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Monday, July 28, 2014

Ind. Decisions - The fate of the original Indiana same-sex marriage lawsuit, Love v. Pence

In mid-March, five separate cases (see list in this post) were filed in federal court challenging various aspects of Indiana's prohibition against same-sex marriage. The first case filed was Love v. Pence, it was filed in the SD Ind., New Albany District where Chief Judge Richard L. Young presides, amid much publicity, by a private firm located in Kentucky. Four more cases were filed within a week and subsequently all five cases were consolidated under Judge Young.

Judge Young issued his ruling on June 25th in the Baskin, Fujii and Lee lawsuits - these are the cases that have been consolidated and are now pending before the 7th Circuit. On page 10 of J. Young's ruling, the court states that Gov. Pence was not a party to the lawsuits:

Governor Pence is sued in the Fujii and Lee cases. As the court found in Love v. Pence, another case challenging the constitutionality of Section 31-11-1-1, the Governor is not a proper party because the Plaintiffs’ injuries are not fairly traceable to him and cannot be redressed by him. (Love v. Pence, No. 4:14-cv-15-RLY-TAB, Filing No. 32 (S.D. Ind. June 24, 2014). Therefore, the court GRANTS the Governor’s motions for summary judgment (Fujii Filing No. 44) (Lee Filing No. 41).
At the end of the opinion, the court states again:
This Order does not apply to Governor Pence, who the court found was not a proper party.
On July 22nd the plaintiffs in Pence v. Love filed a motion for reconsideration of the order of dismissal with the federal district court, and a 7-page supporting memo. The memo states that plaintiffs named Gov. Pence as the sole defendant in their lawsuit, and that on June 25th the court dismissed the lawsuit:
...on the grounds that he was not a proper defendant because he, as the Governor of Indiana, has no authority to enforce IC § 31-11-1-1. * * *

Also on June 25, 2014, this Court struck down IC § 31-11-1-1 in a consolidated entry on cross-motions for summary judgment in Baskin v. Bogan, Fujii v. Pence, and Lee v. Pence (“June 25 Order”).

The memo continues:
That day, Defendant [Gov. Pence] issued an order to all executive branch agencies directing them to comply with the June 25 Order, and Indiana began issuing marriage licenses to hundreds of same-sex couples. (Exhibit 1, Mark G. Ahearn’s June 26, 2014 memo to all executive branch agencies). Also on that day, Indiana Attorney General Greg Zoeller filed a notice of appeal and an emergency request for a stay of the June 25 Order. Two days later, on June 27, 2014, the U.S. Court of Appeals for the 7th Circuit issued a stay pending resolution of Indiana’s appeal. In reaction to the stay, “the Governor’s general counsel instructed all executive branch agencies to stop any processes they had commenced in complying with” this Court’s order. (Exhibit 2, Mark G. Ahearn’s July 7, 2014 memo to all executive branch agencies (emphasis added)). The Governor declared IC § 31-11-1-1 to be “in full force and effect” and ordered all executive branch agencies “to execute their functions as though the U.S. District Court Order of June 25, 2014 had not been issued.” (Id.). * * *

The directives discussed above make clear that Governor Pence does in fact have the authority to enforce IC § 31-11-1-1, and necessitates that this Court reconsider its grant of Defendant’s Motion to Dismiss and restore Governor Pence as the Defendant in this action. * * *

This Court took Defendant at his word and dismissed Plaintiffs’ action, stating that Plaintiffs “point to no gubernatorial authority - as is their burden - to issue executive decrees telling other elected officials how to do their jobs when it comes to laws affecting marriage.” (DN 32, pg. 5). The same day this Court granted Defendant’s Motion to Dismiss, the Governor did precisely that: he told the executive branch agencies how to do their jobs when it comes to laws affecting marriage. * * *

The most telling display of gubernatorial authority over IC § 31-11-1-1 occurred on July 7, 2014, when the Governor declared IC § 31-11-1-1 to be “in full force and effect” and ordered all executive branch agencies “to execute their functions as though the U.S. District Court Order of June 25, 2014 had not been issued.” (Exhibit 2). In other words, the Governor single-handedly revoked hundreds of marriage licenses that had been granted to same-sex couples as a result of this Court’s June 25 Order. The decision was solely the Defendant’s[12] and it clearly constitutes the Governor “enforc[ing] against parties affected an unconstitutional act,” such that he may be enjoined from such action under the doctrine of Ex parte Young.13 The decision to revoke same-sex marriage licenses validly issued by the State of Indiana, as well as the other actions taken by the Governor following the Court’s June 25 Order, definitively show that the Governor of Indiana does indeed have “some connection with the enforcement of the act” required to make the Governor a proper party to the instant action. * * *

CONCLUSION. The memoranda issued by the Governor following this Court's orders on June 25, 2014 are directly contrary to every argument made by the Governor in his Motion to Dismiss. For the foregoing reasons, Plaintiffs respectfully ask that this Court reconsider its June 25, 2014 Entry on Defendant’s Motion to Dismiss and grant the Plaintiffs their requested relief.
[12] When explaining his decision, the Defendant stated, "I appreciate the confusion that has been created by different federal court decisions, but as governor I have to see to it that the state operates in a manner consistent with Indiana law.” http://www.indystar.com/story/news/politics/2014/07/09/state-recognize-june-marriages-sexcouples/ 12410207/ (accessed July 22, 2014).

Posted by Marcia Oddi on July 28, 2014 02:20 PM
Posted to Ind Fed D.Ct. Decisions