2:14-cv-00325 #3

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
VERONICA ROMERO, individually and as
parent and next friend of B.Y.R. and I.R.,
and MAYRA YVETTE RIVERA
Plaintiffs,
v.
MICHAEL A. BROWN, in his official
capacity as LAKE 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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Civil Action No. 2:14-cv-0325
MEMORANDUM IN SUPPORT OF PLAINTIFFS
VERONICA ROMERO, MAYRA YVETTE RIVERA, B.Y.R., AND I.RS
MOTION FOR TEMPORARY RESTRAINING ORDER
case 2:14-cv-00325-JVB-PRC document 3 filed 09/08/14 page 1 of 39
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TABLE OF CONTENTS
INTRODUCTION......................................................................................................................... 1
FACTUAL BACKGROUND....................................................................................................... 2
LEGAL STANDARD................................................................................................................... 5
ARGUMENT................................................................................................................................. 6
I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR
CLAIMS THAT THE INDIANA MARRIAGE BAN IS
UNCONSTITUTIONAL. ................................................................................................. 7
A. Indianas Marriage Ban Violates Equal Protection By Denying Mayra and
Veronica Recognition of Their Existing Illinois Marriage. .................................... 8
1. Mayra and Veronica are similarly situated to heterosexual couples
for purposes of marriage. ............................................................................ 9
2. The marriage ban discriminates on the basis of sexual orientation. ........... 9
3. The marriage ban cannot survive rational basis review, let alone
heightened scrutiny. .................................................................................. 10
a. There is no rational relationship between the marriage ban
and any asserted interest related to procreation or the
promotion of optimal parenting. ................................................... 12
b. The marriage ban cannot be justified by an asserted interest
in maintaining a traditional definition of marriage. ...................... 14
c. No legitimate interest overcomes the primary purpose and
practical effect of the marriage banwhich is to disparage
and demean same-sex couples and their families. ........................ 15
4. Heightened scrutiny applies because the marriage ban
discriminates on the basis of sexual orientation. ...................................... 16
5. Heightened scrutiny applies because the marriage ban also
discriminates on the basis of sex............................................................... 18
B. By Denying Mayra and Veronica the Right to Have Their Existing Illinois
Marriage Recognized, Indianas Marriage Ban Violates Due Process. ................ 19
1. The Indiana marriage ban infringes Mayra and Veronicas
fundamental right to marry. ...................................................................... 20
iii
2. The Indiana marriage ban deprives Mayra and Veronica of a
protected liberty interest in their existing Illinois marriage. ..................... 23
II. PLAINTIFFS HAVE NO ADEQUATE REMEDY AT LAW AND ARE
HIGHLY LIKELY TO SUFFER IRREPARABLE HARM. ..................................... 24
III. GRANTING INJUNCTIVE RELIEF WILL NOT HARMDEFENDANTS
AND WILL PROMOTE THE PUBLIC INTEREST.................................................. 29
CONCLUSION ........................................................................................................................... 30
iv
TABLE OF AUTHORITIES
Cases
Abbott Labs. v. Mead Johnson & Co.,971 F.2d 6 (7th Cir. 1992) .................................................. 5
Baskin v. Bogan, 14-2386, 2014 WL 4359059 (7th Cir. Sept. 4, 2014). ...................... 8, 11, 12, 23
Bd. of Trustees of Univ. of Ala. v. Garrett,
531 U.S. 356 (2001).................................................................................................................. 11
Ben-Shalom v. Marsh,
881 F.2d 454 (7th Cir. 1989) .................................................................................................... 17
Bishop v. U.S. ex rel. Holder,
2014 WL 116013 (N.D. Okla. Jan. 14, 2014)................................................................. 7, 11, 12
Bolkovac v. State,
98 N.E.2d 250 (Ind. 1951) ........................................................................................................ 23
Bostic v. Rainey,
No. 2:13-cv-395, 2014 WL 561978 (E.D. Va. Feb. 13, 2014) ............................................. 7, 21
Bourke v. Beshear,
2014 WL 556729 (W.D. Ky. Feb. 12, 2014) ........................................................................ 7, 11
Bowers v. Hardwick,
478 U.S. 186 (1986)............................................................................................................ 16, 17
Brunswick Corp. v. Jones, 784 F.2d 271 (7th Cir. 1986) ............................................................... 5
Califano v. Webster,
430 U.S. 313 (1977).................................................................................................................. 19
City of Cleburne v. Cleburne Living Ctr., Inc.,
473 U.S. 432 (1985).................................................................................................. 8, 10, 11, 15
Cmty. Pharmacies of Indiana, Inc. v. Indiana Family & Soc. Servs. Admin., 801 F. Supp. 2d 802
(S.D. Ind. 2011) .......................................................................................................................... 5
Cohen v. Cohama County, Miss.,
805 F. Supp. 398 (N.D. Miss. 1992)......................................................................................... 25
Darby v. Orr,
No. 12-CH-19718 (Ill. Cir. Ct., Cook Cnty. Sept. 27, 2013)...................................................... 7
De Leon v. Perry,
No. SA-13-CA-00982, 2014 WL 715741 (W.D. Tex. Feb. 26, 2014) .............................. passim
DeBoer v. Snyder, F. Supp. 2d, 2014 WL 1100794 (E.D. Mich. 2014) ............... 7, 11, 12, 13
v
DiDomenico v. Employers Co-op. Indus. Trust, 676 F. Supp. 903 (N.D. Ind. 1987)................... 30
Does v. City of Indianapolis,
2006 WL 2927598 (S.D. Ind. Oct. 5, 2006) ....................................................................... 25, 29
Eisenstadt v. Baird,
405 U.S. 438 (1972).................................................................................................................. 10
Equality v. Dow,
79 A.3d 1036 (N.J. 2013) ........................................................................................................... 8
Gill v. Office of Pers. Mgmt.,
699 F. Supp. 2d 374 (D. Mass. 2010) ....................................................................................... 12
Golinski v. U.S. Office of Pers. Mgmt.,
824 F. Supp. 2d 968 (N.D. Cal. 2012) ...................................................................................... 17
Goodridge v. Dept of Public Health,
798 N.E.2d 941 (Mass. 2003) ................................................................................................... 22
Gray v. Orr,
2013 WL 6355918 (N.D. Ill. Dec. 5, 2013)........................................................................ 25, 28
Griego v. Oliver,
316 P.3d 865 (N.M. 2013) .......................................................................................................... 7
Griswold v. Connecticut,
381 U.S. 479 (1965).................................................................................................................. 20
Heller v. Doe,
509 U.S. 312 (1993).................................................................................................................. 14
Howard v. Child Welfare Agency Rev. Bd.,
Nos. 1999-9881, 2004 WL 3154530 and 2004 WL 3200916 (Ark. Cir. Ct. Dec. 29, 2004) ... 14
In re Adoption of Doe,
2008 WL 5006172 (Fla. Cir. Ct. Nov 25, 2008)....................................................................... 14
In re Balas,
449 B.R. 567 (Bankr. C.D. Cal. 2011)...................................................................................... 17
In re Lenherr Estate,
314 A.2d 255 (Pa. 1974) ........................................................................................................... 21
In re Marriage Cases,
183 P.3d 384 (Cal. 2008) .......................................................................................................... 22
J.E.B. v. Ala. ex rel. T.B.,
511 U.S. 127 (1994).................................................................................................................. 18
vi
Joiner v. Village of Washington Park, Ill., 378 F.3d 613 (7th Cir. 2004) .................................... 30
Kerrigan v. Commr of Pub. Health,
957 A.2d 407 (Conn. 2008) ...................................................................................................... 18
Kitchen v. Herbert,
961 F. Supp. 2d 1181 (D. Utah 2013)....................................................................................... 21
Kraft Foods Grp. Brands LLC v. Cracker Barrel Old Country Store, Inc., 735 F.3d 735 (7th Cir.
2013) ........................................................................................................................................... 6
Lee v. Orr,
No. 1:13-cv-08719, 2014 WL 683680 (N.D. Ill. Feb. 21, 2014)................................................ 7
Loving v. Virginia,
388 U.S. 1 (1967).......................................................................................................... 20, 21, 23
M.L.B. v. S.L.J.,
519 U.S. 102 (1996).................................................................................................................... 9
Madewell v. United States,
84 F. Supp. 329 (E.D. Tenn. 1949)........................................................................................... 21
Mason v. Mason,
775 N.E.2d 706 (Ind. Ct. App. 2002) ....................................................................................... 23
Massachusetts v. U.S. Dept of Health & Human Servs.,
682 F.3d 1 (1st Cir. 2012)......................................................................................................... 18
McLaughlin v. Florida,
379 U.S. 184 (1964).................................................................................................................. 18
Michigan v. U.S. Army Corps of Engrs,667 F.3d 765 (7th Cir. 2011) .......................................... 5
Miss. Univ. for Women v. Hogan,
458 U.S. 718 (1982).................................................................................................................. 19
Moore v. City of East Cleveland,
431 U.S. 494 (1977).................................................................................................................. 20
Obergefell v. Kasich,
No. 1:13-cv-501, 2013 WL 3814262 (S.D. Ohio July 22, 2013) ....................................... 26, 29
Obergefell v. Wymyslo,
962 F. Supp. 2d 968 (S.D. Ohio 2013) ....................................................................................... 7
Pedersen v. Office of Pers. Mgmt.,
881 F. Supp. 2d 294 (D. Conn. 2012)....................................................................................... 17
vii
Perry v. Schwarzenegger,
704 F. Supp. 2d 921 (N.D. Cal. 2010) ................................................................................ 21, 22
Planned Parenthood of Wis., Inc. v. Van Hollen, 738 F.3d 786 (7th Cir. 2013) ............................ 5
Pratt v. Chicago Hous. Auth., 848 F. Supp. 792 (N.D. Ill. 1994)................................................. 30
Preston v. Thompson,
589 F.2d 300 (7th Cir. 1978) .................................................................................................... 25
Reinders Bros., Inc. v. Rain Bird E. Sales Corp.,627 F.2d 44 (7th Cir. 1980) ............................... 6
Romer v. Evans,
517 U.S. 620 (1996)...................................................................................................... 10, 11, 15
Schroeder v. Hamilton Sch. Dist.,
282 F.3d 946 (7th Cir. 2002) .................................................................................................... 16
SmithKline Beecham Corp. v. Abbott Laboratories,
740 F.3d 471 (9th Cir. 2014) .................................................................................................... 16
Tanco v. Haslam,
2014 WL 997525 (M.D. Tenn. Mar. 14, 2014) .............................................................. 7, 26, 29
Tanford v. Brand, 883 F. Supp. 1231 (S.D. Ind. 1995) ................................................................ 30
Turner v. Safley,
482 U.S. 78 (1987).................................................................................................................... 20
United States Dept of Agric. v. Moreno,
413 U.S. 528 (1973)............................................................................................................ 10, 11
United States v. Virginia,
518 U.S. 515 (1996)............................................................................................................ 18, 19
Varnum v. Brien,
763 N.W.2d 862 (Iowa 2009) ............................................................................................ passim
Video-Home-One, Inc. v. Brizzi, 2005 WL 3132336 (S.D. Ind. Nov. 22, 2005) .......................... 29
Village of Arlington Heights v. Metro Housing Dev. Corp.,
429 U.S. 252 (1977).................................................................................................................. 11
Washington v. Glucksberg,
521 U.S. 702 (1997)............................................................................................................ 19, 21
Wayne Chem., Inc. v. Columbus Agency Serv. Corp., 567 F.2d 692 (7th Cir. 1977) ................... 31
Webster v. Reproductive Health Servs.,
492 U.S. 490 (1989).................................................................................................................. 20
viii
Williams v. Illinois,
399 U.S. 235 (1970).................................................................................................................. 14
Windsor v. United States,
699 F.3d 169 (2d Cir. 2012) ..................................................................................................... 17
Windsor v. United States, 133 S. Ct. 2675 (2013) ................................................................. passim
Young v. Ballis,
762 F. Supp. 823 (S.D. Ind. 1990)............................................................................................ 25
Zablocki v. Redhail,
434 U.S. 374 (1978)...................................................................................................... 19, 21, 22
Statutes
Ind. Code 29-1-3-1..................................................................................................................... 30
Ind. Code 29-1-4-1..................................................................................................................... 30
Ind. Code 31-11-1-1............................................................................................................... 1, 13
Other Authorities
U.S. Const. Amend. XIV, 1 ......................................................................................................... 9
Regulations
20 C.F.R. 404.335(a)(1) 30
20 C.F.R. 404.345...................................................................................................................... 30
INTRODUCTION
Veronica Romero (Veronica), known by her friends as (Veronica), is a wife and
mother of two young girls. Her soul mate and loving partner of twenty-seven years, Mayra
Yvette Rivera ("Mayra"), has Stage IV ovarian cancer. Because of this aggressive cancer, Mayra
measures the rest of her life in days, not months or years. Veronica dreads the day Mayra will
die: not only for the devastating loss to their family, including their children B.Y.R. and I.R., but
also because she and Mayra live in the State of Indiana (State), which deems her a legal
stranger to Mayra. Under Indiana law, the State refuses to recognize Mayras legal marriage to
Veronica, celebrated in Illinois on March 7, 2014. And when Mayra dies, Veronica will receive
a death certificate from the State that records Mayra as unmarriedwhich will interfere with
Veronicas ability to take care of Mayras affairs after her death, and to access the safety net
generally available to a surviving spouse and a decedents children. More importantly, though,
the States insistence that Mayra is unmarried would constitute a deeply hurtful denial of
Veronicas pain and loss as a surviving spouse, compounding her grief. For this reason, Mayra,
Veronica, B.Y.R., and I.R. move the Court for emergency relief to order the State of Indiana
immediately to recognize their status as a lawfully wedded couple.
The State of Indiana denies respect to Mayra and Veronicas marriage because, in
addition to prohibiting issuance of marriage licenses to same-sex couples, Indiana also renders
void any out-of-state marriage between persons of the same sex. See Ind. Code 31-11-1-1(b)
(collectively with any other provisions of Indiana statutes that could be construed to constitute a
statutory ban on marriage for same-sex couples, the marriage ban). Indianas marriage ban
deprives Mayra and Veronica of the dignity of being able to hold themselves out to their children
and their community as being married in the eyes of the State, hinders Mayras ability to obtain
vital medical care, and will prevent Veronica from receiving benefits for surviving spouses that
will allow her to care for their children after Mayras passing.
The reason for the States denial of Mayra and Veronicas marriagelifes most sacred
and important relationship, and a fundamental right guaranteed to every personis their sex and
sexual orientation. This plainly violates their equal protection and due process rights, as
numerous district courts have recognized when striking down similar marriage bans in other
states. Specifically, the Seventh Circuit recently concluded that there is no "reasonable basis" for
forbidding same-sex marriage and that Indiana's marriage ban is an unconstitutional denial of
equal protection of the laws. But because of Mayras rapidly deteriorating health, Mayra,
Veronica, B.Y.R., and I.R. simply cannot wait for this Court to finally and permanently vindicate
their constitutional rights with a final judgment in this case. Therefore, they ask this Court to
enter a temporary restraining order and preliminary injunction prohibiting Defendants from
enforcing Indianas marriage ban as applied to them, and requiring the State to recognize their
valid Illinois marriage for all purposes, including when issuing a death certificate.
FACTUAL BACKGROUND
Veronica and Mayra are a lesbian couple living in Whiting, Lake County, Indiana. (See
Exhibit A, Decl. of Veronica Romero 3.) They have been in a loving and committed
relationship for over twenty-seven years. (Id. 4.) Mayra and Veronica were married in the
State of Illinois on March 7, 2014. (Id. 4.)
Veronica and Mayra grew up across the street from each other. (Id. 6.) Mayra was a
classmate and friend of Veronicas brothers and sisters. (Id.) When Veronica was 19, she ran
into Mayra one evening after work. (Id. 7.) They immediately rekindled their friendship and
exchanged telephone numbers. (Id.) Less than a month later, they were officially dating. (Id.)
After another six months, Mayra and Veronica moved in together as a romantic couple. (Id.)
Sometime around September 1996, Veronica learned that her sister was seven months
pregnant. (Id. 9.) Her sister was not able to raise another child on her own. (Id.) Mayra and
Veronica both love children and had planned to start a family of their own, so it was an easy
decision for them to raise the child as their own. (Id.) On November 11, 1996, B.Y.R. was born.
Mayra and Veronica took B.Y.R. home from the hospital and have loved and cared for her ever
since. B.Y.R. thinks of both Mayra and Veronica as her mothers. (Id.)
On January 3, 2006, Veronica gave birth to I.R. (Id. 11.) Mayra, Veronica, B.Y.R. and
I.R. were living together as a happy family and things were as good as they had ever been. (Id.)
Beginning in late May 2011, Mayra started to complain of back pain and bloating in her
stomach. (Id. 12.) Over the next few weeks, the pain and discomfort kept getting worse. (Id.)
Veronica finally convinced Mayra that she needed to see a doctor. (Id.) On June 6, 2011,
Veronica took Mayra to the emergency room at St. Catherines Hospital in East Chicago,
Indiana. (Id.) After performing a CT scan, the doctors broke the terrible news: Mayra had Stage
3C ovarian cancer. (Id.)
Mayra was admitted to the hospital immediately and underwent a full hysterectomy and
debulking surgery to remove not only her ovaries but also her uterus, cervix, fallopian tubes, and
as much of the cancer as possible. (Id. 13.) Mayra has had to use a colostomy bag ever since.
(Id.) After four months of intensive chemotherapy, Mayras doctors told her that she was in
remission. (Id. 14.) Mayra and Veronica were filled with joy. (Id.) But in November 2011,
Veronica had to take Mayra back to the hospital because she was unable to use the bathroom.
(Id. 15.) The doctors told them that Mayra had scar tissue from the original surgery that was
causing a blockage. (Id.) Mayra needed another surgery. (Id.)
After surgery, Mayra was put on another round of chemotherapy. (Id. 16.) After she
completed this second round of chemotherapy, her doctors once again told the couple that Mayra
was back in remission. (Id.) Less than a month later, however, she was back in the hospital.
Mayras cancer had returned and it was spreading throughout her body. (Id.) This time around,
the doctors told Mayra that she would have to take chemotherapy three to five times a week, for
the rest of her life. (Id.)
For the past three years, Mayras life has been an overwhelming battle with ovarian
cancer, and Veronica has been her caretaker since the initial diagnosis of terminal cancer. (Id.
17.) The chemotherapy has taken a devastating toll on Mayras body. (Id.) In June of this
year, her kidneys began to fail because they were essentially being choked by her cancer. (Id.)
Mayra had to have a stent placed in her kidneys to keep the urine from backing up inside her.
(Id.) By July, her cancer had spread even more and was wrapping itself around her intestines.
(Id.) The doctors had to give Mayra an ileostomy to move waste out of her body because her
colon simply would not work anymore. (Id.)
On July 22, 2014, Mayra's doctors sent her home and placed her on hospice care. (Id.
18.) There is nothing else they can do for her. (Id.) At this point, the goal is simply to keep
Mayra as comfortable as possible in her final days. (Id.)
The uncertainty about Mayras health has made Veronica more concerned about the
security of their relationship and family. (Id. 23.) The need to have their marriage recognized
so that they can safeguard their family is incredibly urgent. (Id.) Veronica has no savings, no
checking account, and no real assets. Even their home is in Mayra's name. (Id.) Mayra was the
breadwinner in the relationship. (Id.) Without the legal status as Mayra's wife, Veronica fears
what will happen to her home and the assets that are in Mayra's name. (Id.)
It would be devastating to Veronica if, after Mayra passes away, she received a record of
Mayra's death that indicated Mayra was single and had no surviving spouse. (Id. 24.) Not only
would that be a denial of Veronica's love for and commitment to Mayra, it would also be grossly
unfair to their children, who deserve to have their parents respected and remembered as a loving,
committed, and married couple. (Id.)
LEGAL STANDARD
The standard for the issuance of a TRO is the same standard applied for the issuance of
a preliminary injunction. Cmty. Pharmacies of Indiana, Inc. v. Indiana Family & Soc. Servs.
Admin., 801 F. Supp. 2d 802, 803 (S.D. Ind. 2011) (citation omitted). A TRO or a preliminary
injunction may be granted if the movant: (1) has some likelihood of succeeding on the merits;
(2) has no adequate remedy at law; and (3) will suffer irreparable harm if preliminary relief is
denied. Abbott Labs. v. Mead Johnson & Co., 971 F.2d 6, 11 (7th Cir. 1992) (preliminary
injunction standards); see also Planned Parenthood of Wis., Inc. v. Van Hollen, 738 F.3d 786,
795 (7th Cir. 2013). The Seventh Circuit has recognized that the threshold to satisfy the first
element is low. It is enough that the plaintiffs chances are better than negligible[.] Brunswick
Corp. v. Jones, 784 F.2d 271, 275 (7th Cir. 1986) (internal quotations and citations omitted);
accord Michigan v. U.S. Army Corps of Engrs, 667 F.3d 765, 782 (7th Cir. 2011)
(acknowledging the often-repeated rule that the threshold for establishing likelihood of success
is low). If these three elements are met, the court will also consider any irreparable harm to the
non-movant and balance it against the harm to the movant, and will also take into account the
public interest consequences of granting or denying the injunction. See Abbott Labs., 971 F.2d at
12; Planned Parenthood, 738 F.3d at 795.
When considering whether a plaintiff has satisfied her burden, the Seventh Circuit
employs a sliding scale approach, whereby the more likely it is the plaintiff will succeed on
the merits, the less balance of irreparable harms need weigh towards its side; the less likely it is
the plaintiff will succeed, the more the balance need weigh towards its side. Kraft Foods Grp.
Brands LLC v. Cracker Barrel Old Country Store, Inc., 735 F.3d 735, 740 (7th Cir. 2013)
(quotation marks and citations omitted). The irreparable harm the plaintiff will suffer absent an
injunction remains the most important equitable factor to consider. See Reinders Bros., Inc. v.
Rain Bird E. Sales Corp., 627 F.2d 44, 52-53 (7th Cir. 1980).
ARGUMENT
Plaintiffs are entitled to a temporary restraining order and preliminary injunction.
Plaintiffs have a strong likelihood of prevailing on their claim that Indianas marriage ban is
unconstitutional under both the Equal Protection and Due Process Clauses of the Fourteenth
Amendment to the U.S. Constitution. Mayras cancer is rapidly progressing, she has been taken
off chemotherapy, and there is an extraordinarily high probability that she will pass away before
this Court renders a final judgment vindicating her constitutional rights.
Mayra is burdened with the uncertainty of whether Veronica will be taken care of upon
her passing, and, if Mayra were to pass away before a final judgment, she will permanently be
denied the dignity of being recognized as Veronicas wife under Indiana law. (Decl. of Veronica
Romero 23-24.) Veronica, in turn, will likewise suffer irreparable harm absent a temporary
restraining order, because in the event that Mayra dies, Veronica would be denied those rights,
protections, and benefits that she as the surviving spouse would be entitled to if she were married
to a partner of a different sex. (Id.)
Conversely, the State would suffer no harm at all from a TRO being granted at this stage.
The as-applied relief Plaintiffs seek is narrow: Mayra and Veronica ask only that the State
recognize their valid Illinois marriage and treat them like any other married couple. Mayra and
Veronica face an imminent and tragic event, and wish only to have Indianatheir home state
recognize their marriage before Mayras death.
In recognizing Mayras and Veronicas marriage, the States burden would be limited to
performing minor administrative tasks that are no different from those it routinely performs for
different-sex couples originally married in another state. Furthermore, enjoining enforcement of
Indianas unconstitutional marriage ban against Mayra and Veronica can only promote the public
interest, since the public interest is served by vindicating constitutional rights. And since the
relief that Plaintiffs seek is extremely narrow and applicable only to them, any conceivable harm
to the public interest would in any event be greatly outweighed by the devastating harm to
Plaintiffs if their request is denied.
I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR
CLAIMS THAT THE INDIANA MARRIAGE BAN IS UNCONSTITUTIONAL.
When government relegates same-sex couples to second tier status, it violates basic
due process and equal protection principles by demean[ing] the couple and depriving them of
equal dignity under the law. Windsor v. United States, 133 S. Ct. 2675, 2693-95 (2013). As an
ever-increasing number of courts following Windsor have already recognized, state-law bans on
marriage by same-sex couplesmany of which are functionally indistinguishable from Indianas
banviolate both the Equal Protection and Due Process and Clauses of the U.S. Constitution.
1
1
See DeBoer v. Snyder, F. Supp. 2d, 2014 WL 1100794 (E.D. Mich. 2014) (invalidating Michigans marriage
ban); Tanco v. Haslam, F. Supp. 2d, 2014 WL 997525 (M.D. Tenn. 2014) (invalidating Tennessees marriage
ban); De Leon v. Perry, No. SA-13-CA-00982, 2014 WL 715741, at *20 (W.D. Tex. Feb. 26, 2014) (striking down
Texas marriage ban); Lee v. Orr, No. 1:13-cv-08719, 2014 WL 683680 (N.D. Ill. Feb. 21, 2014) (compelling the
Clerk of Cook County, Illinois, to issue marriage licenses to same-sex couples); Bostic v. Rainey, No. 2:13-cv-395,
2014 WL 561978 (E.D. Va. Feb. 13, 2014) (invalidating Virginias marriage ban); Bourke v. Beshear, 2014 WL
556729, at *11-12 (W.D. Ky. Feb. 12, 2014) (invalidating Kentuckys ban on recognition of marriages between
same-sex couples); 961 F. Supp. 2d 1181 (D. Utah 2013) (invalidating Utahs marriage ban); Bishop v. United States
ex rel. Holder, No. 04-cv-848, 2014 WL 116013 (N.D. Okla. Jan. 14, 2014) (invalidating Oklahomas marriage
ban); Griego v. Oliver, 316 P.3d 865, 889 (N.M. 2013) (invalidating New Mexicos marriage ban); Obergefell v.
Wymyslo, 962 F. Supp. 2d 968 (S.D. Ohio 2013) (granting permanent injunction and declaratory judgment
compelling Ohio to recognize valid out-of-state marriages between same-sex couples on Ohio death certificates);
Darby v. Orr, No. 12-CH-19718, slip op. at 9-12 (Ill. Cir. Ct., Cook Cnty. Sept. 27, 2013) (citing Windsor in
Moreover, the Seventh Circuit Court of Appeals recently concluded that "discrimination against
same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not
subjected to heightened scrutiny" Baskin v. Bogan, 14-2386, 2014 WL 4359059, at *8 (7th
Cir. Sept. 4, 2014).
A. Indianas Marriage Ban Violates Equal Protection By Denying Mayra and
Veronica Recognition of Their Existing Illinois Marriage.
The Equal Protection Clause of the Fourteenth Amendment ensures that similarly situated
persons are not treated differently simply because of their membership in a class. See City of
Cleburne, 473 U.S. at 439 (The Equal Protection Clause . . . is essentially a direction that all
persons similarly situated should be treated alike.). If similarly situated persons are treated
differently, the court determines if the classification that singles them out is suspect or quasi-
suspect. Id. at 440-41. The court then applies the appropriate level of scrutiny depending on
the nature of the classification. Id. A classification that singles out a suspect class is reviewed
under strict scrutiny; one that singles out a quasi-suspect class is reviewed under heightened
scrutiny; and a classification that does not single out a suspect or quasi-suspect class is reviewed
for a rational basis. Id.
The States marriage ban is antithetical to the basic principles of the Equal Protection
Clause. It creates a permanent underclass of hundreds of thousands of gay and lesbian Indiana
citizens who are denied the right to marry that is available to heterosexuals simply because of
the public disapproval of their constitutionally-protected sexual identities. Indianas marriage
ban codifies stigmatization and discrimination of lesbians and gay men and relegates them to
second-class status, and cannot be squared with the basic dictates of the Equal Protection Clause.
denying motion to dismiss state court challenge to state marriage ban); Garden State Equality v. Dow, 79 A.3d 1036,
1042-44 (N.J. 2013) (citing Windsor in denying stay pending appeal of judgment declaring state marriage ban
unconstitutional).
1. Mayra and Veronica are similarly situated to heterosexual couples for
purposes of marriage.
Gay and lesbian couples are similarly situated to heterosexual couples in every respect
that is relevant to the purposes of marriage. See Griswold, 381 U.S. at 486 (Marriage is a
coming together for better or for worse, hopefully enduring, and intimate to the degree of being
sacred. It is an association that promotes a way of life, not causes; a harmony in living, not
political faiths; a bilateral loyalty, not commercial or social projects.); Turner, 482 U.S. at 95-
96 (concluding that even where prisoner had no right to conjugal visits and therefore no
possibility of consummating marriage or having children, [m]any important attributes of
marriage remain). Here, Mayra and Veronica are in [a] committed and loving relationship . . .
just like heterosexual couples. Varnum v. Brien, 763 N.W.2d 862, 883-84 (Iowa 2009). Mayra
and Veronica have been a committed couple for the past twenty-seven years, have been married
for six months and likely would have married earlier had Indiana allowed them that opportunity.
2. The marriage ban discriminates on the basis of sexual orientation.
The act of falling in love with a person of the same sex, and the decision to marry and
build a life with that person, are expressions of sexual orientation. The Indiana marriage ban
directly classifies and prescribes distinct treatment on the basis of sexual orientation. See In re
Marriage Cases, 183 P.3d at 440-41. The exclusion is categorical, preventing all lesbian and
gay couples from marrying consistent with their sexual orientation. Where, as here, the statutes
discriminatory effect is more than merely disproportionate in impact, but rather affects
everyone in a class and does not reach anyone outside that class, a showing of discriminatory
intent is not required. See M.L.B. v. S.L.J., 519 U.S. 102, 126-28 (1996).
3. The marriage ban cannot survive rational basis review, let alone
heightened scrutiny.
The Indiana marriage ban is unconstitutional even under rational basis review because it
irrationally deprives gay and lesbian individuals of the right to marry. Rational basis review
does not mean no review at all. Government action that discriminates against a class of citizens
must bear[] a rational relation to some legitimate end. Romer v. Evans, 517 U.S. 620, 631
(1996) . And even under rational basis review, the court must insist on knowing the relation
between the classification adopted and the object to be obtained. Id. at 632. In addition, even
when the government offers an ostensibly legitimate purpose, the court must also examine the
statutes connection to that purpose to assess whether it is too attenuated to rationally advance
the asserted governmental interest. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432,
446 (1985); see, e.g., United States Dept of Agric. v. Moreno, 413 U.S. 528, 535-36 (1973);
Eisenstadt v. Baird, 405 U.S. 438, 448-49 (1972).
By requiring that classifications be justified by an independent and legitimate purpose,
the Equal Protection Clause prohibits classifications from being drawn for the purpose of
disadvantaging the group burdened by the law. Romer, 517 U.S. at 633; see also Windsor, 133
S. Ct. at 2693; Cleburne, 473 U.S. at 450; Moreno, 413 U.S. at 534. The Supreme Court
invoked this principle most recently in Windsor when it held that the principal provision of
DOMA violated equal protection principles because the purpose and practical effect of the
law . . . [was] to impose a disadvantage, a separate status, and a stigma upon all who enter into
same-sex marriages. 133 S. Ct. at 2693. The Court found that DOMA was not sufficiently
connected to a legitimate governmental purpose because its interference with the equal dignity
of same-sex marriages . . . was more than an incidental effect of the federal statute. It was its
essence. Id. The Supreme Court has sometimes described this impermissible purpose as
animus or a bare . . . desire to harm a politically unpopular group. Id.; see also Romer, 517
U.S. at 633; Cleburne, 473 U.S. at 447; Moreno, 413 U.S. at 534. But an impermissible motive
does not always require malicious ill will. Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S.
356, 374 (2001) (Kennedy, J., concurring). It can also take the form of negative attitudes,
Cleburne, 473 U.S. at 448, fear, id., irrational prejudice, id. at 450, or some instinctive
mechanism to guard against people who appear to be different in some respects from ourselves,
Garrett, 531 U.S. at 374 (Kennedy, J., concurring).
2
Indianas marriage ban shares all the hallmarks of discrimination, and none of the
rationales for the marriage ban that Defendants are likely to proffer can withstand constitutional
review. When there is no justification for government's treating a traditionally discriminated-
against group significantly worse than the dominant group in the society, doing so denies equal
protection of the law." Baskin, 2014 WL 4359059, at *24. Thus, even under a rational basis
review, Plaintiffs are likely to succeed on the merits of their claim that the Indiana marriage ban
bears no rational relationship to a legitimate government purpose, just as numerous other federal
courts recently have concluded. Id., at * 25; see also De Leon, 2014 WL 715741, at *17; Bostic,
2014 WL 561978, at *22; DeBoer v. Snyder, F. Supp. 2d, 2014 WL 1100794, at *11 (E.D.
Mich. 2014); Bourke v. Beshear, 2014 WL 556729, at *8 (W.D. Ky. Feb. 12, 2014); Bishop v.
U.S. ex rel. Holder, 2014 WL 116013, at *33 (N.D. Okla. Jan. 14, 2014); Kitchen, 2013 WL
6697874, at *25; Perry, 704 F. Supp. 2d at 997.
2
In determining whether a law is based on such an impermissible purpose, the Court has looked to a variety of
direct and circumstantial evidence, including the text of a statute and its obvious practical effects (see, e.g., Windsor,
133 S. Ct. at 2693; Romer, 517 U.S. at 633; Village of Arlington Heights v. Metro Housing Dev. Corp., 429 U.S.
252, 266-68 (1977)), statements by legislators during floor debates or committee reports (see, e.g., Windsor, 133 S.
Ct. at 2693; Moreno, 413 U.S. at 534-35), the historical background of the challenged statute (see, e.g., Windsor,
133 S. Ct. at 2693; Arlington Heights, 429 U.S. at 266-68), and a history of discrimination by the relevant
governmental entity (see, e.g., Arlington Heights, 429 U.S. at 266-68). Finally, even without direct evidence of
discriminatory intent, the absence of any logical connection to a legitimate purpose can lead to an inference of an
impermissible intent to discriminate. See Romer, 517 U.S. at 632; Cleburne, 473 U.S. at 448-50.
a. There is no rational relationship between the marriage ban and
any asserted interest related to procreation or the promotion of
optimal parenting.
There is no rational connection between Indianas marriage ban and any asserted state
interest in encouraging heterosexual couples to procreate responsibly within marriage, or in
encouraging child-rearing by supposedly optimal parents. Indiana law does not condition
persons right to marry on their abilities or intentions to have or rear children, but permits those
who are sterile and the elderly, or simply uninterested in childbearing to marry. See Lawrence,
539 U.S. at 605 (Scalia, J., dissenting); De Leon, 2014 WL 715741, at *15 ([P]rocreation is not
and has never been a qualification for marriage.). Indeed, Indiana permits marriage of first
cousins "only after they are provably infertile." Baskin, 2014 WL 4359059, at *18.
Same-sex couples can no more harm procreative imperatives of marriage than marriages
of couples who cannot naturally procreate or do not ever wish to naturally procreate. Bishop,
2014 WL 116013, at *29. Nor does denying marriage to same-sex couples increase the number
of children raised by married different-sex biological parents; indeed, any asserted connection
between the marriage ban and the marital or procreative decisions of heterosexual couples defies
logic. See De Leon, 2014 WL 715741, at *16; Kitchen, 2013 WL 6697874, at *25, *27, Windsor
v. United States, 699 F.3d 169, 188; Varnum, 763 N.W.2d at 901.
The only effect that Indianas marriage ban has on childrens well-being is that it harms
the children of same-sex couplessuch as B.Y.R. and I.R.who are denied the protection and
legitimacy of having married parents. Baskin, 2014 WL 4359059, at *12-13; DeBoer, 2014 WL
1100794, at *5; Bishop, 2014 WL 116013, at *31; Kitchen, 2013 WL 6697874, at *26; Gill v.
Office of Pers. Mgmt., 699 F. Supp. 2d 374, 378 (D. Mass. 2010). Like the statute invalidated in
Windsor, Indianas marriage ban serves only to humiliate the children now being raised by
same-sex couples and make[] it even more difficult for the children to understand the integrity
and closeness of their own family and its concord with other families in their community and in
their daily lives. Windsor, 133 S. Ct. at 2694. Excluding same-sex couples from civil
marriage will not make children of opposite-sex marriages more secure, but it does prevent
children of same-sex couples from enjoying the immeasurable advantages that flow from the
assurance of a stable family structure in which children will be reared, educated, and socialized.
Goodridge, 798 N.E.2d at 964 (internal quotation marks and citation omitted).
Lesbian and gay couples have children through assisted reproduction and through
adoption, and the government has just as strong an interest in encouraging such procreation and
child-rearing in these families to take place in the context of marriage. See DeBoer, 2014 WL
1100794, at *12-13; Kitchen, 2013 WL 6697874, at *26; Varnum, 763 N.W.2d at 902; In re
Marriage Cases, 183 P.3d at 433. [T]he argument that allowing same-sex couples to marry will
undermine procreation is nothing more than an unsupported overbroad generalization that
cannot be a basis for upholding discriminatory legislation. De Leon, 2014 WL 715741, at *16.
Opponents of marriage for same-sex couples also sometimes argue that excluding same-
sex couples from marriage serves the purpose of promoting the ideal that children will be reared
by optimal parents, which they characterize as married, biological, different-sex parents. See
Kitchen, 2013 WL 6697874, at *25-26. But there is no link between the marriage ban and
encouragement of procreation by anyone. And the overwhelming scientific consensus, based on
decades of peer-reviewed scientific research, in any event shows unequivocally that children
raised by same-sex couples are just as well-adjusted as those raised by heterosexual couples.
DeBoer, 2014 WL 1100794 at *12 (finding that testimony adduced at trial overwhelmingly
supported finding that there are no differences between the children of same-sex couples and the
children of different-sex couples).
3
As court after court has recognized, it is accepted beyond
serious debate that children are raised just as optimally by same-sex couples as they are by
different-sex couples. See, e.g., De Leon, 2014 WL 715741, at *20; Bostic, 2014 WL 561978, at
*12 (E.D. Va. Feb. 13, 2014); Perry, 704 F. Supp. 2d at 980.
4
There is simply no rational connection between the marriage ban and the asserted
governmental interest in optimal parenting. Children being raised by different-sex couples are
unaffected by whether same-sex couples can marry, and children raised by same-sex couples will
not end up being raised by different-sex couples because their current parents cannot marry. See
Golinski, 824 F. Supp. 2d at 997; accord Windsor, 699 F.3d at 188; Pedersen, 881 F. Supp. 2d at
340-41; Varnum, 763 N.W.2d at 901.
b. The marriage ban cannot be justified by an asserted interest in
maintaining a traditional definition of marriage.
To survive constitutional scrutiny, the marriage ban must be justified by some legitimate
state interest other than simply maintaining a traditional definition of marriage. Ancient
lineage of a legal concept does not give it immunity from attack for lacking a rational basis.
Heller v. Doe, 509 U.S. 312, 326-27 (1993); see also Williams v. Illinois, 399 U.S. 235, 239
(1970) ([N]either the antiquity of a practice nor the fact of steadfast legislative and judicial
adherence to it through the centuries insulates it from constitutional attack.). [T]imes can blind
3
This consensus has been recognized in formal policy statements and organizational publications by every major
professional organization dedicated to childrens health and welfare, including the American Academy of Pediatrics,
American Academy of Child and Adolescent Psychiatry, the American Psychiatric Association, the American
Psychological Association, the American Psychoanalytic Association, and the Child Welfare League of America.
See United States v. Windsor, No. 12-307, Brief of the American Psychological Association et al. as Amici Curiae
on the Merits in Support of Affirmance, 2013 WL 871958, at *14-26 (Mar. 1, 2013) (discussing this scientific
consensus); Hollingsworth v. Perry, No. 12-144, and United States v. Windsor, No. 12-307, Brief of the American
Sociological Assn in Support of Respondent Kristin M. Perry and Respondent Edith Schlain Windsor, 2013 WL
840004, at *6-14 (Feb. 28, 2013).
4
See also Golinski, 824 F. Supp. 2d at 991; Howard v. Child Welfare Agency Rev. Bd., Nos. 1999-9881, 2004 WL
3154530, at *9 and 2004 WL 3200916, at *3-4 (Ark. Cir. Ct. Dec. 29, 2004), In re Adoption of Doe, 2008 WL
5006172, at *20 (Fla. Cir. Ct. Nov 25, 2008), Varnum, 763 N.W.2d at 899 n.26.
us to certain truths and later generations can see that laws once thought necessary and proper in
fact serve only to oppress. Lawrence, 539 U.S. at 579.
With respect to law prohibiting same-sex couples from marriage, the justification of
tradition does not explain the classification; it merely repeats it. Simply put, a history or
tradition of discriminationno matter how entrencheddoes not make the discrimination
constitutional. Kerrigan, 957 A.2d at 478; accord Goodridge, 798 N.E.2d at 961 n.23; Varnum,
763 N.W.2d at 898; see also Golinski, 824 F. Supp. 2d at 993. Ultimately, preserving the
traditional institution of marriage is just a kinder way of describing the [s]tates moral
disapproval of same-sex couples, Lawrence, 539 U.S. at 601 (Scalia, J., dissenting) (emphasis
in original), which is not a rational basis for perpetuating discrimination. See Windsor, 133 S.
Ct. at 2692; Romer, 517 U.S. at 633; Cleburne, 473 U.S. at 450; Moreno, 413 U.S. at 534.
c. No legitimate interest overcomes the primary purpose and
practical effect of the marriage banwhich is to disparage and
demean same-sex couples and their families.
The Supreme Court in Windsor recently reaffirmed that when the primary purpose and
effect of a law is to harm an identifiable group, the law is unconstitutional regardless of whether
the law may also incidentally serve some other neutral governmental interest. Because [t]he
principal purpose [of DOMA was] to impose inequality, not for other reasons like governmental
efficiency, the government could not articulate a legitimate purpose that could overcome[] the
purpose and effect to disparage and injure same-sex couples and their families. 133 S.Ct. at
2694, 2696.
The inescapable practical effect of Indianas marriage ban is to impose a
disadvantage, a separate status, and so a stigma upon same-sex couples in the eyes of the state
and the broader community. Id. at 2693. The ban diminishes the stability and predictability of
basic personal relations of gay people and demeans the couple, whose moral and sexual
choices the Constitution protects. Id. at 2694 (citing Lawrence, 539 U.S. 558). Thus, even if
there were a rational connection between the ban and a legitimate purpose (and there is not), that
connection could not overcome[] the purpose and effect to disparage and to injure same-sex
couples and their families. Windsor, 133 S. Ct. at 2696.
The Indiana General Assembly passed the marriage ban in 1997. Tellingly, that ban
mirrored DOMA in its design, purpose, and effect. The marriage bans sole purpose was to
target same-sex couples and exclude them from marriage. The bans effect is sweepingly broad
touching numerous diverse aspects of everyday life in a single stroke. The legislature enacted
the marriage ban for no reason other than to ensure that homosexual Hoosiers could not wed.
5
The Indiana General Assemblys animus-driven motiveto fence lesbian and gay Indiana
residents and their children out of marriageis impermissible under the Equal Protection
Clause.
4. Heightened scrutiny applies because the marriage ban discriminates
on the basis of sexual orientation.
Because Indianas marriage ban classifies citizens on the basis of sexual orientation,
heightened scrutiny should apply. See SmithKline Beecham Corp. v. Abbott Laboratories, 740
F.3d 471, 483-84 (9th Cir. 2014) (holding that sexual orientation is a suspect classification). In
the past, the Seventh Circuit has applied rational basis review to discrimination based on sexual
orientation. See, e.g., Schroeder v. Hamilton Sch. Dist., 282 F.3d 946, 950-51 (7th Cir. 2002)
(citing cases, including Bowers v. Hardwick, 478 U.S. 186 (1986), overruled by Lawrence, 539
5
David J. Bodenhamer & Randall T. Shepard, The Narratives and Counternarratives of Indiana Legal History, in
THE HISTORY OF INDIANA LAW 3, at p. 80 (2006); available at
http://books.google.com/books?id=7l_50bq5ZJMC&pg=PP8&lpg=PP8&dq=David+J.+Bodenhamer+%26+Randall
+T.+Shepard,+The+Narratives+and+Counternarratives+of+Indiana+Legal+History,+in+THE+HISTORY+OF+IND
IANA+LAW+3+(David+J.&source=bl&ots=Amhs2muh6V&sig=ksh70PWPh7VZ3xsqJQz9LhE6WNg&hl=en&sa
=X&ei=dPI1U8LsKfO02wXljIGAAg&ved=0CDEQ6AEwAg#v=onepage&q=homosexual%20hoosier&f=false.
(last visited March 28, 2014).
U.S. 558). But Lawrence and Windsor have called into question precedent like Schroeder. See
SmithKline, 740 F.3d at 784 (noting that Windsor requires that we reexamine our prior
precedents, and concluding that we are required by Windsor to apply heightened scrutiny to
classifications based on sexual orientation).
6
Because the Seventh Circuits most recent
application of the four-factor analysis of whether heightened scrutiny should apply to sexual
orientation classifications predates Lawrence, see Ben-Shalom v. Marsh, 881 F.2d 454, 464-66
(7th Cir. 1989) (relying on Bowers), this Court should revisit this question anew.
Lower courts without controlling post-Lawrence precedent on the issue must apply the
following criteria to determine whether sexual orientation classifications should receive
heightened scrutiny: (1) whether the class has been historically subjected to discrimination;
(2) whether the class has a defining characteristic that frequently bears [a] relation to ability to
perform or contribute to society; (3) whether the class exhibits obvious, immutable, or
distinguishing characteristics that define them as a discrete group; and (4) whether the class is
a minority or politically powerless. Windsor v. United States, 699 F.3d 169, 181 (2d Cir.
2012) (quotations and citations omitted), affd 133 S. Ct. 2675 (2013). The first two factors are
the most important. See id. (Immutability and lack of political power are not strictly necessary
factors to identify a suspect class.); accord Golinski, 824 F. Supp. 2d at 987. As a number of
federal and state courts have recently recognized, faithful application of these factors leads to the
inescapable conclusion that sexual orientation classifications must be recognized as suspect or
quasi-suspect and subjected to heightened scrutiny. See, e.g., Windsor, 699 F.3d at 181-85;
6
See also Pedersen v. Office of Pers. Mgmt., 881 F. Supp. 2d 294, 312 (D. Conn. 2012) (The Supreme Courts
holding in Lawrence remov[ed] the precedential underpinnings of the federal case law supporting the defendants
claim that gay persons are not a [suspect or] quasi-suspect class. (citations omitted)); Golinski v. U.S. Office of
Pers. Mgmt., 824 F. Supp. 2d 968, 984 (N.D. Cal. 2012) ([T]he reasoning in [prior circuit court decisions], that
laws discriminating against gay men and lesbians are not entitled to heightened scrutiny because homosexual
conduct may be legitimately criminalized, cannot stand post-Lawrence.).
Golinski, 824 F. Supp. 2d at 985-90; Pedersen, 881 F. Supp. 2d at 310-33; Perry, 704 F. Supp.
2d at 997; In re Balas, 449 B.Y.R. 567, 573-75 (Bankr. C.D. Cal. 2011) (decision of twenty
bankruptcy judges); Varnum, 763 N.W.2d at 885-96; In re Marriage Cases, 183 P.3d at 441-44;
Kerrigan v. Commr of Pub. Health, 957 A.2d 407, 425-31 (Conn. 2008). This Court should do
likewise.
5. Heightened scrutiny applies because the marriage ban also
discriminates on the basis of sex.
Indianas marriage ban should also be subject to heightened scrutiny because it
classifies Indiana citizens on the basis of sex. Indiana denies respect to Veronicas marriage to
Mayra because Veronica is a woman; if Veronica were a man, Indiana would recognize them as
married. Classifications based on sex can be sustained only where the government demonstrates
that they are substantially related to an important governmental objective. U.S. v. Virginia,
518 U.S. 515, 533 (1996) (internal quotation marks omitted); Illinois v. U.S. Dept of Health &
Human Servs., 682 F.3d 1, 9 (1st Cir. 2012) (Gender-based classifications invoke intermediate
scrutiny and must be substantially related to achieving an important governmental objective.).
7
The ban also discriminates based on sex by impermissibly enforcing conformity with sex
stereotypes, requiring men and women to adhere to traditional marital roles as a condition of
recognizing their out-of-state marriage as valid. The Supreme Court has found this type of
statutory sex stereotyping constitutionally impermissible. See, e.g., Virginia, 518 U.S. at 533
7
Indianas marriage ban is no less invidious because it equally denies men and women the right to marry a same-
sex life partner. Loving discarded the notion that the mere equal application of a statute containing racial
classifications is enough to remove the classifications from the Fourteenth Amendments proscription of all
invidious racial discriminations. 388 U.S. at 8; see also McLaughlin v. Florida, 379 U.S. 184, 191 (1964) (equal
protection analysis does not end with a showing of equal application among the members of the class defined by
the legislation); J.E.B. v. Ala. ex rel. T.B., 511 U.S. 127 (1994) (government may not strike jurors based on sex,
even though such a practice, as a whole, does not favor one sex over the other). Nor was the context of race central
to Lovings holding, which expressly found that, even if race discrimination had not been at play and the Court
presumed an even-handed state purpose to protect the integrity of all races, Virginias anti-miscegenation statute
still was repugnant to the Fourteenth Amendment. 388 U.S. at 12 n.11.
(concluding that justifications for gender classifications must not rely on overbroad
generalizations about the different talents, capacities, or preferences of males and females);
Califano v. Webster, 430 U.S. 313, 317 (1977); Miss. Univ. for Women v. Hogan, 458 U.S. 718,
724-25 (1982).
The Equal Protection Clause prohibits such differential treatment or denial of
opportunity based on a persons sex in the absence of an exceedingly persuasive justification.
Virginia, 518 U.S. at 532-33 (internal quotation marks omitted). The State can offer none.
B. By Denying Mayra and Veronica the Right to Have Their Existing Illinois
Marriage Recognized, Indianas Marriage Ban Violates Due Process.
The Due Process Clause of the Fourteenth Amendment to the United States Constitution
provides that no State [shall] deprive any person of life, liberty, or property, without due
process of law. U.S. Const. Amend. XIV, 1. The guarantee of due process protects
individuals from arbitrary governmental intrusion into fundamental rights. See, e.g., Washington
v. Glucksberg, 521 U.S. 702, 719-20 (1997). Under the Due Process Clause, when legislation
burdens the exercise of a fundamental right, the government must show that the intrusion is
supported by sufficiently important state interests and is closely tailored to effectuate only those
interests. Zablocki v. Redhail, 434 U.S. 374, 388 (1978).
In evaluating whether a law violates the Due Process Clause, courts first determine
whether the right infringed is fundamental, and if so, closely scrutinize the law to determine if
it is narrowly tailored to serve a compelling government interest. Id. The Indiana marriage ban
deprives Mayra and Veronica of their fundamental right to be married in Indiana, thereby
triggering heightened scrutiny. But the Indiana marriage ban does not even survive rational basis
reviewlet alone any heightened scrutiny.
1. The Indiana marriage ban infringes Mayra and Veronicas
fundamental right to marry.
The right to marry has long been recognized as one of the most important rights of any
personone of the basic civil rights of man, fundamental to our very existence and survival.
Loving v. Virginia, 388 U.S. 1, 12 (1967) (citation and internal quotation marks omitted). It is
unquestionably a fundamental right protected by Due Process guarantees. See, e.g., Webster v.
Reproductive Health Servs., 492 U.S. 490, 564-65 (1989) ([F]reedom of personal choice in
matters of marriage and family life is one of the liberties protected by the Due Process of the
Fourteenth Amendment.); Turner v. Safley, 482 U.S. 78, 95-96 (1987) (same); Moore v. City of
East Cleveland, 431 U.S. 494, 499 (1977) (same). Indeed, marriage is intimate to the degree of
being sacred. Griswold v. Connecticut, 381 U.S. 479, 486 (1965). The long line of decisions
recognizing the significance ofand the protections accorded tomarital relationships would be
meaningless if states could unilaterally refuse to recognize the marriages of disfavored groups,
thereby depriving these spouses of their constitutional rights.
As the Supreme Court has recently recognized in Windsor (and lower courts have since
repeatedly reaffirmed), this fundamental right is not limited to different-sex couples. In ruling
that the federal government must provide marital benefits to married same-sex couples, and that
married lesbian and gay persons and their children are entitled to equal dignity and equal
treatment by their federal government, the Court acknowledged that marriage is not inherently
defined by the sex or sexual orientation of the couples. To the contrary, marriage permits same-
sex couples to define themselves by their commitment to each other and to live with pride in
themselves and their union and in a status of equality with all other married persons. Windsor,
133 S. Ct. at 2689. It is thus unconstitutional to deprive some couples . . . but not other couples,
of [the] rights and responsibilities [of marriage]. Id. at 2694. The right that Mayra and
Veronica seek to vindicate by moving for this order is simply the same right that is currently
enjoyed by heterosexual individualsnamely, their right to marry and to remain married once
they return to their home state. See Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1202-03 (D. Utah
2013) (emphasis added).
8
There is nothing novel about the principle that couples have fundamental vested rights to
have their marriages accorded legal recognition by the State. Indeed, in Loving v. Virginia, the
Supreme Court struck down not only Virginias law prohibiting interracial marriages within the
state, but also its statutes that denied recognition to and criminally punished such marriages
entered into outside the state. 388 U.S. at 4. Significantly, the Court held that Virginias
statutory schemeincluding the penalties on out-of-state marriages and its voiding of marriages
obtained elsewheredeprive[d] the Lovings of liberty without due process of law in violation
of the Due Process Clause of the Fourteenth Amendment. Id. at 12; see also Zablocki, 434 U.S.
at 397 n.1 (1978) ([T]here is a sphere of privacy or autonomy surrounding an existing marital
relationship into which the State may not lightly intrude. . . .) (emphasis added) (Powell, J.,
concurring).
9
8
Accord, e.g., Bostic v. Rainey, No. 2:13-cv-395, 2014 WL 561978, at *12 (E.D. Va. Feb. 13, 2014) (Plaintiffs ask
for nothing more than to exercise a right that is enjoyed by the vast majority of [the states] citizens.); Perry v.
Schwarzenegger, 704 F. Supp. 2d 921, 993 (N.D. Cal. 2010) (Plaintiffs do not seek recognition of a new
right. [ . . . ] Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.).
9
The expectation that a marriage, once entered into, will be respected throughout the land is deeply rooted in [o]ur
Nations history, legal traditions, and practices. Glucksberg, 521 U.S. at 721. As one federal court put it sixty-five
years ago, the policy of the civilized world [] is to sustain marriages, not to upset them. Madewell v. United
States, 84 F. Supp. 329, 332 (E.D. Tenn. 1949). Historically, certainty that a marital status once obtained will be
universally recognized has been understood to be of fundamental importance both to the individual and to society
more broadly: for the peace of the world, for the prosperity of its respective communities, for the well-being of
families, for virtue in social life, for good morals, for religion, for everything held dear by the race of man in
common, it is necessary there should be one universal rule whereby to determine whether parties are to be regarded
as married or not. 1 Joel Prentiss Bishop, New Commentaries on Marriage, Divorce, and Separation 856, at 369
(1891).
Accordingly, interstate recognition of marriage has been a defining and essential feature of American law. The
longstanding, universal rule of marriage recognition dictates that a marriage valid where celebrated is valid
everywhere. See, e.g., Joseph Story, Commentaries on the Conflict of Laws 113, at 187 (8th ed. 1883) (The
general principle certainly is . . . that . . . marriage is decided by the law of the place where it is celebrated.); In re
Under Illinois law and the laws of 18 other states and the District of Columbia, Plaintiffs
are married.
10
As Windsor held, the denial of respect and recognition to same-sex couples valid
marriages deprives these couples of equal dignity. 133 S. Ct. at 2693. Applying these basic
principles of equal dignity, court after court has recently struck down state laws that purport to
bar same-sex couples from marryingreaffirming that whether gay, lesbian, or heterosexual, all
persons are guaranteed the fundamental right of marriage.
11
And since the Supreme Courts
decision in Windsor, not one court to have faced these issues has found marriage bans to
withstand constitutional scrutiny.
Indianas withholding of this fundamental right from Mayra and Veronica denies them
many of the legal, social, and financial benefits enjoyed by different-sex couples. Because
Indianas law significantly interferes with the exercise of a fundamental right of marriage, it
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. But Defendants cannot
articulate any legitimate interestlet alone a substantial onefor denying individuals of the
same sex the right to marry. As a result, the Indiana marriage ban violates Mayra and Veronicas
Lenherr Estate, 314 A.2d 255, 258 (Pa. 1974) (In an age of widespread travel and ease of mobility, it would create
inordinate confusion and defy the reasonable expectations of citizens whose marriage is valid in one state to hold
that marriage invalid elsewhere.).
10
California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New
Hampshire, New Jersey, New Mexico, New York, Pennsylvania, Rhode Island, Vermont, Washington, and the
District of Columbia all allow same-sex couples to marry.
11
See supra n.1 (collecting cases); see also Kitchen v. Herbert, No. 2:13-cv-217, 2013 WL 6697874, at *18 (D.
Utah Dec. 20, 2013) (holding that lesbian and gay couples have a fundamental right to marry that protects their
choice of a same-sex partner); Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 991 (N.D. Cal. 2010) (striking down
California marriage ban and holding that [t]he freedom to marry is recognized as a fundamental right protected by
the Due Process Clause); In re Marriage Cases, 183 P.3d 384, 433-34 (Cal. 2008) (the right to marry, as
embodied in [the due process clause] of the California Constitution, guarantees same-sex couples the same
substantive constitutional rights as opposite-sex couples to choose ones life partner and enter with that person into a
committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based
incidents of marriage); Goodridge v. Dept of Public Health, 798 N.E.2d 941, 957 (Mass. 2003) (Because civil
marriage is central to the lives of individuals and the welfare of the community, our laws assiduously protect the
individuals right to marry against undue government incursion. Laws may not interfere directly and substantially
with the right to marry. (quoting Zablocki, 434 U.S. at 387)).
Due Process rights for the same reasons that it violates their Equal Protection rights (described
below). See, e.g., Loving, 388 U.S. at 12 (striking down anti-miscegenation law on both equal
protection and due process grounds). Indeed, far from withstanding the rigorous test of strict
scrutiny, Indianas marriage ban cannot satisfy even rational basis review. Baskin, 2014 WL
4359059, at *25).
2. The Indiana marriage ban deprives Mayra and Veronica of a
protected liberty interest in their existing Illinois marriage.
Indiana has long followed the general rule that [t]he validity of a marriage depends upon
the law of the place where it occurs. Bolkovac v. State, 98 N.E.2d 250, 304 (Ind. 1951). As a
corollary, Indiana will accept as legitimate a marriage validly contracted in the place where it is
celebrated. Mason v. Mason, 775 N.E.2d 706, 709 (Ind. Ct. App. 2002). Indiana has therefore
honored marriages that were valid in other jurisdictions even if that couple could not meet
Indianas own marriage requirements. See id. (affirming trial court recognizing as a matter of
comity the marriage of a Tennessee couple who were first cousins, even though such a marriage
could not be validly contracted between residents of Indiana.).
Indiana Code Section 31-11-1-1(b)under which [a] marriage between persons of the
same gender is void in Indiana even if the marriage is lawful in the place where it is
solemnizedis a marked departure from this long-standing rule, and is constitutionally
impermissible. In Windsor, the Supreme Court held that same-sex spouses who have entered
into valid marriages have a constitutionally-protected interest in their marital status, and that the
federal governments categorical refusal to recognize the valid marriages of same-sex couples
was unconstitutional as a deprivation of the liberty of the person protected by the Fifth
Amendment of the Constitution. 133 S. Ct. at 2695.
Here, Mayra and Veronica entered into a valid marriage in Illinois in 2014. But like
Section Three of the federal Defense of Marriage Act (DOMA)which the Supreme Court
struck down in WindsorIndianas law treats Mayra and Veronicas Illinois marriage as if it
never existed. In doing so, the State denies their marriage recognition for all purposes under
state law, just as DOMA did under federal law. And as with DOMA, the injury that the Indiana
ban inflicts on Plaintiffs is a deprivation of an essential part of the liberty protected by the
[Constitutions due process guarantee]. Id. at 2692.
Like DOMA, Indianas marriage ban is an unusual deviation from the usual tradition of
recognizing and accepting state definitions of marriage, which hereas in Windsoroperates
to deprive same-sex couples of the benefits and responsibilities that come with legal recognition
of their marriage. Id. at 2693. Indianas refusal to recognize Mayra and Veronicas marriage
threatens to imminently and irreparably undermine their union, as Mayra may succumb to her
Stage IV ovarian cancer in the coming weeks or months. Indianas refusal exposes Mayra and
Veronica to an alarming array of legal vulnerabilities and harms, from the mundane to the
profound. Id. at 2694. As with DOMA, the purpose and effect of the Indiana marriage ban is to
treat same-sex relationships unequally by excluding persons who are in a lawful same-sex
marriage, like Mayra and Veronica, from the same protections afforded heterosexual married
personsin violation of the Due Process guarantee of the United States Constitution. Id.
II. PLAINTIFFS HAVE NO ADEQUATE REMEDY AT LAW AND ARE HIGHLY
LIKELY TO SUFFER IRREPARABLE HARM.
Should Mayra pass away before this Court can rule on the constitutionality of the
marriage ban, Indianas refusal to recognize their marriage will be irrevocable. Mayra will be
fully and finally denied the dignity of having her marriage to her loving partner of twenty-seven
years recognized by her home State. Mayra would also die burdened by the knowledge that
Veronica will be treated as a stranger to her in Indiana, and that both Veronica and their children
will be denied important benefits to which the family is entitled upon her Mayras death.
Indianas refusal to recognize Mayra and Veronicas legitimate marriage violates their
constitutional rightswhich, without more, establishes irreparable harm as a matter of law. See,
e.g., Preston v. Thompson, 589 F.2d 300, 303 (7th Cir. 1978) (The existence of a continuing
constitutional violation constitutes proof of an irreparable harm[.]); Young v. Ballis, 762 F.
Supp. 823, 827 (S.D. Ind. 1990) (Threat of continued violation of ones constitutional rights is
proof of irreparable harm.) (citation omitted); Does v. City of Indianapolis, 2006 WL 2927598,
at *11 (S.D. Ind. Oct. 5, 2006) (quoting Cohen v. Cohama County, Miss., 805 F. Supp. 398, 406
(N.D. Miss. 1992) for the proposition that [i]t has repeatedly been recognized by the federal
courts at all levels that violation of constitutional rights constitutes irreparable harm as a matter
of law.) (Young, J.).
In addition to the presumptive harm that flows from these constitutional deprivations, the
harm that Mayra and Veronica will suffer if a temporary restraining order is not issued will be
irreparable and overwhelming. A marriage is a far-reaching legal acknowledgement of the
intimate relationship between two people, and the State inflicts grave dignitary harm when its
law announces that Mayra and Veronicas relationship is not deemed by the State worthy of
dignity in the community equal with all other marriages. Windsor, 133 S. Ct. 2675, 2692; see
also Gray v. Orr, 2013 WL 6355918, at *4 (N.D. Ill. Dec. 5, 2013) (granting a temporary
restraining order and declaratory relief to allow a terminally ill woman to wed her longtime
partner even though Illinois banned such marriages, and opining Equally, if not more,
compelling is Plaintiffs argument that without [injunctive relief], they will be deprived of
enjoying the less tangible but nonetheless significant personal and emotional benefits that the
dignity of official marriage status confers.). By denying recognition to Veronica and Mayras
marriage, Indiana demeans them and humiliates their childrenB.Y.R. and I.R.making it
even more difficult for the children to understand the integrity and closeness of their own
family and its concord with other families in their community and in their daily lives. See
Windsor, 133 S.Ct. at 2694; see also Tanco v. Haslam, 2014 WL 997525, at *7 (M.D. Tenn.
Mar. 14, 2014) (The states refusal to recognize the plaintiffs marriages de-legitimizes their
relationships, degrades them in their interactions with the state, causes them to suffer public
indignity, and invites public and private discrimination and stigmatization.)
The pain and indignity that Veronica and Mayra feel when contemplating the (current)
reality that Mayra will die a legal stranger to Veronica in the eyes of the State are especially
significant in light of the death certificate that the State would issue after Mayras death. As the
court in Obergefell v. Kasich concluded, a states refusal to respect the valid out-of-state
marriage of a same-sex couple when issuing a death certificate to the surviving spouse causes
irreparable harm that warrants preliminary relief. No. 1:13-cv-501, 2013 WL 3814262, at *7
(S.D. Ohio July 22, 2013). The court recognized that without injunctive relief, the official
record of Mr. Arthurs death, and the last official document recording his existence on earth, will
incorrectly classify him as unmarried, despite his legal marriage to Mr. Obergefell. Id.
The same situation threatens to occur here. Without injunctive relief, Indiana will deny
on Mayras death certificate that her marriage to Veronica ever existed. Mayra will die
incorrectly classif[ied] as unmarried, despite [her] legal marriage to Veronica. Id. Veronicas
and Mayras daughters will be denied an official document reflecting their deceased mother as
married to their surviving parent. Obergefell acknowledged the extreme emotional hardship
that the uncertainty engendered by the marriage ban will have on both partners during this trying
time. Id. And while a later ruling from this Court may allow the surviving spouse to amend the
death certificate, that would not ameliorate the emotional hardship suffered by the decedent. Id.
(a later decision cannot remediate the harm to Mr. Arthur, as he will have passed away.). The
only way to avoid this irreparable harm is for this Court immediately to provide Mayra the peace
of mind that can only come with the assurance that her valid marriage to her loving spouse,
Veronica, will be recognized by the State of their residence after her death, and that Veronica
will be entitled to all the attendant survivor rights and benefits of their marriage.
Beyond dignitary harms, Indianas marriage ban is a source of practical and financial
hardship for Mayra and Veronica. Mayra and Veronica fear that they will not be recognized as a
family, together with their children, in medical settings. As Mayras health has declined, Mayra
and Veronica have grown increasingly worried that their family will be denied respect, and
perhaps even kept apart and denied the ability to support each other in medical settings,
including in an emergency.
Upon Mayras death, Veronica will sustain even more hardships due to the marriage ban.
When an Indiana resident dies, the death certificate reflects her marital statusand, if married,
the identity of her spouse.
12
Veronica will face practical challenges because Mayras death
certificate will list her as unmarried. A death certificate often is necessary for a surviving spouse
to apply for insurance or other benefits, settle claims and access assets, transfer title of real and
personal property, and provide legal evidence of the fact of a family members death.
13
In
addition to the pain of having her grief loss denied by her government in the official record that
acknowledges her wifes death, Veronica thus may have difficulties in settling Mayras affairs
12
See Indiana State Department of Health, Certificate of Death, State Form 10110 (R7/9-07), available at
http://www.in.gov/isdh/files/Death_Certificate_TEMPLATE_07132009.doc.
13
National Center for Health Statistics, Report of the Panel to Evaluate the U.S. Standard Certificates (April 2000)
at 119, available at http://www.cdc.gov/nchs/data/dvs/panelreport_acc.pdf.
and making funeral arrangements. Veronica also may face significant challenges when applying
for Social Security survivor benefits. First, the Social Security Administration requires proof of
death, either from a death certificate or funeral home.
14
That Mayras death certificate will list
her as Never Married will interfere with Veronicas ability to apply for benefits as a surviving
spouse. Second, because, under a federal regulation, the Social Security Administration defers to
a couples state of residence (and not the state of celebration of the couples marriage) when
determining whether an individual is a qualified spouse, Veronica may be denied benefits
altogether even if she is otherwise eligible for them, absent a declaration that Indianas marriage
ban is unconstitutional as applied to them and that their marriage must be respected as valid for
all purposes by the State and Defendants. See 20 C.F.R. 404.345.
15
Furthermore, subject to
certain exceptions, a couple must be married for at least 9 months before death for the widow
to be eligible for survivor benefits. 20 C.F.R. 404.335(a)(1). Without emergency relief, if
Mayra were to pass away before the marriage ban is struck down, or within nine months after it
is struck down, Veronica may be denied Social Security benefits on this ground as well.
Social Security survivor benefits are just one of the many concrete financial benefits
accorded to married couples, and Indianas failure to recognize Mayra and Veronicas marriage
will cause irreparable harm by preventing them from realizing those benefits. Gray, 2013 WL
6355918, at *4. Moreover, in addition to being denied federal benefits that are due surviving
spouses, Veronica may also be denied survivor benefits under Indiana law. For example, if
Indiana recognized their marriage, upon Mayras death Veronica would be entitled to a $25,000
allowance from Mayras estate, Ind. Code 29-1-4-1, and she would have been entitled to elect
14
Social Security Administration, Survivors Benefits, SSA Publication No. 05-10084. (July 2013) at p. 7, available
at http://www.ssa.gov/pubs/EN-05-10084.pdf.
15
To decide your relationship as the insureds widow or widower, we look to the laws of the State where the
insured had a permanent home when he or she died. 20 C.F.R. 404.345.
to receive one-half of the net personal and real estate of the testator, regardless of the
disposition made in the will. Ind. Code 29-1-3-1.
III. GRANTING INJUNCTIVE RELIEF WILL NOT HARM DEFENDANTS AND
WILL PROMOTE THE PUBLIC INTEREST.
Defendants will not suffer irreparable harmor any harm at allif they are required to
recognize Mayra and Veronicas valid marriage. Mayra and Veronica seek to enjoin Defendants
from continuing to infringe their constitutional rights, and Defendants will not be harmed by
having to conform to constitutional standards[.] City of Indianapolis, 2006 WL 2927598, at
*11; see also Video-Home-One, Inc. v. Brizzi, 2005 WL 3132336, at *6 (S.D. Ind. Nov. 22,
2005) ([T]he government experiences no harm when prevented from enforcing an
unconstitutional statute). Moreover, the requested relief requires only that the Defendants treat
this one couple in the exact manner as they treat any other married person who has recently lost
his or her spouse. See Obergefell, 2013 WL 3814262, at *7 (finding that the State would not be
harmed by issuing a TRO to a single plaintiff couple because [n]o one beyond Plaintiffs
themselves will be affected by such a limited order at all). Granting certain benefits to this one
same-sex couple entails virtually no administrative burden, and only a minor financial burden.
Tanco, 2014 WL 997525, at *8 ([T]he administrative burden on [the State] from preliminarily
recognizing the marriages of the three couples in this case would be negligible.). And in the
unlikely event that the marriage ban is later upheld, an injunction would result merely in
allowing Mayra and Veronica to be treated identically to every other different-sex married
couple in Indiana. Compared to the severe and grave harms suffered by Plaintiffs in absence of
an injunction, the balance of harms tips decidedly and strongly in Plaintiffs favor.
Moreover, granting injunctive relief will promotenot injurethe public interest. The
marriage ban as applied to Mayra and Veronica is unconstitutional. Enjoinment of constitutional
violations always promotes the public interest, because [t]he public interest is served by
protecting the constitutional rights of its citizenry. City of Indianapolis, 2006 WL 2927598, at
*11; see also, e.g., Tanford v. Brand, 883 F. Supp. 1231, 1237 (S.D. Ind. 1995)
([G]overnmental compliance with the Constitution always serves the common good.); Pratt v.
Chicago Hous. Auth., 848 F. Supp. 792, 796 (N.D. Ill. 1994) (The public interest would not be
disserved by granting the preliminary injunction because [t]he public has a powerful interest in
the maintenance of constitutional rights). Continued enforcement of an unconstitutional statute
can never be in the public interest. Joiner v. Village of Washington Park, Ill., 378 F.3d 613, 620
(7th Cir. 2004). That is particularly true, when as here, continued enforcement will cause grave
harm to a loving couple confronted with an impending tragic loss. The public simply has no
interest in denying Veronica the rights she is entitled to as a surviving spouse upon Mayras
death.
CONCLUSION
For the foregoing reasons, the Court should enter a temporary restraining order that:
(1) enjoins Defendants and all those acting in concert from enforcing the Indiana laws against
recognition of Plaintiffs Mayra Rivera and Veronica Romeros legal out-of-state marriage as
applied to them; and (2) should Plaintiff Mayra Rivera pass away in Indiana, 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 that lists Plaintiff Veronica Romero as the surviving spouse; said order
shall require that Defendant VanNess issue directives to local health departments, funeral 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.
16
DATED: September 8, 2014 Respectfully submitted,
/s/ J. Michael Hearon
Lucy R. Dollens, #23547-49
J. Michael Hearon, #31597-49
QUARLES & BRADY LLP
135 North Pennsylvania Street
Indianapolis, Indiana 46204
(317) 957-5000
lucy.dollens@quarles.com
michael.hearon@quarles.com
Steven V. Hunter (pro hac vice)
QUARLES & BRADY LLP
300 North LaSalle Street, Suite 4000
Chicago, Illinois 60654
(312) 715-5000
steven.hunter@quarles.com
Camilla B. Taylor (pro hac vice)
LAMBDA LEGAL DEFENSE & EDUCATION
FUND, INC.
105 West Adams, Suite 2600
Chicago, Illinois 60603
(312) 663-4413
ctaylor@lambdalegal.org
Counsel for Plaintiffs
16
Plaintiffs request that they be exempted from the Federal Rule of Civil Procedure 65(c) bond requirement. The
trial court has discretion over the amount of required security, and the court may elect to require no security at all.
See DiDomenico v. Employers Co-op. Indus. Trust, 676 F. Supp. 903, 909 (N.D. Ind. 1987) (Under appropriate
circumstances bond may be excused, notwithstanding the literal language of Rule 65(c), such as where the party
seeking the injunction is indigent.) (citing Wayne Chem., Inc. v. Columbus Agency Serv. Corp., 567 F.2d 692, 701
(7th Cir. 1977)).
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
VERONICA ROMERO, individually and as
parent and next friend ofB.Y.R and I.R.,
and MA YRA YVETTE RIVERA
Plaintiffs,
v.
MICHAEL A. BROWN, in his official
capacity as LAKE 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.
)
)
)
)
)
)
)
)
) Civil Action No. __
)
)
)
)
)
)
)
)
)
)
DECLARATION OF VERONICA ROMERO
I, Veronica Romero ("Veronica"), declare and state as follows:
J The testimony set forth in this declaration is based on first-hand knowledge,
about which I could and would testifY competently in open court if called to do so.
2. I am one of the Plaintiffs in the above-captioned lawsuit.
3. T live in Whiting, Indiana, with my wife Mayra Yvette Rivera ("Mayra.") and
my two daughters, B. Y .R. (age 17) and I.R. (age 8).
4. I have been in a loving and committed relationship with Mayra for over 27
years. We married each other on March 7, 2014, in a civil ceremony in Chicago, Cook
County, Illinois. Mayra and 1 ask that the State of Indiana recognize and respect our
marriage as valid and lawful in Indiana ..
1
case 2:14-cv-00325-JVB-PRC document 3-1 filed 09/08/14 page 1 of 6
A
2:14-cv-0325
5. I am 45 years old and have been a stay-at-home mom for the past four years. I
worked for many years as a security officer for CNA Insurance in downtown Chicago,
but Mayra and T decided that I should stay home to care for our girls.
6. l have known. Mayra my entire life. We grew up across tlw street from each
other. She was a classmate and friend of my brothers and sisters.
7. When I was 19, I was working two jobs and living with my parents in Chicago.
We lived above a small bar that my dad owned. One evening when I was coming home
[Tom work, I ran into Mayra in my dad's bar. We immediately rekindled our friendship
and exchanged telephone numbers. Less than a month later we were officially dating.
After another six months, Mayra and I decided to move in together as a romantic couple.
8. Mayra and I rented a small apartment in East Chicago, Indiana. In 1993, we
decided to buy a house together and moved to Lake Station, Indiana. We enjoyed the
comforts of coming home to each other, waking up together, eating together, and sharing
our lives together.
9. Sometime around September 1996, I learned tbat my sister was seven months
pregnant. My sister was not able to raise another child on her own.. Mayra. and I both
love children and had planned to sta.rt a family of our own one day. It was an easy
decision for us to raise my sister's daughter as our own. On November 11, 1996, B.Y.R.
was born. Mayra. and I brought B.Y.R. home from the hospital and we have loved and
cared for her ever since. B.Y.R. thinks of both Mayra and me as her mothers.
I 0. During a meeting with an attorney in Chicago, we were advised to put my
name only on B. Y.R.'s birth certificate. I did not think much of it because we were told
that we could always add Mayra's name to the birth certificate at a later time.
2
11. Just before B. Y.R. 's first birthday, the three of us moved into a house at 1616
Lake Avenue in Whiting, Indiana. Not unlike many heterosexual couples, Mayra and I
separated for a few months in 2005. During this time, I became pregnant and on January
3, 2006, gave birth to I.R. By this time, Mayra and I were back together and things
between us were as good as they had ever been.
12. Beginning sometime in late May 2011, Mayra began complaining of back
pain and bloating in her stomach. Over the next few weeks, the pain and discomfort kept
getting worse. I 11nally convinced her that she needed to see a doctor. On June 6, 2011, I
took Mayra to the emergency room at St. Catherine's Hospital in East Chicago, Indiana.
After performing a CT scan, the doctors broke the terrible news to us: Mayra had Stage
3C ovarian canc(:r.
13. Mayra and I were devastated. We did not know how to explain to our girls
that Mayra had a very serious, possibly tenninal cancer. Mayra was admitted to the
hospital immediately and underwent a full hysterectomy and debulking surgery to
remove n.ot only her ovaries but also her uterus, cervix, fallopian tubes, and as much of
the cancer as possible. Mayra has had to use a colostomy bag ever since.
14. After Mayra's first surgery, we were told by her doctors that they had been
able to remove 97% of the cancer. We were so hopeful that chemotherapy would rid
Mayra of the remaining 3% and we could continue our lives as a normal, happy family.
After four months of intensive chemotherapy, her doctors told us that Mayra was in
remission. We were filled with joy.
3
15. But in November 2011, I had to take Mayra back to the hospital because she
was unable to use the bathroom. The doctors told us that she had scar tissue from the
original surgery that was causing a blockage. Mayra needed another surgery.
16. After surgery, Mayra was put on another round of chemotherapy. After she
completed this second round of chemotherapy, her doctors told us that Mayra was back in
remission. Less than a month later, she was back in the hospital. Mayra's cancer had
returned and it was spreading throughout her body. This time around, the doctors told
Mayra that she would have to take chemotherapy 3 to 5 times a week, for the rest of her
life. The chemotherapy would either kill the cancer or the chemotherapy would .kill
Mayra.
1 7. So for the past three years, Mayra's life has been an overwhelming battle with
ovarian cancer and I have been her caretaker since the initial diagnosis of terminal cancer.
The chemotherapy has taken a devastating toll on Mayra's body. In June of this year, her
kidneys began to fml because they were essentially being choked by her cancer. Mayra
had to have stent placed in her kidneys to keep the urine from backing up inside her. By
July, her cancer had spread even more and was wrapping itself around her intestines. The
doctors had to give Mayra an ileostomy to move waste out of her body because her colon
simply would not work anymore.
18. On July 22, the doctors sent Mayra home and placed her on hospice care.
There is nothing else they can do for her. At this point, the goal is simply to keep Mayra
as comfortable as possible.
4
19. After years of struggle, I have come to the realization that Mayra is dying
from this cancer. This past weekend, Mayra's hospice nurse told me that she does not
expect Mayra to live more than another week.
20. l fear what will happen to our family when time runs out for Mayra despite
her courageous effurts to beat cancer. It breaks my heart to !mow that my girls are losing
Mayra, who they have considered as their mother their entire lives.
2l. Mayra and I are legally married in Illinois. Yet just a few miles away, Mayra
and J are considered both single women under the laws of Indiana. This is deeply hurtful
and makes our family feel like second class citizens.
22. B.Y.R. and I.R. are happy and healthy children that Mayra and I love so very
much. Mayra's mother has lived with us off and on for nearly 14 years and has been an
constant source oflove and support for us and for our girls.
23. TI1e uncertainty about Mayra's health has made me more concerned about the
security of our relationship and our farnily. The need to have our ma.rriage recognized so
that we can safeguard our family is incredibly urgent for all of us. I have no savings, no
checking account, and no real assets. Even our home is in Mayra's name. Mayra was the
breadwinner in our relationship. Without the legal status as Mayra's wife, I am fearful of
what will happen to my home and the assets that are in Mayra's name. If I were a man, or
Indiana recognized our valid Illinois marriage, none of this would be an issue and I could
devote my full attention on making Mayra as comfortable as possible during her last days
on earth.
24. Mayra is my wife. Words can't describe the effect it h ~ had on me and my
girls to !mow that Indiana refuses to acknowledge 1hat very special fact. It would be
5
devastating if, af1:er Mayra passes away, I received a record of her death that indicated
she was single and had no surviving spouse. Not only would that be a denial of my love
for and commitment to Mayra., it would also be grossly unfair to our children. They
deserve to have their parents respected and remembered as a loving, committed, a\ld
married couple.
1 declare under penalty of that the foregoing is true and correct to the best
of my knowledge and ability.
2014

Veronica Romero
6

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