditional
definition of marriage. The staggering implications of Plaintiffs broader claim for
interstate marriage recognition starkly illustrate its foundational flaws.
1. There is no due process right to interstate marriage
recognition, particularly where a marriage contravenes
public policy

To begin, there is no federal due process right to have a license issued in one
Statewhether 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 can vest no right in the holder to practice law in
another state.); see also Hemphill v. Orloff, 277 U.S. 537, 544, 549, 551 (1928)
(holding, against a due process challenge, that a corporation permitted to conduct
business in Massachusetts may not do so in Michigan without obtaining a
certificate of authority from the Michigan Secretary of State). Otherwise, States
would have to recognize and treat as valid one anothers law licenses, medical
licenses, concealed-carry gun permits, drivers licenses, and notary public
commissions, just to name a few.
3

3
Even if an out-of-state marriage is viewed as a purely private contractwhich it is not
state and federal constitutions permit rejection of out-of-state contracts that contravene

26
A constitutional theory in contravention of these baseline principles would
effectively require Indiana to conform its marriage policy to the varying marriage
policies enacted in other States. Rather than fostering the States freedom to
experiment with different approaches to difficult social questions, a right to
interstate marriage recognition would empower one laboratory to commandeer the
others, essentially nationalizing the marriage policy of the most inventive State,
including those that might one day permit plural marriages. This is plainly
contrary not only to the usual constitutional rule, but also to the Courts specific
observations about state marriage law prerogatives in Windsor, 133 S. Ct. at 2689-
91.
Marriage-recognition principles are rooted in the common law of comity, not
due process or any other substantive state or federal constitutional doctrine. 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

public policy. See Goodwin v. George Fischer Foundry Sys., Inc., 769 F.2d 708, 712-13 (11th
Cir. 1985) (A state may refuse to enforce a contract, valid in the state where made, if the
contract conflicts with the public policy of that state.).

27
Fourteenth Amendment. See Joseph Story, Commentaries on the Conflict of Laws
113a, at 168 (Little Brown, & Co. 6th ed. 1865) (noting that exceptions to out-of-
state marriage recognition included those positively prohibited by the public law of
a country from motives of policy).
Such public policy exceptions exist across the country. See, e.g., Cook v. Cook,
104 P.3d 857, 860 (Ariz. Ct. App. 2005) ([W]e have long recognized that the
legislature of this state, notwithstanding the general rule, may declare what
marriages are valid (or void) in Arizona even if the marriage pertains to persons
who were in good faith domiciled in the state where the ceremony was performed
and the marriage is valid in that state.) (internal quotations omitted); Kelderhaus
v. Kelderhaus, 467 S.E.2d 303, 304-05 (Va. Ct. App. 1996) (holding that a bigamous
marriage entered into in California is void as a matter of law because it is
contrary to the laws of Virginia and [its] public policy) (internal citations and
quotations omitted); People v. Ezeonu, 588 N.Y.S.2d 116, 117-18 (N.Y. Crim. Div.
1992) (holding that bigamous marriage entered into in Nigeria is repugnant to
public policy of New York and therefore void); Hesington v. Estate of Hesington, 640
S.W.2d 824, 826-27 (Mo. Ct. App. 1982) (denying recognition of a common-law
marriage consummated on a temporary trip to another State); Catalano v.
Catalano, 170 A.2d 726, 728-29 (Conn. 1961) (refusing to recognize uncle-niece
marriage lawfully contracted in Italy); Bucca v. State, 128 A.2d 506, 510 (N.J.
Super. Ct. Ch. Div. 1957) (same); Osoinach v. Watkins, 180 So. 577, 581 (Ala. 1938)
(refusing to recognize a marriage lawfully contracted in Georgia between a man and

28
his uncles widow); Cunningham v. Cunningham, 206 N.Y. 341, 349 (1912) (holding
that a minor female who validly married an adult male in New Jersey could annul
her marriage in New York as repugnant to . . . public policy and legislation). In
none of these cases was there any suggestion whatever that federal due process
rights might guarantee interstate marriage recognition.
Indiana is entirely free, therefore, to treat as void any marriages from other
States that contravene state public policy. Statutorily, the State not only refuses to
recognize out-of-state same-sex marriages, but also any out-of-state marriage
entered into for the purpose of evading Indianas marriage lawsin terms equally
applicable to both same-sex and opposite-sex couples. Indiana Code 31-11-8-6
provides that:
[a] marriage is void if the parties to the marriage:

(1) are residents of Indiana;

(2) had their marriage solemnized in another state with
the intent to:

(A) evade IC 31-11-4-4 [requiring a marriage
license] or IC 31-11-4-11 [precluding issuance
of a license if the applicant is mentally
incompetent or under the influence]; and

(B) subsequently return to Indiana and reside in
Indiana; and

(3) without having established residence in another state
in good faith, return to Indiana and reside in Indiana
after the marriage is solemnized.

Furthermore, as a matter of common law, in what is apparently the only
Indiana Supreme Court decision that addresses an out-of-jurisdiction marriage that

29
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). The parties in
that case conceded voidness, but conceding what the law obviously required does
not undermine the legal principle employed.
The Indiana Supreme Court has otherwise made it clear that the lex loci
principle applies only against a backdrop where all agree as to what constitutes a
valid marriage. More than one hundred forty years ago, the court asked, [W]hat . .
. then constitutes the thing called a marriage? What is it in the eye of the jus
gentium [law of nations]? It is the union of one man and one woman, so long as they
both shall live, to the exclusion of all others, by an obligation which, during that
time, the parties can not, of their own volition and act, dissolve, but which can be
dissolved only by authority of the State. Roche v. Washington, 19 Ind. 53, 57
(1862). Continuing, the court said, [n]othing short of this is a marriage. And
nothing short of this is meant, when it is said, that marriages, valid where made,
will be upheld in other States. Id. This passage confirms the implicit
understanding underlying the lex loci principlethat it works only if all States
basically agree on what constitutes a valid marriage. When other States recognize
same-sex marriages, but Indiana does not, that prerequisite is not met.
The district court cited one decision from the Indiana Court of Appeals that
gave retrospective effect to a marriage from another jurisdiction that could not have
been undertaken in Indiana, Mason v. Mason, 775 N.E.2d 706, 709 (Ind. Ct. App.

30
2002) (recognizing, for purposes of divorce action and division of property, marriage
of first cousins who married under age 65). But one case from the Indiana Court of
Appeals issued in 2002 that essentially seeks to do equity in a particular
circumstance does not conclusively establish Indiana common law governing the
prospective effect of out-of-state marriages that contravene Indiana public policy.
Besides, one fairly recent Indiana intermediate court decisionMasoncannot
trump earlier decisions of the Indiana Supreme Court regarding the circumstances
in which Indiana will recognize out-of-state marriages.
The fundamental issue, moreover, is not about the particulars of Indiana
marriage-recognition precedents, but about whether Indianas statutory refusal to
recognize out-of-state same-sex marriages, as a means of carrying out state public
policy, is consistent with the American constitutional tradition. Ample case law
from around the country, only a small fraction of which is cited above, demonstrates
that it is. Indiana does not suffer some special disability in this regard simply
because the out-of-state recognition issue has not been litigated enough to provide a
robust body of Indiana decisions. The Constitution does not mean one thing in
other states but another in Indiana when it comes to out-of-state recognition of
marriages that contravene state public policy. See, e.g., King v. Mullins, 171 U.S.
404, 422 (1898) (The due process of law enjoined by the fourteenth amendment
must mean the same thing in all the states.); Adarand Constructors, Inc. v. Pena,
515 U.S. 200, 231-32 (1995) (opinion of OConnor, J.) (explaining that the
Constitution imposes upon federal, state, and local governmental actors the same

31
obligation to respect the personal right to equal protection of the laws).
2. Indianas refusal to recognize the Quasney-Sandler
marriage does not contravene the Equal Protection
Clause

The district court concluded that Indiana likely violates the Quasney-Sandler
couples equal protection rights because out-of-state opposite-sex marriages are
generally afforded recognition but out-of-state same-sex marriages are not. Short
App. 9. First, however, it is not clear Quasney and Sandler have standing to assert
this claim. Quasney and Sandler were married in Massachusetts, but were not at
the time residents of Massachusetts; they were residents of Indiana. App. 9.
Knowing that they could not be married in Indiana, they decided to get married
elsewhere, which runs afoul of Indiana Code 31-11-8-6, quoted above. This statute
is neutral with respect to whether the marriage is same-sex or opposite-sex, so to
the extent they married in another State to evade Indianas marriage laws,
Quasney and Sandler are being treated exactly the same as would be a similarly
situated opposite-sex couple. Steve Sanders, The Constitutional Right to (Keep
Your) Same-Sex Marriage, 110 Mich. L. Rev. 1421, 1433-34 (2012) ([E]vasive
marriages are essentially about the right to marry in the first instance. Therefore,
[w]hen an Indiana couple flies to Boston for the weekend to get married, they . . .
have no reasonable expectation from the outset that Indiana will honor their
marriage.). Plaintiffs do not purport to challenge Section 31-11-8-6.
Regardless, for the reasons described in Part II.D.1., infra, the proper level of
scrutiny here is rational basis, and to the extent out-of-state opposite-sex marriages

32
are generally treated as valid under Indiana law but same-sex marriages are not,
that differential treatment is fully justifiable. Generally speaking, opposite-sex
couples whose marriages are recognized here could get married in Indiana anyway,
but same-sex couples could not. While Indiana could refuse recognition to all
opposite-sex marriages from other States, doing so would be pointless given that the
vast majority out-of-state opposite-sex couples who move here could easily obtain
Indiana licenses and have their marriages solemnized.
Furthermore, laws pertaining to opposite-sex marriage do not differ
significantly from one State to the next, and the population of opposite-sex couples
who (1) wish to marry; (2) would not be authorized to marry in Indiana; (3) live in
(or find) a State authorizing them to marry, and (4) return or relocate to Indiana, is
self-evidently quite small. Government no longer encounters many first cousins,
minor teenagers, or mentally disabled individuals seeking marriage. Accordingly,
even if Indianas general recognition of out-of-state opposite-sex marriages results
in occasional retrospective recognition of a marriage that contravenes Indianas
marriage restrictions (such as in Mason), such a possibility does not present an
existential threat to vindication of Indiana marriage policy.
In contrast, the population of same-sex couples married in other States who
will return or relocate to Indiana is presumably quite large, and accepting those
marriages would permit wholesale evasion of Indianas traditional marriage
definition and fatally undercut vindication of state marriage policy. Same-sex
couples living here could easily be married in Illinois (or one of the sixteen other

33
states and District of Columbia that provide same-sex marriage), return to Indiana
and demand prospective recognition, thereby rendering Indianas own definition of
marriage meaningless. So in a very visible and undeniable way, recognizing out-of-
state same-sex marriages would be tantamount to providing for same-sex marriage.
What is more, the decision by some States to recognize same-sex marriages
marks a significant departure not only from Indiana policy but also from the
fundamental understanding of the purpose of marriage embodied by our States
laws. For Indiana, marriage is a regulatory scheme designed to encourage
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). 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
indeed, compellinginterest 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. If Indiana can constitutionally adhere to that

34
definition and thereby refuse to provide for same-sex marriages, it can also refuse to
recognize same-sex marriages from other States.
D. Indianas traditional marriage definition is constitutional
As established above, there is no fundamental right to same-sex marriage
and no fundamental right to interstate marriage recognition. Moreover, Indianas
traditional marriage definition does not draw classifications based on any suspect or
quasi-suspect classes. Accordingly, both for purposes of due process analysis and
equal protection analysis, that definition is valid as long as it is rationally related to
a legitimate government purpose. Quite plainly, it is related to the compelling state
government need to encourage potentially procreative couples to stay together for
the sake of raising children that may result from their sexual intercourse. This
interest does not apply to same-sex couples, so the State need not extend marriage
regulation to such couples.
1. Limiting marriage regulation to the union of a man and a
woman does not implicate a suspect (or quasi-suspect)
class

The traditional definition of marriage existed at the very origin of the
institution and predates by millennia the current political controversy over same-
sex marriage. It neither targets, nor disparately impacts, either sex; nor does it
classify based on sexual orientation or parentage. Accordingly, there is no basis for
subjecting traditional marriage definitions to heightened scrutiny.


35
a. Traditional marriage does not discriminate based
on sex

The traditional definition of marriage draws no distinction based on sex. As
the court observed in Sevcik, 911 F. Supp. 2d at 1005, laws protecting traditional
marriage are not directed toward persons of any particular gender, nor do they
affect people of any particular gender disproportionately such that a gender-based
animus can reasonably be perceived. See also, e.g., Bishop v. United States ex rel.
Holder, 962 F. Supp. 2d 1252, 1286 (N.D. Okla. 2014); Jackson v. Abercrombie, 884
F. Supp. 2d 1065, 1098-99 (D. Haw. 2012) (listing cases); Richard Posner, Should
There Be Same-Sex Marriage? And If So, Who Should Decide?, 95 Mich. L. Rev.
1578, 1582 (1997) (There is no legal barrier to homosexuals marrying persons of
the opposite sex; in this respect there is already perfect formal equality between
homosexuals and heterosexuals.).
4

Accordingly, there is no parallel to Loving v. Virginia, 388 U.S. 1 (1967), in
this regard because race and sex are not constitutionally fungible concepts. See
Hernandez v. Robles, 805 N.Y.S.2d 354, 371 (N.Y. App. Div. 2005) (Catterson, J.,
concurring) (To elevate the issue of same sex unions to that of discrimination on
the basis of race does little service to the legacy of the civil rights movement, and
ignores the history of race relations in this country.). The racially discriminatory
classification in Loving was designed to maintain White Supremacy to the clear
favor of one racial class. See Loving, 388 U.S. at 11. A Loving analogy involving sex

4
Judge Posners observation is supported by the record in this case, which demonstrates
that Indianas traditional marriage laws permit all Hoosiers to marry, including Plaintiffs
Bonnie Everly, Linda Judkins, and Dawn Carver. See Doc. Nos. 36-3 at 6, 36-4 at 5,
and 36-6 at 6.

36
discrimination would, for example, ban only lesbians from marrying women, but not
gay men from marrying other men. That is plainly not the case here, where men
and women are equally affected by Indianas traditional marriage definition.
b. Traditional marriage does not discriminate based
on sexual orientation

Furthermore, traditional marriage laws in no way target homosexuals as
such. With traditional marriage, the distinction is not by its own terms drawn
according to sexual orientation. Homosexual persons may marry . . . but like
heterosexual persons, they may not marry members of the same sex. Sevcik, 911
F. Supp. 2d at 1004. The prior opposite-sex marriages of Plaintiffs Everly, Judkins,
and Carver are instructive in this regard. See Doc. Nos. 36-3 at 6, 36-4 at 5, and
36-6 at 6. They demonstrate that Indianas marriage laws do not negatively
impact all homosexuals, some of whom marry members of the opposite sex and
some of whom do not wish to marry at all. Nor do Indianas marriage laws
negatively affect only homosexuals, as Indiana law also burdens those interested in
other non-traditional marriages. If marriage law must be scrutinized for impact on
everyones ability to marry based on their sexual preferences, such a rule would
presumably set the stage for claims for plural marriages and marriages within
prohibited lines of consanguinity.
While traditional marriage laws impact heterosexuals and homosexuals
differently, they do not create classifications based on sexuality, particularly
considering the benign history of traditional marriage laws generally. See, e.g.,
Washington v. Davis, 426 U.S. 229, 242 (1976) (holding that disparate impact on a

37
suspect class is insufficient to justify strict scrutiny absent evidence of
discriminatory purpose). When a facially neutral statute is challenged on equal
protection grounds, the plaintiff must show that a state legislatur[e] . . . selected or
reaffirmed a particular course of action at least in part because of, not merely in
spite of, its adverse effects [on] an identifiable group. Pers. Admr of Mass. v.
Feeney, 442 U.S. 256, 279 (1979) (emphasis added) (internal quotation marks
omitted).
Here, deducing any such discriminatory intent (unaccompanied by any actual
statutory classification) is both unsupported and highly anachronistic, as Indiana
has never licensed or recognized same-sex marriages. Modern-day accusations of
homosexual animus quite plainly have no historical purchase. There is no
plausible argument that the traditional definition of marriage was invented as a
way to discriminate against homosexuals. Indeed, in Lawrence, the Supreme Court
examined only the past fifty years for the history of laws directed at homosexuals
because there is no longstanding history in this country of laws directed at
homosexual conduct as a distinct matter. Lawrence, 539 U.S. 558, 568 (2003).
Implicit in this statement is an acknowledgement that a traditional marriage
definition is not a law[] directed at homosexual conduct as a distinct matter.
Again, there is no appropriate comparison with Loving. Unlike traditional
marriage laws, antimiscegenation laws contravened common law and marriage
tradition in Western society. The entire phenomenon of banning interracial
marriages originated in the American colonies: [T]here was no ban on

38
miscegenation at common law or by statute in England at the time of the
establishment of the American Colonies. Harvey M. Applebaum, Miscegenation
Statutes: A Constitutional and Social Problem, 53 Geo. L.J. 49, 49-50 (1964).
Loving, in short, invalidated efforts to thwart the traditional parameters of
marriage (which took no account of race) based on racial animus. It involved
relationships that were plainly within the historical understanding and purposes of
marriage.
c. Homosexuals do not constitute a suspect class
Regardless, the Supreme Court has never held that homosexuality
constitutes a suspect class. And the law in this circuit, as well as most others, is
that homosexual persons do not constitute a suspect class. See Schroeder v.
Hamilton Sch. Dist., 282 F.3d 946, 953-54 (7th Cir. 2002) ([H]omosexuals are not
entitled to any heightened protection under the Constitution.); see also Cook v.
Gates, 528 F.3d 42, 61 (1st Cir. 2008); Veney v. Wyche, 293 F.3d 726, 731-32 (4th
Cir. 2002); Baker v. Wade, 769 F.2d 289, 292 (5th Cir. 1985) (en banc); Equal.
Found. of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289, 294 (6th Cir.
1997); Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 866-67 (8th Cir. 2006);
Price-Cornelison v. Brooks, 524 F.3d 1103, 1113-14 & n.9 (10th Cir. 2008); Lofton v.
Secy of the Dept of Children & Family Servs., 358 F.3d 804, 818 (11th Cir. 2004);
Steffan v. Perry, 41 F.3d 677, 684 n.3 (D.C. Cir. 1994) (en banc); Woodward v.
United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989). But see SmithKline Beecham
Corp. v. Abbott Labs., 740 F.3d 471, 481 (9th Cir. 2014) (applying heightened

39
scrutiny to juror challenges based on sexual orientation; subject to a sua sponte en
banc call).
Neither Windsor, nor Romer, nor Lawrence supports heightened scrutiny for
legislation governing marriage. Romer expressly applied rational basis scrutiny,
while Lawrence and Windsor implied the same. Romer v. Evans, 517 U.S. 620, 631-
32 (1996); Lawrence, 539 U.S. at 578; Windsor, 133 S. Ct. at 2696. In Windsor the
Court invalidated Section 3 of DOMA because no legitimate purposea hallmark
of rational basis reviewjustified the law. Id. at 2696.
Suspect class status is reserved for groups that are politically powerless in
the sense that they have no ability to attract the attention of the lawmakers. City
of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 445 (1985). Just this winter
Indianas lawmakers, having passed once already a resolution to enshrine the
traditional definition of marriage in the Indiana Constitution, and nearing a vote to
put the measure to statewide referendum in November 2014, effectively started the
process over and killed the measure for this year. Tony Cook & Barb Berggoetz,
Same-Sex Marriage Ban Wont be on November Ballot, The Indianapolis Star (Feb.
14, 2014), available at http://www.indystar.com/story/news/politics/2014/02/13/hjr-3-
last-minute-maneuver-could-spare-2nd-sentence-/5455299/.
This is far from the only political victory advocates for homosexual rights
have scored in recent years; it is only the most dramatic close to home. See Morgan
Little, Gay Marriage Movement Wins Significant Victories in 2013, LA Times (Dec.
9, 2013), available at http://www.latimes.com/nation/nationnow/la-pn-gay-marriage-

40
movement-gains-2013-20131206,0,1888807.story#axzz2zdVzLoIA (summarizing
legislative and judicial victories of 2013 and stating that the gay rights movement
as a whole is only becoming more popular nationwide, leading many to speculate
that its the fastest moving civil rights movement in U.S. history.)
National success persuading voters and lawmakers to provide for same-sex
marriagethe very issue over which plaintiffs claim protected statusconfirms the
sort of political clout that prevents recognition of homosexuals as a suspect class.
Cf. Frank Bruni, The New Gay Orthodoxy, N.Y. Times, Apr. 5, 2014, available at
http://www.nytimes.com/2014/04/06/opinion/sunday/bruni-the-new-gay-orthodoxy.
html (claiming that the debate is essentially over, in the sense that the trajectory
is immutable and the conclusion foregone[:] The legalization of same-sex marriage
from north to south and coast to coast is merely a matter of time, probably not much
of it at that). Even as far back as 1997 it was apparent that same-sex marriage
rights were sought not by the disenfranchised but by an educated, articulate, and
increasingly politically effective minority that is seeking to bypass the normal
political process . . . . Richard Posner, Should There Be Same-Sex Marriage? And
If So, Who Should Decide?, 95 Mich. L. Rev. 1578, 1584 (1997). Accordingly, the
label suspect class or even quasi-suspect class is a poor fit in this circumstance.
See Romer, 517 U.S. at 640 n.1 (Scalia, J., dissenting) (pointing out that the Court
implicitly rejected [plaintiffs] argument that homosexuals constitute a suspect or
quasi-suspect class).

41
2. Traditional marriage satisfies constitutional review

Because no fundamental rights or suspect classes are implicated, the proper
test under the federal due process and equal protection clauses is rational basis
review. Courts must examine the issue from the States perspective, not the
challengers perspective.
In particular, this means that the State may justify limits on government
benefits and burdens by reference to whether including additional groups would
accomplish the governments underlying objectives. Johnson v. Robison, 415 U.S.
361, 383 (1974) (When . . . the inclusion of one group promotes a legitimate
governmental purpose, and the addition of other groups would not, we cannot say
that the statutes classification of beneficiaries and nonbeneficiaries is invidiously
discriminatory.). This framework accords with the longstanding principle that
[t]he Constitution does not require things which are different in fact or opinion to
be treated in law as though they were the same, Tigner v. Texas, 310 U.S. 141, 147
(1940), and, therefore, where a group possesses distinguishing characteristics
relevant to interests the State has the authority to implement, a States decision to
act on the basis of those differences does not give rise to a constitutional violation.
Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 366-67 (2001) (internal
quotations and citation omitted).
Accordingly, the proper constitutional question has nothing to do with
justifications for excluding access to marriage and its benefitsan inquiry that
inherently presupposes the existence of a right to such access and thereby

42
amounts to a rejection of rational-basis review. Rather, the relevant question is
whether an opposite-sex definition of marriage furthers legitimate interests that
would not be furthered, or furthered to the same degree, by allowing same-sex
couples to marry. Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 1107 (D. Haw.
2012); Andersen v. King Cnty., 138 P.3d 963, 984 (Wash. 2006) (en banc); Morrison
v. Sadler, 821 N.E.2d 15, 23 (Ind. Ct. App. 2005); Standhardt v. Superior Court ex
rel. Cnty. of Maricopa, 77 P.3d 451, 463 (Ariz. Ct. App. 2003).
The State has no greater burden to justify its decision not to license,
recognize, or regulate same-sex marriages than it has to justify refusing to regulate
any group. It need only articulate reasons to confer benefits on opposite-sex couples
that do not apply to same-sex couples. The exclusive capacity and tendency of
heterosexual intercourse to produce children, and the States need to ensure that
those children are cared for, provide those reasons.
a. States recognize opposite-sex marriages to
encourage responsible procreation, and this
rationale does not apply to same-sex couples

Civil marriage recognition exists for important reasons having nothing to do
with same-sex couples. It arises from the need to protect the only procreative
sexual relationship that exists and to make it more likely that unintended children,
among the weakest members of society, will be cared for. See Morrison, 821 N.E.2d
at 15, 29 (marriage exists to encourage responsible procreation by opposite-sex
couples); id. at 25 (The institution of marriage not only encourages opposite-sex
couples to form a relatively stable environment for the natural procreation of

43
children in the first place, but it also encourages them to stay together and raise a
child or children together if there is a change in plans.). This analysis is dominant
in our legal system and should continue to carry the day.
5

Traditional marriage protects a norm where sexual activity that can beget
children should occur in a long-term, cohabitive relationship. See, e.g., Hernandez
v. Robles, 855 N.E.2d 1, 7 (N.Y. 2006) (The Legislature could rationally believe that
it is better, other things being equal, for children to grow up with both a mother and
a father.). It provides the opportunity for children born within it to have a
biological relationship to those having original legal responsibility for their well-
being, and accordingly is the institution that provides the greatest likelihood that
both biological parents will nurture and raise the children they beget.
Unlike opposite-sex couples, the sexual activity of same-sex couples implies
no unintentional pregnancies. Whether through surrogacy or reproductive
technology, same-sex couples can become biological parents only by deliberately
choosing to do so, requiring a serious investment of time, attention, and resources.
Id. at 24. Consequently, the State does not necessarily have the same need to

5
See Citizens for Equal Protection v. Bruning, 455 F.3d 859, 867 (8th Cir. 2006); Lofton v.
Secy of the Dept of Children and Family Servs., 358 F.3d 804, 818-19 (11th Cir. 2004);
Sevcik v. Sandoval, 911 F. Supp. 2d 996, 1015-16 (D. Nev. 2012); Jackson v. Abercrombie,
884 F. Supp. 2d 1065, 1112-13 (D. Haw. 2012); Smelt v. County of Orange, 374 F. Supp. 2d
861, 880 (C.D. Cal. 2005), affd in part, vacated in part, 477 F.3d 673 (9th Cir. 2006); Wilson
v. Ake, 354 F. Supp. 2d 1298, 1309 (M.D. Fla. 2005); In re Kandu, 315 B.R. 123, 147-48
(Bankr. W.D. Wash. 2004); Adams v. Howerton, 486 F. Supp. 1119, 1124 (C.D. Cal. 1980),
affd 673 F.2d 1036 (9th Cir. 1982); In re Marriage of J.B. & H.B., 326 S.W.3d 654, 677-78
(Tex. App. 2010); Conaway v. Deane, 932 A.2d 571, 619-21, 630-31 (Md. 2007); Hernandez v.
Robles, 855 N.E.2d 1, 7 (N.Y. 2006); Andersen v. King County, 138 P.3d 963, 982-83 (Wash.
2006) (en banc); Standhardt v. Superior Court, 77 P.3d 451, 463-65 (Ariz. Ct. App. 2003);
Dean v. District of Columbia, 653 A.2d 307, 337 (D.C. 1995); Singer v. Hara, 522 P.2d 1187,
1195 (Wash. Ct. App. 1974); Baker v. Nelson, 191 N.W.2d 185, 186 (Minn. 1971).

44
provide such parents with the incentives and regulatory restraints of marriage. Id.
at 25; see also In re Marriage of J.B. & H.B., 326 S.W.3d 654, 677 (Tex. Ct. App.
2010) (Because only relationships between opposite-sex couples can naturally
produce children, it is reasonable for the state to afford unique legal recognition to
that particular social unit in the form of opposite-sex marriage.).
The fact that non-procreating opposite-sex couples may marry does not
undermine marriage as the optimal procreative context. Opposite-sex couples
without children who are married model the optimal, socially expected behavior for
other opposite-sex couples whose sexual intercourse may well produce children. See
Morrison, 821 N.E.2d at 27 (There was a rational basis for the legislature to draw
the line between opposite-sex couples, who as a generic group are biologically
capable of reproducing, and same-sex couples, who are not. This is true, regardless
of whether there are some opposite-sex couples that wish to marry but one or both
partners are physically incapable of reproducing.); see also Singer v. Hara, 522
P.2d 1187, 1195 (Wash. Ct. App. 1974) (confirming marriage as a protected legal
institution primarily because of societal values associated with the propagation of
the human race[] even though married couples are not required to become parents
and even though some couples are incapable of becoming parents and even though
not all couples who produce children are married).
Moreover, inquiring of every applicant for a marriage license whether they
can or intend to procreate would impose serious, constitutionally questionable
intrusions on individual privacy. The State is not required to go to such extremes

45
simply to prove that the regulatory purpose of marriage is to promote procreation
and child rearing in the traditional family context. It suffices to observe that only
members of the opposite sex have even a chance at procreating together, so it is fair
to limit marriage regulation to opposite-sex unions as an initial matter, regardless
whether there are further regulations of marriage.
The State may prefer childrearing by biological parents, whom our society . .
. [has] always presumed to be the preferred and primary custodians of their minor
children. Reno v. Flores, 507 U.S. 292, 310 (1993). But that does not mean it must
foreclose all other parenting scenarios by outlawing adoptions or otherwise
preventing parents from raising children to whom they are not biologically related.
The States interest in ensuring that children are properly cared for may take many
forms, the fundamental one being traditional marriage regulation. And the mere
ability of same-sex couples to become parents does not put such couples on the same
footing as opposite-sex couples, whose general ability to procreate, especially
unintentionally, legitimately gives rise to state policies encouraging the legal union
of such sexual partners. Morrison, 821 N.E.2d at 25 ([T]he legislative classification
of extending marriage benefits to opposite-sex couples but not same-sex couples is
reasonably related to a clearly identifiable, inherent characteristic that
distinguishes the two classes: the ability or inability to procreate by natural
means.).
Parental rights are an important aspect of traditional marriage, but it does
not follow that marriage rights go wherever parental rights lead. The purpose of

46
traditional marriage as a regulatory scheme is not to encourage just any two people
who could be good parents to assume parental responsibility for children. It is
instead to encourage the two biological parents to care for their children in tandem.
Neither same-sex couples nor any other inherently non-procreative grouping of
individuals fits that bill.
b. Many courts have rejected the theory that
traditional marriage is about homosexual animus

Plaintiffs have posited that traditional marriage regulation is somehow about
harming homosexuals and promoting gender stereotypes. Doc. No. 36 at 12, 15-16.
They complain about the stigma that States create when they regulate opposite-
sex marriages but not same-sex marriages. Id. at 23-24. But as Justice OConnor
wrote in her concurrence in Lawrence, legitimate state interests, such as
preserving the traditional institution of marriage, exist to promote the institution
of marriage beyond mere moral disapproval of an excluded group. Lawrence v.
Texas, 539 U.S. 558, 585 (2003) (OConnor, J., concurring).
Traditional marriage regulation is not about sending a message, App. 14,
concerning homosexuality or sexual roles. It is about biology, about regulating
sexual relationships that create children that must be cared for. The plurality in
Hernandez, 855 N.E.2d at 8, observed that [u]ntil a few decades ago, it was an
accepted truth for almost everyone who ever lived, in any society in which marriage
existed, that there could be marriages only between participants of different sex. A
court should not lightly conclude that everyone who held this belief was irrational,
ignorant or bigoted. Id. See also Standhardt, 77 P.3d at 465 (Arizonas

47
prohibition of same-sex marriages furthers a proper legislative end and was not
enacted simply to make same-sex couples unequal to everyone else.); In re
Marriage of J.B. & H.B., 326 S.W.3d at 680 (rejecting argument that Texas laws
limiting marriage and divorce to opposite-sex couples are explicable only by class-
based animus). Indeed, all courts upholding traditional marriage definitions at
least tacitly reject the theory that homosexual animus is at work.
3. No other limiting principle for marriage is apparent

Neither Plaintiffs nor judicial decisions invalidating traditional marriage
definitions have offered meaningful alternative rationales or definitions. At the
hearing on the motions for preliminary injunction and summary judgment, the
district court directly asked counsel for Plaintiffs what alternative theory of
marriage she would propose. The response was telling. Rather than offer a reason
why the government would recognize and regulate marriage if not for the sake of
encouraging biological parents to remain together for children produced of their
sexual union, counsel stated as follows: [W]hile all of us who are married might put
it slightly differently, we might have different examples to use to show what
marriage means to us and why it is so important to us, I think that theres
something timeless and universal about our experience in choosing to marry that
one unique and irreplaceable person who completes us. App. 90. In other words,
counsel offered reasons why individuals personally enter into marriages, but no
reason why the State licenses, recognizes, and regulates sexual relationships as
marriages.

48
Courts have done no better. The court in Bostic v. Rainey, 970 F. Supp. 2d
456 (E.D. Va. 2014), for example, declared that any public commitment to form an
exclusive relationship and create a family with a partner with whom the person
shares an intimate and sustaining emotional bond is entitled to marriage
recognition. Id. at 472. This proposal for redefinition, however, in no way explains
why government has any interest in recognizing marriage or in regulating sexual
relationships. The district court in Bostic spoke of an intimate and sustaining
emotional bond, but never said why that matters to the State. Such an omission is
glaring and significant. If the desire for social recognition and validation of self-
defined intimate relationships are the bases for civil marriage, no adult
relationships can be excluded a priori from making claims upon the government for
recognition and, oddly, regulation.
A central argument for recognizing same-sex marriages arises from a
fashionable insistence that the modern family is not what it used to be. Indeed,
there seems to be no end to the variety of de facto family permutations that can
arise. By virtue of statutory amendment and judicial fiat, some States bestow
parental rights and responsibilities even on entire groups of co-parents. In recent
years, Delaware and the District of Columbia have passed laws that recognize third
de facto parents who have parental rights and responsibilities. D.C. Code 16-
831.01 et seq.; 13 Del. Code 8-201. Courts in several other States have also
recognized three parents. See In re Parentage of L.B., 122 P.3d 161, 176-77 (Wash.
2005) (en banc) (recognizing third de facto parent); C.E.W. v. D.E.W., 845 A.2d

49
1146 (Me. 2004) (same); V.C. v. M.J.B., 748 A.2d 539 (N.J. 2000) (recognizing third
psychological parent); LaChappelle v. Mitten, 607 N.W.2d 151 (Minn. Ct. App.
2000) (recognizing third-parent rights); see also In re M.C., 195 Cal. App. 4th 197,
214, 223 (2011).
But none of these social changeswhether one views them as good, bad, or
inconsequentialjustifies regulation of same-sex couples as marriages. Surely no
one argues that the liberty of adults to engage freely in consensual sex means
States must also acknowledge and regulate each individuals sexuality; indeed,
Lawrence v. Texas, 539 U.S. 558, 578 (2003), holds to the contrary. Nor, then, does
the governments interest in the sexuality of its citizens suddenly spring forth at the
origination of particular romantic or cohabitational relationships as such. There
has to be something more to justify government regulation. See Willystine Goodsell,
A History of the Family as a Social and Educational Institution 7 (The Macmillan
Company 1915) (It seems clear enough that the sexual instinct of itself could not
have brought about permanent relationships between male and female.).
For qualified opposite-sex couples, the something more that justifies
regulation as marriage is the natural capacity of their sexual relationships to
produce children unintentionally. This natural capacity gives rise to the states
interest in encouraging responsible procreation, i.e., where the sexual partners live
in a long-term, committed relationship for the sake of any children they may
produce, even unintentionally. See id. at 7-8 (The source of marriage . . . must
probably be looked for in the utter helplessness of the newborn offspring . . . .).

50
The ability of same-sex couples to raise children together is not the same
thing. The primary rationale for traditional marriage regulation is responsible
procreation, not responsible parenting more generally. Hence, what is missing with
same-sex couples is societys interest in encouraging couples to consider and plan for
the children that inevitably result from impulsive decisions to act on sexual desires.
The sexual activity of same-sex couples implies no consequences similar to that of
opposite-sex couples that demand a regulatory response.
It is no response for same-sex couples to say that the State also has an
interest in encouraging those who acquire parental rights without procreating
(together) to maintain long-term, committed relationships for the sake of their
children. Such an interest is not the same as the interest that justifies marriage as
a special regulation for sexual partners as such. Traditional marriage reflects the
ideal of family life, recognizing the love between a mother and a father and the
ability of this relationship to bear children. The same is true for opposite-sex
couples that do not procreate because they model the optimal ordering of family life.
Responsible parenting is not a theory supporting marriage for same-sex couples
because it cannot answer two critical questions: Why two people? Why a sexual
relationship?
In other words, if marriage rights must follow parental rights, and if States
cannot restrict joint parental rights to opposite-sex couples as an optimal setting for
childrearing, there would be no basis for precluding joint parentageand, hence,
marriageby any social grouping, regardless of the existence of a sexual

51
relationship. Sisters, brothers, platonic friends, groups of three or moreall would
be on equal footing for purposes of the right to parent jointly and, thus, the right to
marry.
6

Consequently, responsible parenting is not a justification for same-sex-couple
marriage, as distinguished from regulation of any other human relationships. It is
instead a rationale for eliminating marriage as government recognition of a limited
set of relationships. Once the natural limits that inhere in the relationship between
a man and a woman can no longer sustain the definition of marriage, the conclusion
that follows is that any grouping of adults would have an equal claim to marriage.
See, e.g., Jonathan Turley, One Big, Happy Polygamous Family, NY Times, July 21,
2011, at A27 ([Polygamists] want to be allowed to create a loving family according
to the values of their faith.).
Marriage is not a device traditionally used to acknowledge acceptable
sexuality, living arrangements, or parenting structures. It is a regulatory means to
encourage and preserve something far more compelling and precise: the
relationship between a man and a woman in their natural capacity to have children.
Marriage attracts and then regulates couples whose sexual conduct may create
children in order to ameliorate the burdens society ultimately bears when

6
In this regard it is important to bear in mind that, under this model, it is only the
potential for a group of adults to acquire parental rightsnot the actual conferral of
parental rights on any particular groupingthat would be the necessary predicate for
marriage. In other words, taken to its logical conclusion, Plaintiffs argument for marriage
equality would insist that, just as opposite-sex couples are eligible for marriage by
reference to their theoretical procreative capacity, so too would other groups be eligible for
marriage by reference to their theoretical ability to acquire joint parental rights, regardless
whether they actually (or even intend) to do so.


52
unintended children are not properly cared for. Neither same-sex couples nor any
other social grouping presents the same need for government involvement, so there
is no similar rationale for recognizing and regulating them.
CONCLUSION
For the foregoing reasons, the Preliminary Injunction should be REVERSED
and VACATED.

s/ Robert V. Clutter
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
Counsel for Penny Bogan

s/ Darren J. Murphy
Darren J. Murphy
694 Logan St.
Noblesville, IN 46060
Tel: (317) 773-4212
Fax: (317) 776-2369
dmurphy@ori.net
Counsel for Peggy Beaver
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
Indianapolis, IN 46204
Tel: (317) 232-6255
Fax: (317) 232-7979
Counsel for Greg Zoeller and William C.
VanNess II, M.D.

s/ Nancy Moore Tiller
Nancy Moore Tiller
11035 Broadway, Suite A
Crown Point, IN 46307
Tel: (219) 662-2300
Fax: (219) 662-8739
nmt@tillerlegal.com
Counsel for Michael A. Brown


53

CERTIFICATE OF WORD COUNT

I verify that this brief, including footnotes and issues presented, but
excluding certificates, contains 13,454 words according to the word-count function of
Microsoft Word, the word-processing program used to prepare this brief.

s/ Thomas M. Fisher
Thomas M. Fisher
Solicitor General

54
CERTIFICATE OF SERVICE

I hereby certify that on June 20, 2014, I electronically filed the foregoing with
the Clerk of the Court for the United States Court of Appeals for the Seventh
Circuit by 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.

Darren J. Murphy
dmurphy@ori.net

Jordan Heinz
Brent Phillip Ray
Kirkland & Ellis LLP
jordan.heinz@kirkland.com
brent.ray@kirkland.com

Nancy Moore Tiller
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 Indiana Attorney General
Indiana Government Center South, Fifth Floor
Indianapolis, IN 46204-2770
Telephone: (317) 232-6255
Facsimile: (317) 232-7979

55
REQUIRED SHORT APPENDIX

Pursuant to Circuit Rule 30, Appellants submit the following as their
Required Short Appendix. Appellants Short Appendix contains all of the materials
required under Circuit Rule 30(a).

By: s/ Thomas M. Fisher
Thomas M. Fisher
Solicitor General

1

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

MARILYN RAE BASKIN and ESTHER
FULLER; BONNIE EVERLY and LINDA
JUDKINS; DAWN LYNN CARVER and
PAMELA RUTH ELEASE EANES;
HENRY GREENE and GLENN
FUNKHOUSER, individually and as
parents and next friends of C.A.G.;
NIKOLE QUASNEY, and AMY
SANDLER, individually and as parents and
next friends of A.Q.-S. and M.Q.-S.,

Plaintiffs,

vs.

PENNY BOGAN, in her official capacity
as BOONE COUNTY CLERK; KAREN
M. MARTIN, in her official capacity as
PORTER COUNTY CLERK; MICHAEL
A. BROWN, in his official capacity as
LAKE COUNTY CLERK; PEGGY
BEAVER, in her official capacity as
HAMILTON COUNTY CLERK;
WILLIAM C. VANNESS II, M.D., in his
official capacity as the COMMISSIONER,
INDIANA STATE DEPARTMENT OF
HEALTH; and GREG ZOELLER, in his
official capacity as INDIANA
ATTORNEY GENERAL,

Defendants.

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1:14-cv-00355-RLY-TAB

ENTRY ON PLAINTIFFS MOTION FOR A PRELIMINARY INJUNCTION
Case 1:14-cv-00355-RLY-TAB Document 65 Filed 05/08/14 Page 1 of 14 PageID #: 713
SHORT APPENDIX 1
2

Plaintiffs, Amy Sandler (Amy), Nikole (Niki) Quasney, A.Q.-S. and M.Q.-S
asked this court to grant them a temporary restraining order (TRO) and a preliminary
injunction requiring the State of Indiana to recognize the out-of-state marriage of Amy
and Niki. (Filing No. 31). The court granted the TRO, which expires on May 8, 2014.
(Filing No. 44; Filing No. 51). On May 2, 2014, the court held a hearing on the pending
motions for summary judgment and preliminary injunction. For the reasons set forth
below, the court GRANTS Plaintiffs motion for a preliminary injunction.
I. Background
Niki and Amy have been in a loving and committed relationship for more than
thirteen years. (Declaration of Nikole Quasney (Quasney Dec.) 2, Filing No. 32-2).
They are the parents to two very young children, Plaintiffs, A.Q.-S. and M.Q.-S. (Id. at
2). On June 7, 2011, Amy and Niki entered into a civil union in Illinois, and on August
29, 2013, they were legally married in Massachusetts. (Id. at 3).
In late May of 2009, Niki was diagnosed with Stage IV Ovarian cancer, which has
a probable survival rate of five years. (Id. at 9). Since June 2009, Niki has endured
several rounds of chemotherapy; yet, her cancer has progressed to the point where
chemotherapy is no longer a viable option. Niki is receiving no further treatment; her
death is imminent.
Niki and Amy joined the other Plaintiffs to this lawsuit to present a facial
challenge to Indiana Code 31-11-1-1, titled Same sex marriages prohibited and states:
(a) Only a female may marry a male. Only a male may marry a female.
(b) A marriage between persons of the same gender is void in Indiana even
if the marriage is lawful in the place where it is solemnized.
SHORT APPENDIX 2
3

Because Niki is fighting a fatal disease and is nearing the five year survival rate, she and
Amy requested that the court issue a preliminary injunction preventing Indiana from
enforcing Indiana Code 31-11-1-1(b) as applied to them, and requiring the State of
Indiana, through the Defendants, to recognize Niki as married to Amy on her death
certificate.
II. Preliminary Injunction Standard
A preliminary injunction is an exercise of a very far-reaching power, never to be
indulged in except in a case clearly demanding it. Girl Scouts of Manitou Council, Inc.
v. Girl Scouts of U.S.A., Inc., 549 F.3d 1079, 1085-86 (7th Cir. 2008) (citations omitted).
The court analyzes a motion for a preliminary injunction in two distinct phases: a
threshold phase and a balancing phase. Id. Under the threshold phase for preliminary
injunctive relief, a plaintiff must establish and has the ultimate burden of proving by a
preponderance of the evidence each of the following elements: (1) some likelihood of
success on the merits, (2) absent a preliminary injunction, she will suffer irreparable
harm, and (3) traditional legal remedies would be inadequate. Id. at 1806. To satisfy the
first requirement, a plaintiffs chance of success must be more than negligible. See
Brunswick Corp. v. Jones, 784 F.2d 271, 275 (7th Cir. 1986).
If the court determines that the moving party has failed to demonstrate any one of
these [] threshold requirements, it must deny the injunction. Girl Scouts of Manitou
Council, Inc., 549 F.3d at 1086 (citation omitted). If, on the other hand, the court
determines the moving party has satisfied the threshold phase, the court then proceeds to
the balancing phase of the analysis. Id. The balancing phase requires the court to
SHORT APPENDIX 3
4

balance the harm to the moving party if the injunction is denied against the harm to the
nonmoving party if the injunction is granted. Id. In so doing, the court utilizes what is
known as the sliding scale approach; the more likely the [movant] will succeed on the
merits, the less the balance of irreparable harms need favor the [movants] position. Id.
Additionally, this stage requires the court to consider any effects that granting or
denying the preliminary injunction would have on nonparties (something courts have
termed the public interest). Id.
III. Discussion
Before reaching the merits, Defendants pose two challenges that the court must
initially address. First, they argue the Plaintiffs, Niki and Amy, lack standing to assert
preliminary injunctive relief. Second, in light of the Supreme Courts recent decision in
Herbert v. Kitchen, 134 S.Ct. 893 (2013), they argue preliminary injunctive relief is
inappropriate.
A. Standing
To have standing a plaintiff must present an injury that is concrete, particularized,
and actual or imminent, fairly traceable to the defendants challenged behavior, and likely
to be redressed by a favorable ruling. Davis v. Fed. Election Commn, 554 U.S. 724,
733 (2008). Defendants argue that the harms alleged by Plaintiffs as arising from
Indianas non-recognition statute are not concrete and particularized, nor fairly traceable
to them. Thus, according to Defendants, a preliminary injunction cannot favorably
address Plaintiffs harms.
SHORT APPENDIX 4
5

The Defendants in this case, the Attorney General; the County Clerks from Boone,
Porter, Lake, and Hamilton Counties; and the Commissioner of the Indiana Department
of Health, are statutorily required to enforce Indiana Code 31-11-1-1 by not
recognizing the marriage. See Ind. Code 4-6-1-6; see also Ind. Code 31-11-4-2; see
also Ind. Code 16-37-1-3 and Ind. Code 16-37-1-3.1. The injury to Plaintiffs
resulting from Indianas non-recognition statute harms the Plaintiffs in numerous tangible
and intangible ways, including causing Niki to drive to Illinois where her marriage will
be recognized in order to receive medical care and the dignity of marital status. Thus, a
preliminary injunction enjoining Defendants from enforcing the non-recognition statute
against Plaintiffs will, therefore, redress their claimed injury. Therefore, the court finds
that the Plaintiffs have standing to seek a preliminary injunction.
B. Is preliminary injunctive relief appropriate?
Citing Herbert v. Kitchen, Defendants contend that Plaintiffs demands for
preliminary relief are inappropriate under Federal Rule of Civil Procedure 65. Herbert v.
Kitchen, 134 S.Ct. 893 (Jan. 6, 2013). In that case, the Supreme Court issued a stay of
the District of Utahs permanent injunction requiring officials to issue marriage licenses
to same-sex couples and to recognize all same-sex marriages performed in other states.
Since that ruling, all decisions by federal district courts have been stayed while the
requisite preliminary and permanent injunctions are appealed to the respective circuit
courts.
Nevertheless, the court does not interpret the fact that the other federal courts are
staying injunctions to mean that preliminary injunctive relief is inappropriate in this case.
SHORT APPENDIX 5
6

Nor does the court 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. Additionally, despite these stays, no court has found that
preliminary injunctive relief is inappropriate simply because a stay may be issued.
Therefore, the court finds that preliminary injunctive relief is still appropriate in this
matter and proceeds to that analysis.
C. Is there a likelihood of success on the merits?
Plaintiffs argue that Indianas statute prohibiting the recognition of same-sex
marriages and in fact, voiding such marriages, violates the Fourteenth Amendments Due
Process Clause and Equal Protection Clause.
1. Equal Protection Clause
Plaintiffs argue that Indianas non-recognition statute, codified at Indiana Code
31-11-1-1(b), which provides that their state-sanctioned out-of-state marriage will not be
recognized in Indiana and is indeed, void in Indiana, deprives them of equal protection.
The Equal Protection Clause commands that no state shall deny to any person within its
jurisdiction the equal protection of the laws. U.S. CONST. amend. XIV, 1.
The theory underlying Plaintiffs claim is the notion that Indiana denies same-sex
couples the same equal rights, responsibilities and benefits that heterosexual couples
receive through traditional marriage. According to Defendants, the States interest in
traditional marriage is to encourage heterosexual couples to stay together for the sake of
any unintended children that their sexual relationship may produce, and to raise those
children in a household with both male and female role models. The State views
SHORT APPENDIX 6
7

heterosexual couples who, for whatever reason, are not capable of producing children, to
further the states interest in being good male-female role models.
In the wake of the Supreme Courts decision in United States v. Windsor, 134
S.Ct. 2675 (2013), district courts from around the country have rejected the idea that a
states non-recognition statute bears a rational relation to the states interest in traditional
marriage as a means to foster responsible procreation and rear those children in a stable
male-female household. See Tanco, 2014 WL 997525 at * 6; see also Bishop v. U.S. ex
rel. Holder, 962 F. Supp. 2d 1252 (N.D. Okla. 2014) (finding there is no rational link
between excluding same-sex marriages and steering naturally procreative
relationships into marriage, in order to reduce the number of children born out of
wedlock and reduce economic burdens on the State); see also DeBoer v. Snyder, No.1:12-
cv-10285, 2014 WL 1100794, * 2 (E.D. Mich. Mar. 21, 2014) (noting that prohibiting
same-sex marriages does not stop [gay men and lesbian women] from forming families
and raising children). Indeed, as the court found in its prior Entry, with the wave of
persuasive cases supporting Plaintiffs position, there is a reasonable likelihood that the
Plaintiffs will prevail on the merits, even under the highly-deferential rational basis
standard of review. See Henry, 2014 WL 1418395 at ** 1-2 (noting that since the
Supreme Courts ruling in Windsor, all federal district courts have declared
unconstitutional and enjoined similar bans); see also Tanco, 2014 WL 997525 at * 6 (in
light of the rising tide of persuasive post-Windsor federal case law, it is no leap to
conclude that the plaintiffs here are likely to succeed in their challenge.) The reasons
SHORT APPENDIX 7
8

advanced by the State in support of Indianas non-recognition statute do not distinguish
this case from the district court cases cited above.
The court is not persuaded that, at this stage, Indianas anti-recognition law will
suffer a different fate than those around the country. Thus, the Plaintiffs have shown that
they have a reasonable likelihood of success on the merits of their equal protection
challenge, even under a rational basis standard of review. Therefore, the court at this
stage does not need to determine whether sexual orientation discrimination merits a
higher standard of constitutional review.
2. Due Process Clause
Plaintiffs assert that they have a due process right to not be deprived of ones
already-existing legal marriage and its attendant benefits and protections. See Obergefell
v. Wymyslo, 962 F. Supp. 2d 968, 978 (S.D. Ohio 2013) (finding that non-recognition
invokes the right not to be deprived of ones already-existing legal marriage and its
attendant benefits and protections.); see also Henry v. Himes, No. 1:14-cv-129, 2014
WL 1418395, * 9 (S.D. Ohio Apr. 14, 2014) (applying intermediate scrutiny where Ohio
is intruding into and in fact erasing the marriage relationship); see also De Leon v.
Perry, No. SA-13-CA-00982-OLG, 2014 WL 715741, ** 21-24 (W.D. Tex Feb. 26,
2014) (applying rational basis review and finding that by declaring lawful same-sex
marriages void and denying married couples the rights, responsibilities, and benefits of
marriage, Texas denies same-sex couples who have been married in other states their due
process).
SHORT APPENDIX 8
9

Defendants counter that there is no due process right to have ones marriage
recognized. According to Defendants, recognition of marriages from other states is only
a matter of comity, not a matter of right. See e.g., Sclamberg v. Sclamberg, 41 N.E.2d
801 (Ind. 1942) (recognizing parties concession that their marriage, performed in Russia,
was void under Indiana law because they were uncle and niece). Defendants again stress
that Windsor is a case merely about federalism and did not create a right under the Due
Process Clause to have ones marriage recognized.
The court found in its prior ruling that as a general rule, Indiana recognizes those
marriages performed out of state. Bolkovac v. State, 98 N.E.2d 250, 304 (Ind. 1951)
([t]he validity of a marriage depends upon the law of the place where it occurs.). This
includes recognizing marriages between first cousins despite the fact that they cannot
marry in Indiana. See Mason v. Mason, 775 N.E.2d 706, 709 (Ind. Ct. App. 2002).
Indianas non-recognition of Plaintiffs marriage is a departure from the traditional rule in
Indiana. Furthermore, the court notes that by declaring these marraiges void, the State of
Indiana may be depriving Plaintiffs of their liberty without due process of law. See e.g.
Loving v. Virginia, 388 U.S. 1, 12 (1967) (to deny this fundamental freedom on so
unsupportable a basis as the racial classification embodied in these statutes, . . . is surely
to deprive all of the States citizens of liberty without due process of law.) Therefore,
the court finds that Plaintiffs have shown some likelihood of success on this claim.
D. Are any injuries to Plaintiffs irreparable?
Irreparable harm is harm which cannot be repaired, retrieved, put down again,
atoned for . . . . [T]he injury must be of a particular nature, so that compensation in
SHORT APPENDIX 9
10

money cannot atone for it. Graham v. Med. Mut. of Ohio, 130 F.3d 293, 296 (7th Cir.
1997) (internal quotation and citation omitted). Defendants first argue that there is not
irreparable harm here, because Plaintiffs have endured these injuries for a substantial
period of time. See Celebration Intl, Inc. v. Chosum Intl, Inc., 234 F. Supp. 2d 905, 920
(S.D. Ind. 2002) (Though not dispositive, tardiness weighs against a plaintiffs claim of
irreparable harm . . . .). The court does not find that the requested relief is tardy for two
reasons: (1) there has been a recent, substantial change in the law, and (2) in June 2014,
Niki will have reached the average survival rate for her disease.
Defendants challenge the Plaintiffs claim and this courts prior finding that the
constitutional injury alleged herein is sufficient evidence of irreparable harm. In support,
Defendants rely on cases decided in other circuits. These cases are not binding on this
court, but merely persuasive. After a more thorough review of the cases in the Seventh
Circuit, the court reaffirms its conclusion that a constitutional violation, like the one
alleged here, is indeed irreparable harm for purposes of preliminary injunctive relief. See
Preston v. Thompson, 589 F.2d 300, 303 n. 3 (7th Cir. 1978) ([t]he existence of a
continuing constitutional violation constitutes proof of an irreparable harm.); see Does v.
City of Indianapolis, No. 1:06-cv-865-RLY-WTL, 2006 WL 2927598, *11 (S.D. Ind.
Oct. 5, 2006) (quoting Cohen v. Coahoma Cnty., Miss., 805 F. Supp. 398, 406 (N.D.
Miss. 1992) for the proposition that [i]t has been repeatedly recognized by federal courts
at all levels that violation of constitutional rights constitutes irreparable harm as a matter
of law.); see also Back v. Carter, 933 F. Supp. 738, 754 (N.D. Ind. 1996) (When
violations of constitutional rights are alleged, further showing of irreparable injury may
SHORT APPENDIX 10
11

not be required if what is at stake is not monetary damages. This rule is based on the
belief that equal protection rights are so fundamental to our society that any violation of
those rights causes irreparable harm.); see also Ezell v. City of Chicago, 651 F.3d 684
(7th Cir. 2011) (finding irreparable harm when Plaintiffs Second Amendment rights
were likely violated); see also Hodgkins v. Peterson, No. 1:04-cv-569-JDT-TAB, 2004
WL 1854194, * 5 (S.D. Ind. Jul. 23, 2004) (granting a preliminary injunction enjoining
enforcement of Indianapolis curfew law as it likely violated the parents due process
rights and finding that when an alleged deprivation of a constitutional right is involved,
most courts hold that no further showing of irreparable injury is necessary.)
Even if a further showing of irreparable harm is required, the court finds that
Plaintiffs have met this burden. Niki suffers irreparable harm as she drives to Illinois to
receive treatment at a hospital where her marriage will be recognized. In addition, Niki
may pass away without enjoying the dignity that official marriage status confers. See
Obergefell v. Kasich, No. 1:13-cv-501, 2013 WL 3814262, * 7 (S.D. Ohio Jul. 22, 2013)
(Dying with an incorrect death certificate that prohibits Mr. Arthur from being buried
with dignity constitutes irreparable harm. Furthermore, Mr. Arthurs harm is irreparable
because his injury is present now, while he is alive. A later decision allowing an
amendment to the death certificate cannot remediate the harm to Mr. Arthur, as he will
have passed away.); see also Gray v. Orr, (N.D. Ill. Dec. 5, 2013) (Equally, if not
more, compelling is Plaintiffs argument that without temporary relief, they will also be
deprived of enjoying less tangible but nonetheless significant personal and emotional
benefits that the dignity of official marriage status confers.). These are concrete,
SHORT APPENDIX 11
12

tangible injuries that are fairly traceable to Defendants and can be remedied by a
preliminary injunction.
E. Balance of Harms and Public Interest
Having satisfied the threshold phase of a preliminary injunction, the court now
turns to the balancing phase. Plaintiffs assert that Defendants have not suffered and will
not suffer irreparable harm from this preliminary injunction, and that the public interest is
served by a preliminary injunction because there is no interest in upholding
unconstitutional laws. Defendants counter that while they can point to no specific
instances of harm or confusion since the court granted the TRO three weeks ago, the
State is harmed in the abstract by not being able to enforce this law uniformly and against
Plaintiffs. Defendants argue that the public interest weighs in their favor because (1) the
State has a compelling interest in defining marriage and administering its own marriage
laws, and (2) the continuity of Indianas marriage laws avoids potential confusion over a
series of injunctions.
As the court has recognized before, marriage and domestic relations are
traditionally left to the states; however, the restrictions put in place by the state must
comply with the United States Constitutions guarantees of equal protection of the laws
and due process. See Windsor, 133 S.Ct. at 2691 (citing Loving v. Virginia, 388 U.S. 1
(1967)). The State does not have a valid interest in upholding and applying a law that
violates these constitutional guarantees. See Joeiner v. Vill. Of Washington Park, 378
F.3d 613, 620 (7th Cir. 2004). Although the court recognizes the States concern that
injunctions of this sort will cause confusion with the administration of Indianas marriage
SHORT APPENDIX 12
13

laws and to the public in general, that concern does not apply here.
1
The court is faced
with one injunction affecting one couple in a State with a population of over 6.5 million
people. This will not disrupt the public understanding of Indianas marriage laws.
IV. Conclusion
The court finds that the Plaintiffs, Amy, Niki, A.Q-S., and M.Q.-S., have satisfied
their burden for a preliminary injunction. They have shown a reasonable likelihood of
success on the merits, irreparable harm with no adequate remedy at law, that the public
interest is in favor of the relief, and the balance of harm weighs in their favor. Therefore,
the court GRANTS Plaintiffs motion for a preliminary injunction (Filing No. 31).
Defendants and all those acting in concert are 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.
In addition, should Niki pass away in Indiana, the court orders William 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. This order
shall require that Defendant VanNess issue directives to local health departments, funeral

1
This argument had more strength when all of the Plaintiffs in the present lawsuit were seeking
preliminary injunctive relief, because they (as opposed to Niki and Amy) were never married,
and challenged the constitutionality of Indianas traditional marriage law. The motion for
preliminary injunctive relief from the unmarried Plaintiffs (Filing No. 35) is WITHDRAWN;
therefore, the court does not see the potential of creating great confusion from the courts grant
of the present motion which affects only one couple. Should this injunction be reversed or a
permanent injunction not issued at a later time, only the parties to this case may suffer from
confusion. The court has faith that their respective attorneys can explain any decisions and
effects from those decisions to them.
SHORT APPENDIX 13
14

homes, physicians, coroners, medical examiners, and others who may assist with the
completion of said death certificate explaining their duties under the order of this court.
This preliminary injunction will remain in force until the court renders judgment on the
merits of the Plaintiffs claims.
In conclusion, the court recognizes that the issues with which it is confronted are
highly contentious and provoke strong emotions both in favor and against same-sex
marriages. The courts ruling today is not a final resolution of the merits of the case it
is a preliminary look, or in other words, a best guess by the court as to what the outcome
will be. Currently, all federal district court cases decided post-Windsor indicate that
Plaintiffs are likely to prevail. Nevertheless, the strength or weakness of Plaintiffs case
at the time of final dissolution will inevitably be impacted as more courts are presented
with this issue.

SO ORDERED this 8th day of May 2014.

s/ Richard L.Young________________
RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
Southern District of Indiana

Distributed Electronically to Registered Counsel of Record.

SHORT APPENDIX 14
__________________________________
RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
Southern District of Indiana

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