NEWS

Fourth lawsuit aimed at Indiana same-sex marriage ban

Jill Disis and Tim Evans
jill.disis@indystar.com

1:25 p.m. update: A fourth lawsuit challenging Indiana's same-sex marriage ban was filed this morning in U.S. District Court.

The lawsuit was filed by the law firm of Richard Mann, a local professional corporation of attorneys. Named in the lawsuit are an Indianapolis couple who were married in Iowa, and a woman who was married in Iowa and lives in Indiana and wants recognition of her marriage here as she seeks a divorce from her wife.

The lawsuit was filed as a similar federal lawsuit also was filed in Indianapolis today by the American Civil Liberties Union of Indiana. The two mark the third and fourth such lawsuits filed in a week in Indiana. Both also come at the conclusion of the most recent session of the Indiana General Assembly.

"By request of various HJR3 opposition grous, our firm waited until today to file the federal suit to ensure the Indiana General Assembly would be foreclosed from inserting the second sentence of the proposed constitutional amendment back into the bill, thus putting it on the ballot this fall," the Richard Mann law office said in a statement. "With the General Assembly having concluding business yesterday without threat of HJR3, we are pleased to join with the many supporters of equality to challenge the discriminatory laws against same-sex couples here in Indiana."

Earlier: Third lawsuit aimed at Indiana same-sex marriage ban

A trio of federal lawsuits challenging Indiana's same-sex marriage ban have been filed this month, joining a mounting number of similar complaints cropping up in courts nationwide.

The American Civil Liberties Union of Indiana filed a lawsuit Friday morning in U.S. District Court for the Southern District of Indiana on behalf of 15 plaintiffs, including two children of same-sex couples, challenging the same-sex marriage ban and the state's refusal to recognize gay unions legally performed in other states.

The ACLU suit marked the third such complaint filed in Indiana this month, following a challenge to Indiana's law filed Monday by gay-rights legal organization Lambda Legal, and another lawsuit filed in the same U.S. District Court last Friday by four other Indiana same-sex couples.

"The government is a powerful teacher of discrimination," said Sean Lemieux, an attorney working on the ACLU case. "There is no justification for Indiana to treat these families as second-class citizens. The families in this case want the responsibility, security and dignity that only marriage provides, and their children deserve the same protections that other Indiana families enjoy."

The Indiana legal challenges are part of a national wave of lawsuits targeting state bans on same-sex marriages. This week, similar challenges were filed in Florida and Arizona. While Indiana bans same-sex marriage by state statute, both of those states also have constitutional bans against the practice.

Rae Baskin, 60, and Esther Fuller, 78, of Whitestown, are among the three same-sex couples named as plaintiffs in the Lambda Legal suit.

"We've been together for 24 years," Baskin told The Indianapolis Star on Thursday. "We just want what everybody else wants."

While other couples, including two named in the federal lawsuit brought last Friday, already have married in states that recognize same-sex marriage, Baskin said she and partner Fuller have held off in the hopes of getting married in the state that they call home.

"I feel that it's time for us, at least for me, to stand up and say, 'This is what is fair for the state of Indiana,'" Baskin said. "It is just a wonderful state to live in and to grow up in, and it deserves to be known for accepting the responsibilities for civil liberties, as well."

Baskin said the ability to marry takes on a special significance for her and Fuller as they start making plans for end-of-life care. Fuller, who is 78, underwent breast cancer surgery in 2008 and broke her hip in 2009. While Baskin has legal control over Fuller's care, she said the extra precautions the couple has needed to take are an unncessary burden.

"When she broke her hip and I got a call saying she's in an ambulance on her way to the hospital," Baskin said, "the last thing I want to think about was that I've got all of the documents to make sure she is taken care of the way she needs to be ...

"If we were legally recognized as wife and wife, it would just be automatic."

The ACLU lawsuit names as defendants Gov. Mike Pence, the Commissioner of the Indiana State Department of Health William VanNess, and the clerks of Allen and Hamilton counties.

The Lambda Legal lawsuit, filed Monday but announced Thursday, named several defendants, including Boone County Clerk Penny Bogan, Porter County Clerk Karen M. Martin, Lake County Clerk Michael A. Brown and Indiana Attorney General Greg Zoeller.

In a statement released Thursday, Zoeller reiterated his intention to defend Indiana's marriage definition statute from all legal challenges.

"When plaintiffs who disagree with an Indiana statute file a challenge in court, I have a duty as Indiana's Attorney General to defend our state and the statute the Legislature passed to the best of my skill and ability — and will do so here, both now and on any appeal," Zoeller. "Though such cases elicit strong opinions on both sides, Hoosiers should maintain civility and respect toward each other while the court does its work."

The Indiana lawsuits come on the heels of the Indiana General Assembly's decision to change and thus delay a proposal that would have enshrined a same-sex marriage ban in the state constitution.

As introduced, House Joint Resolution 3, also would have banned recognition of civil unions, but lawmakers decided to strip that provision. The move angered many social conservatives because it effectively delayed a proposed public referendum on the issue until at least 2016. Two separately elected legislatures must approve constitutional amendments with identical language before they can go to voters.

Supporters of HJR-3 had argued the constitutional amendment was needed to protect Indiana's ban on same-sex marriage.

Without that amendment, the state is left open to these kinds of legal challenges, said Micah Clark, the executive director of the American Family Association, which opposes same-sex marriage

"The legislature knew this. We knew this. This is no surprise," Clark said. "Unfortunately, the legislature chose to leave this for the hands of the judges and not the hands of the people.

"Had the legislature passed HJR-3 as originally filed and had this been on the ballot this fall, I don't think these lawsuits would have been filed."

The three Indiana lawsuits are among dozens of similar legal challenges filed nationwide that took off last year after a U.S. Supreme Court decision gave full federal recognition to legally married gay couples. Recent public opinion polls also have shown growing acceptance of gay marriage.

Since December, federal courts have struck down state laws in Illinois, Kentucky, Oklahoma, Virginia, Texas and Utah banning same-sex marriages or prohibiting the recognition of similar unions performed in the more than 15 states where they are legal.

The couples who filed the Indiana lawsuit last Friday are represented by the same attorney who successfully challenged the Kentucky law.

That challenge, though, bothered some same-sex marriage advocates who feared a political backlash might erupt just as efforts to pass the Indiana constitutional ban had faded.

Jerame Davis, co-publisher of the Bilerico Project, a blog that focuses on gay, lesbian, bisexual and transgender issues, said he thinks that attorney "jumped the gun" by not waiting until the end of the Indiana General Assembly's legislative session to file the suit.

Still, he said the growing number of lawsuits in Indiana and across the country could ultimately lead to a watershed moment for same-sex marriage recognition.

"I think there are more lawsuits coming," said Davis, who also advocated for LGBT rights in Indiana for a decade.

"I think, eventually, the patchwork of cases is going to lead to a Supreme Court case. We already have kind of a mess of what is and isn't recognized."

Call Star reporter Jill Disis at (317) 444-6137. Follow her on Twitter: @jdisis.