Friday, June 27, 2014

MARRIAGE EQUALITY IN THE HOOSIER STATE!! Analysis USDCJ Richard Youngs Ruling on IN DOMA should bring everyone to their feet in offense against the Attorney General Greg Zoeller's incompotence in office and wasting hundreds of thousands of taxpayer dollars.

UPDATE: 27th of June, 2014, as of 19:03 EST The Seventh District Circuit Court issued a stay in the Indiana Marriage Equality ruling. Still waiting on final tallies of how many Marriage Licenses were issued/Ceremonies performed and how many already were married in other jurisdictions but were now legally able to register their Marriages in Indiana. As soon as those results are available they will be posted here.

For those whom possibly havent heard yet, two days ago, United States District Court Judge Richard L. Young issued a ruling late Wednesday morning on several Marriage Equality Cases pending in the Federal Courts, which in turn single handedly struck down Indiana's Defense of Marriage Act on the grounds that it violated the 14th Amendment to the Constitution of the United States Equal Protection Clause and ushered in Same Sex Marriage almost immediately across the Hoosier State.

..... Pardon me for a moment ...WOOHOO!! YES!!  HALLERLUJAH!!

With in 48 hours of the ruling 80 of Indiana's 92 County Clerks (as of 22:17 last night) have started issuing marriage licenses and performing weddings, 186 in Marion County with 200 licenses issued on Wednesday alone and 57 couples in Allen County since yesterday, with more to follow today, until someone issues a stay on the ruling, or the 7th District Circuit Court steps in the way. There were some hiccups along the way, to the pointe that even though he has threatened to appeal as well as ask for a stay (aka waste even more tax dollars on a frivilous legal action) INAG Greg Zoeller has already issued this statement in the wake of the ruling:
From Indiana's Attorney General:

"For those county clerks that were named (Hamilton, Allen, Boone, Porter, Lake) in the cases ruled upon today please be aware that you must comply with the court’s ruling or be subject to contempt of court. Other county clerks are not under the direct jurisdiction of the court order but as an officer of the court we must encourage everyone to show respect for the judge and the orders that are issued."

There you have it folks, Allen County was listed in the ruling and yet still our own County Clerk was not ready for a response to the ruling for another three hours. Ironically the local News Stories at first wouldnt even list her by name even though she is an elected official. However with that being expressed, I must also applaud Lisbeth Borgmann for her prompt attention to due diligence and not putting a hold on the process of adapting documents and procedures in this situation, Allen County began issuing licenses at 14:00 Wednesday afternoon.



So Ive been reading the ruling and this USDCJ cleared the board when he handed down his ruling.

Mike Pence was excused from his cases as a defendant but then the Judge not only did he use the one primary exception to the 11th Amendment ( Under the Eleventh Amendment, a citizen cannot sue their state in federal court unless the state consents. However, the Supreme Court created an important exception to that immunity in Ex Parte Young (1908). Under that doctrine, “a private party can sue a state officer in his or her official capacity to enjoin prospective action that would violate federal law.” Ameritech Corp. v. McCann (7th Cir. 2002) (quoting Dean Foods Co. v. Brancel (7th Cir. 1999)).

USDCJ Young then verbally beat down the State Attorney General for being a moron of a Prosecutor and the Indiana Dept of Revenue Commissioner (INDORC) for being a dolt, caused by the undue burden of every married couple having to fill out and file 3 separate Federal Tax Forms in order to comply with Indiana's Tax Code circa the Marriage Prohibition.


Then the three (AG Zoller, GOV Pence, INDORC) tried to argue with the Judge over Baker v. Nelson, which has been roundly nullified in more recent years, especially by Lawrence v. Texas which outlawed all State Sodomy Laws across the board and then again last year in the USA v Windsor case and the Perry v Hollingsworth (aka the PROP8 case in California): (Page 13 of the ruling) ....

First, in United States v. Windsor, the Supreme Court invalidated Section 3 of The Defense of Marriage Act (“DOMA”), which defined marriage for purposes of federal law as “ only a legal union between one man and one woman.”. .... The Court noted that the differentiation within a state caused by DOMA “demeans the couple, whose moral and sexual choices the Constitution protects.” Windsor, ..... Additionally, the Court found that the purpose of DOMA “is to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages.”

Second, the Supreme Court dismissed an appeal of California’s prohibition on same-sex marriages, not because Baker rendered the question insubstantial, but because the law’s supporters lacked standing to defend it. Hollingsworth v. Perry. ....

So the USDCJ read them the riot act on trying to use Baker v. Nelson:

These developments strongly suggest, if not compel, the conclusion that Baker is no longer controlling and does not bar the present challenge to Indiana’s laws. .... (holding that Baker was not controlling as to the constitutionality of DOMA, reasoning that “[i]n the forty years after Baker, there have been manifold changes to the Supreme Court’s equal protection jurisprudence” and that “[e]ven if Baker might have had resonance . . . in 1971, it does not today”).

NOW THE RULING In summary and by pointe:

1. Due Process Clause of the 14th Amendment:

The Due Process Clause of the Fourteenth Amendment guarantees that no state shall “deprive any person of life, liberty, or property without the due process of law.” U.S. Const. amend. XIV § 1. The purpose of the Due Process Clause is to “protect[] those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty . . . .” Washington v. Glucksburg (1997) Because such rights are so important, “an individual’s fundamental rights may not be submitted to vote.” DeLeon (citing W. Va. State Bd. of Educ. v. Barnette, (1943)).

Defendants, relying on Glucksberg, argue that the fundamental right to marry should be limited to its traditional definition of one man and one woman because fundamental rights are based in history. The concept of same-sex marriage is not deeply rooted in history; thus, according to Defendants, the Plaintiffs are asking the court to recognize a new fundamental right. Plaintiffs counter that Defendants’ reliance on Glucksberg is mistaken because the Supreme Court has repeatedly defined the fundamental right to marry in broad terms.

2. The Traditions of History (aka the Institution of Marriage)

The court agrees with Plaintiffs. “Fundamental rights, once recognized, cannot be denied to particular groups on the ground that these groups have historically been denied those rights.” In re Marriage Cases, (Cal. 2008) (superseded by constitutional amendment).

In fact, “the history of our Constitution is the story of the extension of constitutional rights and protections to people once ignored or excluded.” United States v. Virginia. The reasoning in Henry v. Himes is particularly persuasive on this point: The Supreme Court has consistently refused to narrow the scope of the fundamental right to marry by reframing a plaintiff’s asserted right to marry as a more limited right that is about the characteristics of the couple seeking marriage. [T]he Court consistently describes a general ‘fundamental right to marry’ rather than ‘the right to interracial marriage,’ ‘the right to inmate marriage,’ or ‘the right of people owing child support to marry.’

3. Loving v. Virginia 1967 (interracial Marriage legalized)

The court finds Loving v. Virginia best illustrates that concept. In that case, the Court held that Virginia’s ban on interracial marriage violated the plaintiffs’ rights under the Due Process Clause. The Loving Court stated
“[t]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men,” and further recognized that, “marriage is one of the ‘basic civil rights of man.’”
If the Court in Loving had looked only to the “traditional” approach to marriage prior to 1967, the Court would not have recognized that there was a fundamental right for Mildred and Richard Loving to be married, because the nation’s history was replete with statutes banning interracial marriages between Caucasians and African Americans. Notably, the Court did not frame the issue of interracial marriage as a “new” right, but recognized the fundamental right to marry regardless of that “traditional” classification.

4. Judicial Scrutiny and Legal Ramifications (Page 19)

Defendants (STATE) agree that if the court finds that the fundamental right to marry encompasses same-sex marriages, then heightened scrutiny is appropriate.“When a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests.”

Strict scrutiny requires the government to show that the law is narrowly tailored to a compelling government interest. .... The burden to show the constitutionality of the law rests with the Defendants (STATE). .... For strict scrutiny to be appropriate, the court must find: (1) there is a fundamental right, and (2) the classification significantly interferes with the exercise of that right.

First, as stated above, the court finds that the fundamental right to marry includes the right of the individual to marry a person of the same sex. Second, Section 31-11-1-1 significantly interferes with that right because it completely bans the Plaintiffs from marrying that one person of their choosing. Therefore, Indiana’s marriage laws are subject to strict scrutiny.


Section 31-11-1-1, classifying same-sex couples, “cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests.” Zablocki, 434 U.S. at 388. Here, Defendants proffer that the state’s interest in conferring the special benefit of civil marriage to only one man and one woman is justified by its interest in encouraging the couple to stay together for the sake of any unintended children that their sexual union may create. The court does not weigh whether or not this is a sufficiently important interest, but will assume that it is. Defendants have failed to show that the law is “closely tailored” to that interest.

Indiana’s marriage laws are both over- and under-inclusive. The marriage laws are under-inclusive because they only prevent one subset of couples, those who cannot naturally conceive children, from marrying.

WHOOMP THERE IT IS!!! ==> For example, the State’s laws do not consider those post-menopausal women, infertile couples, or couples that do not wish to have children. Additionally, Indiana specifically allows first cousins to marry once they reach the age that procreation is not a realistic possibility. On the other hand, Indiana’s marriage laws are over-inclusive in that they prohibit some opposite-sex couples, who can naturally and unintentionally procreate, from marriage. For example, relatives closer in degree than second cousins can naturally and unintentionally procreate; however, they still may not marry.

Most importantly, excluding same-sex couples from marriage has absolutely no effect on opposite-sex couples, whether they will procreate, and whether such couples will stay together if they do procreate. Therefore, the law is not closely tailored, and the Defendants have failed to meet their burden. The state, by excluding same-sex couples from marriage, violates Plaintiffs’ fundamental right to marry under the Due Process Clause.

5. Back to the Equal Protection Clause

Summary: Under Strict Scrutiny, the IN DOMA law DOES NOT discriminate based on Gender! (Page 23)

HOWEVER: Plaintiffs also argue that Indiana’s marriage laws classify individuals based on their sexual orientation, because they prevent all same-sex couples from marrying the person of their choice. Defendants respond that the marriage laws do not discriminate against same-sex couples because they may marry just like opposite-sex couples may marry; the law merely impacts them differently. The court rejects this notion. As the court stated above, the right to marry is about the ability to form a partnership, hopefully lasting a lifetime, with that one special person of your choosing. Additionally, although Indiana previously defined marriage in this manner, the title of Section 31-11-1-1 – “Same sex marriages prohibited” – makes clear that the law was reaffirmed in 1997 not to define marriage but to prohibit gays and lesbians from marrying the individual of their choice. Thus, the court finds that Indiana’s marriage laws discriminate based on sexual orientation.


For strict scrutiny to be appropriate, the court must find: (1) there is a fundamental right, and (2) the classification significantly interferes with the exercise of that right. .... For rational scrutiny to be the standard of the 7th Circuit The court disagrees and believes it is bound to apply rational basis because one of the cases the Court relied on in Schroeder, e.g. Romer, is still valid law. .... The court agrees with Plaintiffs that it is likely time to reconsider this issue, especially in light of the Ninth Circuit’s decision in SmithKline Beecham Corp. v. Abbott Labs (9th Cir. 2014) (interpreting Windsor to mean that gay and lesbian persons constitute a suspect class). However, the court will leave that decision to the Seventh Circuit, where this case will surely be headed. The court will, therefore, apply rational basis review.


According to Defendants, Johnson () means that they must only show that there is a rational reason to provide the right of marriage to opposite-sex couples, not that there is a rational basis to exclude. In essence, Defendants assert that the opposite-sex couples have distinguishing characteristics, the ability to naturally and unintentionally procreate as a couple, that allow the State to treat them differently from same-sex couples.

7B. IN DOMA was passed in a knee jerk reaction the Federal DOMA
and to Hawaii's original passage of Marriage Equality circa 1996-7. (Page 25-27)

Plaintiffs, on the other hand, allege that the primary purpose of the statute is to exclude same-sex couples from marrying and thus the Defendants must show a rational basis to exclude them. The court agrees with Plaintiffs.

According to Plaintiffs, the purpose is evident by the timing of the statute, which was passed in an emergency session near the time that DOMA was passed and immediately after and in response to a Hawaiian court’s pronouncement in Baehr v. Miike (Haw. Cir. Ct. Dec. 3, 1996),(Haw. 1997), that same-sex couples should be allowed to marry. See Family Law – Marriage – Same Sex Marriages Void, 1997 Ind. Legis. Serv. P.L. 198-1997 (H.E.A. 1265). Because the effect of the law is to exclude and void same-sex marriages, the Plaintiffs argue that the court should analyze whether there is a rational basis to exclude same-sex marriages.

Additionally, Plaintiffs assert they are similar in all relevant aspects to opposite-sex couples seeking to marry – they are in long-term, committed, loving relationships and some have children.

7C. 614 Reasons why the Court agrees that gay and straight couples are the same.

The court agrees with Plaintiffs that they are similarly situated in all relevant aspects to opposite-sex couples for the purposes of marriage. Also of great importance is the fact that unlike the statute at issue in Johnson, “[m]arriage is more than a routine classification for purposes of certain statutory benefits.” Windsor, 133 S. Ct. at 2693. In fact having the status of “married” comes with hundreds of rights and responsibilities under Indiana and federal law. See 614 Reasons Why Marriage Equality Matters in Indiana, Fujii, Filing No. 46-2).

As the court in Kitchen stated in analyzing the Equal Protection claim before it: "[T]he State poses the wrong question. The court’s focus is not on whether extending marriage benefits to heterosexual couples serves a legitimate governmental interest. No one disputes that marriage benefits serve not just legitimate, but compelling governmental interests, which is why the Constitution provides such protection to an individual’s fundamental right to marry. Instead, courts are required to determine whether there is a rational connection between the challenged statute and a legitimate state interest. Here, the challenged statute does not grant marriage benefits to opposite-sex couples.

The effect of [Utah’s marriage ban] is only to disallow same-sex couples from gaining access to these benefits. The court must therefore analyze whether the State’s interests in responsible procreation and optimal child-rearing are furthered by prohibiting same-sex couples from marrying. Like Utah’s laws, the effect of Indiana’s marriage laws is to exclude certain people from marrying that one special person of their choosing. This is evident by the title of Section 31-11-1-1 – “Same sex marriages prohibited.”

Consequently, the question is whether it is rational to treat same- sex couples differently by excluding them from marriage and the hundreds of rights that come along with that marriage.


The court finds that there is no rational basis to exclude same-sex couples. The purpose of marriage – to keep the couple together for the sake of their children – is served by marriage regardless of the sexes of the spouses. Furthermore, the exclusion has no effect on opposite-sex couples and whether they have children or stay together for those children. Defendants proffer no reason why excluding same-sex couples from marriage benefits opposite -sex couples. The court concludes that there simply is no rational link between the two. (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); (noting that prohibiting same-sex marriages “does not stop [gay men and lesbian women] from forming families and raising children. Nor does prohibiting same-sex marriage increase the number of heterosexual marriages or the number of children raised by heterosexual parents.”).


Defendants concede that whether Indiana can refuse to recognize out-of-state, same-sex marriages turns entirely on whether Indiana may enforce Section A. Because the court finds that Indiana may not exclude same-sex couples from marriage, the court also finds it cannot refuse to recognize out-of-state, same-sex marriages. Nevertheless, the court finds that Section B violates the Equal Protection Clause independent of its decision regarding Section A.

The parties agree that out-of-state, same-sex marriages are treated differently than out-of-state, opposite-sex marriages. Thus, the question is whether that difference violates the Equal Protection Clause. .... The Eastern District of Kentucky found two guiding principles from Windsor that strongly suggest the result here. See Bourke v. Beshear (W.D. Ky. Feb 12, 2014). First, the court should look to the actual purpose of the law. The second principle is that such a law “demeans the couple, whose moral and sexual choices the Constitution protects.”


The purpose of the law is to prevent the recognition of same-sex marriage in Indiana, which Plaintiffs assert was motivated by animus. If Section 31-11-1-1 was in fact motivated by animus, it violates the principles of the Equal Protection Clause. See Romer (“[I]f the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate state interest.”) (emphasis in original) (quoting Dep’t of Agriculture v. Moreno (1973)). Section 31-11-1-1 (IN DOMA), like DOMA, was passed during the time that Hawaii courts were deciding whether the United States Constitution required it to allow same-sex marriages.

Additionally, Section 31-11-1-1 is an unusual law for Indiana to pass. As described above, in Indiana “[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 unless they are over 65 years of age. See Mason v. Mason, (Ind. Ct. App. 2002). The State of Indiana chose one group to single out for disparate treatment. The State’s laws place same-sex marriages in a second class category, unlike other marriages performed in other states. Thus, like the Supreme Court in Windsor, this court can conclude that this law is motivated by animus, thus violating the Equal Protection Clause.


Even if it were not, the law fails rational basis review. Defendants proffer that the state refuses to recognize same-sex marriages because it conflicts with the State’s philosophy of marriage – that is that marriage is to ameliorate the consequences of unintended children. Recognizing the valid same-sex marriages performed in other states, however, has no link whatsoever to whether opposite-sex couples have children or stay together for those children. Thus, there is no rational basis to refuse recognition and void out-of-state, same-sex marriages. Therefore, Part B violates the Fourteenth Amendment’s Equal Protection Clause.

I will let you read the USDCJ Conclusion (beginning on page 31) for yourself. It is a doosey and this ruling is going to be hard pressed to be turned over, because of the incompetence of both our current Attorney General and our General Assembly members from both 1997 and currently serving today in Indianapolis. I will leave you though with this quote from the Judge:

In time, Americans will look at the marriage of couples such as Plaintiffs, and refer to it simply as a marriage – not a same-sex marriage. These couples, when gender and sexual orientation are taken away, are in all respects like the family down the street. The Constitution demands that we treat them as such. Today, the “injustice that [we] had not earlier known or understood” ends. Because “as the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”


JosephStauth said...

I thought this blog was for the Libertarian party and not a gay forum. It is switching to all gay politics.

Robert Enders said...

The federal court ruling is what's hot right now. It's what Fozy is excited about and he's entitled to his moment. I'll talk about other stuff soon.

JosephStauth said...

It might be "Fozy's" moment but it is not necessary everyone's "moment".... It is his personal opinion.

Search This Blog

Alfie Evans

1. When a doctor says A and a parent says B, I tend to go with what the doctor says. Usually the doctors are right. After reviewing Alfie...

Blog Archive


Brgd. General Anthony Wayne US Continental Army


My blog is worth $11,855.34.
How much is your blog worth?


About Commenting

Keep it clean and relevant to the post. If you have a question that isn't related to a recent post, email me at . You can also email me if you want to make an anonymous comment.


Per the by-laws of the Libertarian Party of Allen County, the Chair is the official spokesperson of LPAC in all public and media matters.

Posts and contributions expressed on this forum, while being libertarian in thought and intent, no official statement of LPAC should be derived or assumed unless specifically stated as such from the Chair, or another Officer of the Party acting in his or her place, and such statements are always subject to review.