BASKIN et al v. BOGAN et al
ORDER granting 31 Plaintiffs' Motion for Preliminary Injunction - The court finds that the Plaintiffs, Amy, Niki, A.Q-S., and M.Q.-S., have satisfied their burden for a preliminary injunction. They have shown a reasonable likelihood of su ccess on the merits, irreparable harm with no adequate remedy at law, that the public interest is in favor of the relief, and the balance of harm weighs in their favor. Therefore, the court GRANTS Plaintiffs' motion for a preliminary injuncti on (Filing No. 31 ). Defendants and all those acting in concert are ENJOINED from enforcing Indiana statute § 31-11-1-1(b) against recognition of Plaintiffs', Niki Quasney's and Amy Sandler's, valid out-of-state marriage; the State of Indiana must recognize their marriage. In addition, should Niki pass away in Indiana, the court orders William C. VanNess II, M.D., in his official capacity as the Commissioner of the Indiana State Department of Health and all those acti ng in concert, to issue a death certificate that records her marital status as "married" and lists Plaintiff Amy Sandler as the "surviving spouse." This order shall require that Defendant VanNess issue directives to local healt h 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. This preliminary injunction will remain in force until the court renders judgment on the merits of the Plaintiffs' claims. The motion for preliminary injunctive relief from the unmarried Plaintiffs (Filing No. 35 ) is WITHDRAWN. ***SEE ORDER***. Signed by Judge Richard L. Young on 5/8/2014. (JKS)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
MARILYN RAE BASKIN and ESTHER
FULLER; BONNIE EVERLY and LINDA
JUDKINS; DAWN LYNN CARVER and
PAMELA RUTH ELEASE EANES;
HENRY GREENE and GLENN
FUNKHOUSER, individually and as
parents and next friends of C.A.G.;
NIKOLE QUASNEY, and AMY
SANDLER, individually and as parents and
next friends of A.Q.-S. and M.Q.-S.,
PENNY BOGAN, in her official capacity
as BOONE COUNTY CLERK; KAREN
M. MARTIN, in her official capacity as
PORTER COUNTY CLERK; MICHAEL
A. BROWN, in his official capacity as
LAKE COUNTY CLERK; PEGGY
BEAVER, in her official capacity as
HAMILTON COUNTY CLERK;
WILLIAM C. VANNESS II, M.D., in his
official capacity as the COMMISSIONER,
INDIANA STATE DEPARTMENT OF
HEALTH; and GREG ZOELLER, in his
official capacity as INDIANA
ENTRY ON PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION
Plaintiffs, Amy Sandler (“Amy”), Nikole (“Niki”) Quasney, A.Q.-S. and M.Q.-S
asked this court to grant them a temporary restraining order (“TRO”) and a preliminary
injunction requiring the State of Indiana to recognize the out-of-state marriage of Amy
and Niki. (Filing No. 31). The court granted the TRO, which expires on May 8, 2014.
(Filing No. 44; Filing No. 51). On May 2, 2014, the court held a hearing on the pending
motions for summary judgment and preliminary injunction. For the reasons set forth
below, the court GRANTS Plaintiffs’ motion for a preliminary injunction.
Niki and Amy have been in a loving and committed relationship for more than
thirteen years. (Declaration of Nikole Quasney (“Quasney Dec.”) ¶ 2, Filing No. 32-2).
They are the parents to two very young children, Plaintiffs, A.Q.-S. and M.Q.-S. (Id. at ¶
2). On June 7, 2011, Amy and Niki entered into a civil union in Illinois, and on August
29, 2013, they were legally married in Massachusetts. (Id. at ¶ 3).
In late May of 2009, Niki was diagnosed with Stage IV Ovarian cancer, which has
a probable survival rate of five years. (Id. at ¶ 9). Since June 2009, Niki has endured
several rounds of chemotherapy; yet, her cancer has progressed to the point where
chemotherapy is no longer a viable option. Niki is receiving no further treatment; her
death is imminent.
Niki and Amy joined the other Plaintiffs to this lawsuit to present a facial
challenge to Indiana Code 31-11-1-1, titled “Same sex marriages prohibited” and states:
(a) Only a female may marry a male. Only a male may marry a female.
(b) A marriage between persons of the same gender is void in Indiana even
if the marriage is lawful in the place where it is solemnized.
Because Niki is fighting a fatal disease and is nearing the five year survival rate, she and
Amy requested that the court issue a preliminary injunction preventing Indiana from
enforcing Indiana Code § 31-11-1-1(b) as applied to them, and requiring the State of
Indiana, through the Defendants, to recognize Niki as married to Amy on her death
Preliminary Injunction Standard
A preliminary injunction “is an exercise of a very far-reaching power, never to be
indulged in except in a case clearly demanding it.” Girl Scouts of Manitou Council, Inc.
v. Girl Scouts of U.S.A., Inc., 549 F.3d 1079, 1085-86 (7th Cir. 2008) (citations omitted).
The court analyzes a motion for a preliminary injunction “in two distinct phases: a
threshold phase and a balancing phase.” Id. Under the threshold phase for preliminary
injunctive relief, a plaintiff must establish – and has the ultimate burden of proving by a
preponderance of the evidence – each of the following elements: (1) some likelihood of
success on the merits, (2) absent a preliminary injunction, she will suffer irreparable
harm, and (3) traditional legal remedies would be inadequate. Id. at 1806. To satisfy the
first requirement, a plaintiff’s chance of success must be more than negligible. See
Brunswick Corp. v. Jones, 784 F.2d 271, 275 (7th Cir. 1986).
“If the court determines that the moving party has failed to demonstrate any one of
these  threshold requirements, it must deny the injunction.” Girl Scouts of Manitou
Council, Inc., 549 F.3d at 1086 (citation omitted). If, on the other hand, the court
determines the moving party has satisfied the threshold phase, the court then proceeds to
the balancing phase of the analysis. Id. The balancing phase requires the court to
balance the harm to the moving party if the injunction is denied against the harm to the
nonmoving party if the injunction is granted. Id. In so doing, the court utilizes what is
known as the sliding scale approach; “the more likely the [movant] will succeed on the
merits, the less the balance of irreparable harms need favor the [movant’s] position.” Id.
Additionally, this stage requires the court to consider “any effects that granting or
denying the preliminary injunction would have on nonparties (something courts have
termed the ‘public interest’).” Id.
Before reaching the merits, Defendants pose two challenges that the court must
initially address. First, they argue the Plaintiffs, Niki and Amy, lack standing to assert
preliminary injunctive relief. Second, in light of the Supreme Court’s recent decision in
Herbert v. Kitchen, 134 S.Ct. 893 (2013), they argue preliminary injunctive relief is
To have standing a plaintiff “must present an injury that is concrete, particularized,
and actual or imminent, fairly traceable to the defendant’s challenged behavior, and likely
to be redressed by a favorable ruling.” Davis v. Fed. Election Comm’n, 554 U.S. 724,
733 (2008). Defendants argue that the harms alleged by Plaintiffs as arising from
Indiana’s non-recognition statute are not concrete and particularized, nor fairly traceable
to them. Thus, according to Defendants, a preliminary injunction cannot favorably
address Plaintiffs’ harms.
The Defendants in this case, the Attorney General; the County Clerks from Boone,
Porter, Lake, and Hamilton Counties; and the Commissioner of the Indiana Department
of Health, are statutorily required to enforce Indiana Code § 31-11-1-1 by not
recognizing the marriage. See Ind. Code § 4-6-1-6; see also Ind. Code § 31-11-4-2; see
also Ind. Code § 16-37-1-3 and Ind. Code § 16-37-1-3.1. The injury to Plaintiffs
resulting from Indiana’s non-recognition statute harms the Plaintiffs in numerous tangible
and intangible ways, including causing Niki to drive to Illinois where her marriage will
be recognized in order to receive medical care and the dignity of marital status. Thus, a
preliminary injunction enjoining Defendants from enforcing the non-recognition statute
against Plaintiffs will, therefore, redress their claimed injury. Therefore, the court finds
that the Plaintiffs have standing to seek a preliminary injunction.
Is preliminary injunctive relief appropriate?
Citing Herbert v. Kitchen, Defendants contend that Plaintiffs’ demands for
preliminary relief are inappropriate under Federal Rule of Civil Procedure 65. Herbert v.
Kitchen, 134 S.Ct. 893 (Jan. 6, 2013). In that case, the Supreme Court issued a stay of
the District of Utah’s permanent injunction requiring officials to issue marriage licenses
to same-sex couples and to recognize all same-sex marriages performed in other states.
Since that ruling, all decisions by federal district courts have been stayed while the
requisite preliminary and permanent injunctions are appealed to the respective circuit
Nevertheless, the court does not interpret the fact that the other federal courts are
staying injunctions to mean that preliminary injunctive relief is inappropriate in this case.
Nor does the court agree that a stay by the Supreme Court of such a broad injunction
conclusively determines that the Plaintiffs here are not entitled to the narrow form of
injunctive relief they seek. Additionally, despite these stays, no court has found that
preliminary injunctive relief is inappropriate simply because a stay may be issued.
Therefore, the court finds that preliminary injunctive relief is still appropriate in this
matter and proceeds to that analysis.
Is there a likelihood of success on the merits?
Plaintiffs argue that Indiana’s statute prohibiting the recognition of same-sex
marriages and in fact, voiding such marriages, violates the Fourteenth Amendment’s Due
Process Clause and Equal Protection Clause.
Equal Protection Clause
Plaintiffs argue that Indiana’s non-recognition statute, codified at Indiana Code §
31-11-1-1(b), which provides that their state-sanctioned out-of-state marriage will not be
recognized in Indiana and is indeed, void in Indiana, deprives them of equal protection.
The Equal Protection Clause commands that no state shall deny to any person within its
jurisdiction the equal protection of the laws. U.S. CONST. amend. XIV, § 1.
The theory underlying Plaintiffs’ claim is the notion that Indiana denies same-sex
couples the same equal rights, responsibilities and benefits that heterosexual couples
receive through “traditional marriage.” According to Defendants, the State’s interest in
traditional marriage is to encourage heterosexual couples to stay together for the sake of
any unintended children that their sexual relationship may produce, and to raise those
children in a household with both male and female role models. The State views
heterosexual couples who, for whatever reason, are not capable of producing children, to
further the state’s interest in being good male-female role models.
In the wake of the Supreme Court’s decision in United States v. Windsor, 134
S.Ct. 2675 (2013), district courts from around the country have rejected the idea that a
state’s non-recognition statute bears a rational relation to the state’s interest in traditional
marriage as a means to foster responsible procreation and rear those children in a stable
male-female household. See Tanco, 2014 WL 997525 at * 6; see also Bishop v. U.S. ex
rel. Holder, 962 F. Supp. 2d 1252 (N.D. Okla. 2014) (finding there is no rational link
between excluding same-sex marriages and “steering ‘naturally procreative’
relationships into marriage, in order to reduce the number of children born out of
wedlock and reduce economic burdens on the State); see also DeBoer v. Snyder, No.1:12cv-10285, 2014 WL 1100794, * 2 (E.D. Mich. Mar. 21, 2014) (noting that prohibiting
same-sex marriages “does not stop [gay men and lesbian women] from forming families
and raising children). Indeed, as the court found in its prior Entry, with the wave of
persuasive cases supporting Plaintiffs’ position, there is a reasonable likelihood that the
Plaintiffs will prevail on the merits, even under the highly-deferential rational basis
standard of review. See Henry, 2014 WL 1418395 at ** 1-2 (noting that since the
Supreme Court’s ruling in Windsor, all federal district courts have declared
unconstitutional and enjoined similar bans); see also Tanco, 2014 WL 997525 at * 6 (“in
light of the rising tide of persuasive post-Windsor federal case law, it is no leap to
conclude that the plaintiffs here are likely to succeed in their challenge.”) The reasons
advanced by the State in support of Indiana’s non-recognition statute do not distinguish
this case from the district court cases cited above.
The court is not persuaded that, at this stage, Indiana’s anti-recognition law will
suffer a different fate than those around the country. Thus, the Plaintiffs have shown that
they have a reasonable likelihood of success on the merits of their equal protection
challenge, even under a rational basis standard of review. Therefore, the court at this
stage does not need to determine whether sexual orientation discrimination merits a
higher standard of constitutional review.
Due Process Clause
Plaintiffs assert that they have a due process right to not be deprived of one’s
already-existing legal marriage and its attendant benefits and protections. See Obergefell
v. Wymyslo, 962 F. Supp. 2d 968, 978 (S.D. Ohio 2013) (finding that non-recognition
invokes “the right not to be deprived of one’s already-existing legal marriage and its
attendant benefits and protections.”); see also Henry v. Himes, No. 1:14-cv-129, 2014
WL 1418395, * 9 (S.D. Ohio Apr. 14, 2014) (applying intermediate scrutiny where Ohio
is “intruding into and in fact erasing” the marriage relationship); see also De Leon v.
Perry, No. SA-13-CA-00982-OLG, 2014 WL 715741, ** 21-24 (W.D. Tex Feb. 26,
2014) (applying rational basis review and finding “that by declaring lawful same-sex
marriages void and denying married couples the rights, responsibilities, and benefits of
marriage, Texas denies same-sex couples who have been married in other states their due
Defendants counter that there is no due process right to have one’s marriage
recognized. According to Defendants, recognition of marriages from other states is only
a matter of comity, not a matter of right. See e.g., Sclamberg v. Sclamberg, 41 N.E.2d
801 (Ind. 1942) (recognizing parties’ concession that their marriage, performed in Russia,
was void under Indiana law because they were uncle and niece). Defendants again stress
that Windsor is a case merely about federalism and did not create a right under the Due
Process Clause to have one’s marriage recognized.
The court found in its prior ruling that as a general rule, Indiana recognizes those
marriages performed out of state. Bolkovac v. State, 98 N.E.2d 250, 304 (Ind. 1951)
(“[t]he validity of a marriage depends upon the law of the place where it occurs.”). This
includes recognizing marriages between first cousins despite the fact that they cannot
marry in Indiana. See Mason v. Mason, 775 N.E.2d 706, 709 (Ind. Ct. App. 2002).
Indiana’s non-recognition of Plaintiffs’ marriage is a departure from the traditional rule in
Indiana. Furthermore, the court notes that by declaring these marraiges void, the State of
Indiana may be depriving Plaintiffs of their liberty without due process of law. See e.g.
Loving v. Virginia, 388 U.S. 1, 12 (1967) (“to deny this fundamental freedom on so
unsupportable a basis as the racial classification embodied in these statutes, . . . is surely
to deprive all of the State’s citizens of liberty without due process of law.”) Therefore,
the court finds that Plaintiffs have shown some likelihood of success on this claim.
Are any injuries to Plaintiffs irreparable?
“Irreparable harm is harm which cannot be repaired, retrieved, put down again,
atoned for . . . . [T]he injury must be of a particular nature, so that compensation in
money cannot atone for it.” Graham v. Med. Mut. of Ohio, 130 F.3d 293, 296 (7th Cir.
1997) (internal quotation and citation omitted). Defendants first argue that there is not
irreparable harm here, because Plaintiffs have endured these injuries for a substantial
period of time. See Celebration Int’l, Inc. v. Chosum Int’l, Inc., 234 F. Supp. 2d 905, 920
(S.D. Ind. 2002) (Though not dispositive, “tardiness weighs against a plaintiff’s claim of
irreparable harm . . . .”). The court does not find that the requested relief is tardy for two
reasons: (1) there has been a recent, substantial change in the law, and (2) in June 2014,
Niki will have reached the average survival rate for her disease.
Defendants challenge the Plaintiffs’ claim and this court’s prior finding that the
constitutional injury alleged herein is sufficient evidence of irreparable harm. In support,
Defendants rely on cases decided in other circuits. These cases are not binding on this
court, but merely persuasive. After a more thorough review of the cases in the Seventh
Circuit, the court reaffirms its conclusion that a constitutional violation, like the one
alleged here, is indeed irreparable harm for purposes of preliminary injunctive relief. See
Preston v. Thompson, 589 F.2d 300, 303 n. 3 (7th Cir. 1978) (“[t]he existence of a
continuing constitutional violation constitutes proof of an irreparable harm.”); see Does v.
City of Indianapolis, No. 1:06-cv-865-RLY-WTL, 2006 WL 2927598, *11 (S.D. Ind.
Oct. 5, 2006) (quoting Cohen v. Coahoma Cnty., Miss., 805 F. Supp. 398, 406 (N.D.
Miss. 1992) for the proposition that “[i]t has been repeatedly recognized by federal courts
at all levels that violation of constitutional rights constitutes irreparable harm as a matter
of law.”); see also Back v. Carter, 933 F. Supp. 738, 754 (N.D. Ind. 1996) (“When
violations of constitutional rights are alleged, further showing of irreparable injury may
not be required if what is at stake is not monetary damages. This rule is based on the
belief that equal protection rights are so fundamental to our society that any violation of
those rights causes irreparable harm.”); see also Ezell v. City of Chicago, 651 F.3d 684
(7th Cir. 2011) (finding irreparable harm when Plaintiffs’ Second Amendment rights
were likely violated); see also Hodgkins v. Peterson, No. 1:04-cv-569-JDT-TAB, 2004
WL 1854194, * 5 (S.D. Ind. Jul. 23, 2004) (granting a preliminary injunction enjoining
enforcement of Indianapolis’ curfew law as it likely violated the parents’ due process
rights and finding that “when an alleged deprivation of a constitutional right is involved,
most courts hold that no further showing of irreparable injury is necessary.)
Even if a further showing of irreparable harm is required, the court finds that
Plaintiffs have met this burden. Niki suffers irreparable harm as she drives to Illinois to
receive treatment at a hospital where her marriage will be recognized. In addition, Niki
may pass away without enjoying the dignity that official marriage status confers. See
Obergefell v. Kasich, No. 1:13-cv-501, 2013 WL 3814262, * 7 (S.D. Ohio Jul. 22, 2013)
(“Dying with an incorrect death certificate that prohibits Mr. Arthur from being buried
with dignity constitutes irreparable harm. Furthermore, Mr. Arthur’s harm is irreparable
because his injury is present now, while he is alive. A later decision allowing an
amendment to the death certificate cannot remediate the harm to Mr. Arthur, as he will
have passed away.”); see also Gray v. Orr, (N.D. Ill. Dec. 5, 2013) (“Equally, if not
more, compelling is Plaintiffs’ argument that without temporary relief, they will also be
deprived of enjoying less tangible but nonetheless significant personal and emotional
benefits that the dignity of official marriage status confers.”). These are concrete,
tangible injuries that are fairly traceable to Defendants and can be remedied by a
Balance of Harms and Public Interest
Having satisfied the threshold phase of a preliminary injunction, the court now
turns to the balancing phase. Plaintiffs assert that Defendants have not suffered and will
not suffer irreparable harm from this preliminary injunction, and that the public interest is
served by a preliminary injunction because there is no interest in upholding
unconstitutional laws. Defendants counter that while they can point to no specific
instances of harm or confusion since the court granted the TRO three weeks ago, the
State is harmed in the abstract by not being able to enforce this law uniformly and against
Plaintiffs. Defendants argue that the public interest weighs in their favor because (1) the
State has a compelling interest in defining marriage and administering its own marriage
laws, and (2) the continuity of Indiana’s marriage laws avoids potential confusion over a
series of injunctions.
As the court has recognized before, marriage and domestic relations are
traditionally left to the states; however, the restrictions put in place by the state must
comply with the United States Constitution’s guarantees of equal protection of the laws
and due process. See Windsor, 133 S.Ct. at 2691 (citing Loving v. Virginia, 388 U.S. 1
(1967)). The State does not have a valid interest in upholding and applying a law that
violates these constitutional guarantees. See Joeiner v. Vill. Of Washington Park, 378
F.3d 613, 620 (7th Cir. 2004). Although the court recognizes the State’s concern that
injunctions of this sort will cause confusion with the administration of Indiana’s marriage
laws and to the public in general, that concern does not apply here.1 The court is faced
with one injunction affecting one couple in a State with a population of over 6.5 million
people. This will not disrupt the public understanding of Indiana’s marriage laws.
The court finds that the Plaintiffs, Amy, Niki, A.Q-S., and M.Q.-S., have satisfied
their burden for a preliminary injunction. They have shown a reasonable likelihood of
success on the merits, irreparable harm with no adequate remedy at law, that the public
interest is in favor of the relief, and the balance of harm weighs in their favor. Therefore,
the court GRANTS Plaintiffs’ motion for a preliminary injunction (Filing No. 31).
Defendants and all those acting in concert are ENJOINED from enforcing Indiana
statute § 31-11-1-1(b) against recognition of Plaintiffs’, Niki Quasney’s and Amy
Sandler’s, valid out-of-state marriage; the State of Indiana must recognize their marriage.
In addition, should Niki pass away in Indiana, the court orders William C. VanNess II,
M.D., in his official capacity as the Commissioner of the Indiana State Department of
Health and all those acting in concert, to issue a death certificate that records her marital
status as “married” and lists Plaintiff Amy Sandler as the “surviving spouse.” This order
shall require that Defendant VanNess issue directives to local health departments, funeral
This argument had more strength when all of the Plaintiffs in the present lawsuit were seeking
preliminary injunctive relief, because they (as opposed to Niki and Amy) were never married,
and challenged the constitutionality of Indiana’s traditional marriage law. The motion for
preliminary injunctive relief from the unmarried Plaintiffs (Filing No. 35) is WITHDRAWN;
therefore, the court does not see the potential of creating great confusion from the court’s grant
of the present motion which affects only one couple. Should this injunction be reversed or a
permanent injunction not issued at a later time, only the parties to this case may suffer from
confusion. The court has faith that their respective attorneys can explain any decisions and
effects from those decisions to them.
homes, physicians, coroners, medical examiners, and others who may assist with the
completion of said death certificate explaining their duties under the order of this court.
This preliminary injunction will remain in force until the court renders judgment on the
merits of the Plaintiffs’ claims.
In conclusion, the court recognizes that the issues with which it is confronted are
highly contentious and provoke strong emotions both in favor and against same-sex
marriages. The court’s ruling today is not a final resolution of the merits of the case – it
is a preliminary look, or in other words, a best guess by the court as to what the outcome
will be. Currently, all federal district court cases decided post-Windsor indicate that
Plaintiffs are likely to prevail. Nevertheless, the strength or weakness of Plaintiffs’ case
at the time of final dissolution will inevitably be impacted as more courts are presented
with this issue.
SO ORDERED this 8th day of May 2014.
s/ Richard L.Young________________
RICHARD L. YOUNG, CHIEF JUDGE
United States YOUNG, CHIEF JUDGE
RICHARD L. District Court
United States District Court
Southern District of Indiana
Southern District of Indiana
Distributed Electronically to Registered Counsel of Record.
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