1:14-cv-00406 #43

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

PAMELA LEE, et al., ) ) Plaintiffs, ) ) v. ) Case No. 1:14-CV-406-RLY-TAB ) MIKE PENCE, in his official capacity as ) Governor of the State of Indiana, et al., ) ) Defendants. )

DEFENDANTS’ ANSWER TO COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Defendants Mike Pence, Brian Abbott, Chris Atkins, Ken Cochran, Steve Daniels, Jodi

Golden, Michael Pinkham, Kyle Rosebrough, Bret Swanson, and Steve Russo (“the State”), by

counsel, hereby file this answer to the Complaint for Declaratory and Injunctive Relief (“the

Complaint”) filed in this action by Pamela Lee, Candace Batten-Lee, Teresa Welborn, Elizabeth

J. Piette, Ruth Morrison, Martha Leverett, Karen Vaughn-Kajmowicz, Tammy Vaughn-

Kajmowicz, J.S.V., T.S.V, and T.R.V. (“Plaintiffs”).

INTRODUCTION

1. Plaintiffs bring this action pursuant to 42 U.S.C. § 1983 to challenge the

constitutionality under the United States Constitution of Indiana Code § 31-11-1-1 and its

voiding of their marriages to persons of the same sex, despite plaintiffs' marriages having been

lawfully entered into under the laws of a state other than Indiana. Said challenge to Indiana Code

§ 31-11-1-1 is both facial and as applied to plaintiffs. Indiana Code § 31-11-1-1 provides as

follows:

Case 1:14-cv-00406-RLY-TAB Document 43 Filed 05/16/14 of 22 PageID #: 310

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(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.

ANSWER: Indiana Code § 31-11-1-1 speaks for itself. The State admits that Plaintiffs seek to bring this action under 42 U.S.C. § 1983, but denies that Plaintiffs are entitled to any relief under that statute.

2. Indiana law provides that “[t]he validity of the marriage, being governed by the

law of the place of its celebration, must be recognized in Indiana as a matter of comity.” Gunter

v. Dealer's Transport Company, 120 Ind. App. 409; 91 N.E.2d 377, 379 (Ind. Ct. App. 1950).

ANSWER: Gunter v. Dealer’s Transport Company, 91 N.E.2d 377 (Ind. App. 1950) (en banc), speaks for itself. To the extent Plaintiffs allege that general principles of Indiana law require recognition of same-sex marriages entered into in other States, Defendants deny the allegation. 3. But under comity principles, Indiana is not required to recognize a marriage

solemnized in another state if the marriage violates Indiana's public policy. Mason v. Mason,

775 N.E.2d 706, 709 (Ind. Ct. App. 2002) (while marriage between first cousins under the age of

65 is void in Indiana, marriage will be recognized by Indiana if the first cousins marry in a state

where such marriages are recognized, as there is no Indiana statute that articulates a public policy

against the marriage of first cousins).

ANSWER: Mason v. Mason, 775 N.E.2d 706 (Ind. Ct. App. 2002), speaks for itself. 4. Under Indiana law, the only out-of-state marriages for which there is a public

policy voiding the marriage upon returning to Indiana are those marriages between persons of the

same sex and marriages entered into out of state so as to evade the prohibition of marrying while

mentally incompetent, drunk or on drugs. See, I.C. § 31-11-8-6.


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ANSWER: Indiana Code § 31-11-8-6 speaks for itself. The State denies that Indiana law voids only same-sex marriages from other States and marriages solemnized to evade Indiana marriage laws. The State observes, for example, that Indiana Code § 31-11-8-2 prohibits polygamy, Indiana Code § 31-11-8-3 prohibits marriages to close relatives, Indiana Code § 31-11-8-5 prohibits common law marriages, and Indiana Code § 31-11-2-1 prohibits marriages of underage individuals absent parental consent or leave of court. 5. Indiana's law restricting marriage to opposite-sex couples publicly stigmatizes

persons in a same-sex marriage and sends a hideous message to their children by implying that

persons entering into same-sex marriages are equivalent to marriages entered into by the

mentally incompetent, the drunk or the drugged.

ANSWER: Indiana Code § 31-11-1-1 and Indiana Code § 31-11-8-6 speak for themselves. The State denies any remaining allegations set forth in paragraph 5 of the Complaint.

6. Indiana’s refusal to recognize same-sex marriage solemnized in another state

denies plaintiffs “a dignity and status of immense import.” United States v. Windsor, 133 S.Ct.

2675, 2692 (2013). Moreover, they are stigmatized and relegated to a second-class status by

having their respective marriages declared void by Indiana, which suggests that their

relationships are “unworthy” of recognition. Id. at 2694.

ANSWER: United States v. Windsor, 133 S. Ct. 2675 (2013), speaks for itself. The State denies any remaining allegations set forth in paragraph 6 of the Complaint.

JURISDICTION AND VENUE

7. This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and

1343 because this suit raises federal questions pursuant to 42 U.S.C. § 1983. Plaintiffs seek both

injunctive relief and a declaratory judgment pursuant to 42 U.S.C. § 2201.

ANSWER: The State admits that the Complaint describes at least one claim over which the Court would have federal question jurisdiction and that Plaintiffs seek to bring this action under 42 U.S.C. § 1983, but denies that Plaintiffs are entitled to any relief under that statute. The State denies that 42 U.S.C. § 2201 has any relevance to this


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matter. The State admits that 28 U.S.C. § 2201 authorizes declaratory relief generally. The State denies that Plaintiffs are entitled to declaratory relief. 8. Venue is proper in the Indianapolis Division of the Southern District of Indiana

under 28 U.S.C. § 1391(b) because defendants reside or have their principal offices in this

district.

ANSWER: The State admits the allegations set forth in paragraph 8 of the Complaint.

PARTIES

9. Defendant Mike Pence is the Governor of the State of Indiana. In his official

capacity, he is the chief executive officer of Indiana and is, pursuant to Article V, Section 16 of

the Indiana Constitution, responsible for the faithful execution of the laws of Indiana, including

I. C. § 31-11-1-1, the law that excludes same-sex couples from having their out-of-state marriage

recognized in Indiana. Governor Pence is a person within the meaning of 42 U.S.C. § 1983 and

was acting under color of state law at all times relevant to this complaint.

ANSWER: Article 5, § 16 of the Indiana Constitution speaks for itself. The State admits that Mike Pence is the Governor of Indiana. To the extent the Complaint seeks injunctive relief against Governor Pence, the State admits that he is a “person” within the meaning of 42 U.S.C. § 1983. To the extent the Complaint seeks any other relief against Governor Pence, the State denies that he is a “person” within the meaning of 42 U.S.C. § 1983. The State denies any remaining allegations set forth in paragraph 9 of the Complaint. 10. Defendants Brian Abbott, Chris Atkins, Ken Cochran, Steve Daniels, Jodi

Golden, Michael Pinkham, Kyle Rosebrough and Bret Swanson are members of the Board of

Trustees of the Indiana Public Retirement System (“INPRS”) who administer the 1977 Police

Officers’ and Firefighters’ Pension and Disability Fund (“Pension Fund”) in which Officers Lee

and Welborn and Chief Morrison are participants. Defendant Steve Russo is the executive


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director of the INPRS. All of these defendants are persons within the meaning of 42 U.S.C. §

1983 and were acting under color of state law at all times relevant to this complaint.

ANSWER: The State admits that Brian Abbott, Chris Atkins, Ken Cochran, Steve Daniels, Jodi Golden, Michael Pinkham, Kyle Rosebrough, and Bret Swanson are members of the Board of Trustees of the Indiana Public Retirement System (“INPRS”), and that Steve Russo is the executive director of the INPRS. To the extent the Complaint seeks injunctive relief against these Defendants, the State admits they are “persons” within the meaning of 42 U.S.C. § 1983 and that these Defendants have acted under color of state law at all times relevant to this matter. To the extent the Complaint seeks any other relief against these defendants, the State denies that they are “persons” within the meaning of 42 U.S.C. § 1983. The State admits that Officers Lee and Welborn are active participants and Chief Morrison is a retired participant in the Pension Fund. The State denies any remaining allegations set forth in paragraph 10 of the Complaint. 11. All defendants named herein are sued in their official capacities.


12. Each of the defendants, and those subject to their supervision, direction, and

control, intentionally performed, participated in, aided and/or abetted in some manner the acts

alleged herein, proximately caused the harm alleged herein, and will continue to injure plaintiffs

irreparably if not enjoined from enforcing I. C. § 31-11-1-1.

ANSWER: The State denies the allegations set forth in paragraph 12 of the Complaint.

13. On October 25, 2013, plaintiffs Pamela Lee and Candace Batten-Lee were

lawfully married in California, a state that issues marriage licenses to same-sex couples. Officer

Lee, a military veteran, has served as a police officer for 22 years, serving the last 19 years with

the Indianapolis Metropolitan Police Department.

ANSWER: The State is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 13 of the Complaint.


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14. On or about January 27, 2014, Officer Lee made application for the designation of

plaintiff Candace Batten-Lee as her spouse and primary beneficiary. The Pension Fund has

declined to recognize Ms. Batten-Lee as the spouse of Officer Lee because it claims it is

prohibited from doing so under I.C. § 31-11-1-1.

ANSWER: The State admits the allegations set forth in paragraph 14 of the Complaint. 15. On December 13, 2013, plaintiffs Teresa Welborn and Elizabeth J. Piette were

lawfully married in Hawaii, a state that issues marriage licenses to same-sex couples. For more

than 25 years, Officer Welborn has served as an officer with the Indianapolis Metropolitan

Police Department.


16. On or about February 20, 2014, Officer Welborn made application for the

designation of plaintiff Elizabeth Piette as her spouse and primary beneficiary. The Pension

Fund has declined to recognize Ms. Piette as the spouse of Officer Welborn because it claims it

was prohibited from doing so under I.C. § 31-11-1-1.

ANSWER: The State admits the allegations set forth in paragraph 16 of the Complaint. 17. On September 11, 2013, Chief Morrison and Martha Leverett were issued a

marriage license in Maryland, a state that issues marriage licenses to same-sex couples, and

married in Washington, D.C., jurisdiction that permits same-sex marriages. Chief Morrison

served in the Indianapolis Fire Department for over 27 years before retiring as battalion chief on

December 23, 2013.



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18. On or about September 18, 2013, Chief Morrison submitted her application for

retirement benefits and affirmed under oath that her marital status is that of “married” and that

plaintiff Leverett is her lawful spouse. Chief Morrison was informed by the INPRS that Leverett

would not be recognized as Chief Morrison’s spouse because of I. C. § 31-11-1-1.

ANSWER: The State admits the allegations set forth in paragraph 18 of the Complaint. 19. On October 25, 2013, Plaintiffs Karen Vaughn-Kajmowicz and Tammy Vaughn-

Kajmowicz were lawfully married in Iowa, a state that issues marriage licenses to same-sex

couples. Sergeant Vaughn-Kajmowicz, has served as a police officer for 18 years with the

Evansville Police Department, most recently working in the Narcotics Division. Plaintiffs

Sergeant Vaughn-Kajmowicz and Tammy Vaughn-Kajmowicz are the parents of J. S. V., T. S.

V. and T. R. V., each of whom is under the age of seven years.


20. In or around October 2013, Sergeant Vaughn-Kajmowicz made application for

the designation of plaintiff Tammy Vaughn-Kajmowicz as her spouse and primary beneficiary.

The Pension Fund has declined to recognize Ms. Vaughn-Kajmowicz as the spouse of Sergeant

Vaughn-Kajmowicz because it claims it is prohibited from doing so under I.C. § 31-11-1-1.


COUNT I

Indiana’s Refusal to Recognize Plaintiffs’ Marriages Violates the Equal Protection Clause

of the Fourteenth Amendment to the United States Constitution

21. Plaintiffs incorporate by reference the allegations of paragraphs 1-20.


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ANSWER: The State incorporates by reference its responses to the allegations of paragraphs 1-20.

22. The Equal Protection Clause of the Fourteenth Amendment to the United States

Constitution provides that “no State shall . . . deny to any person within its jurisdiction the equal

protection of the laws.”

ANSWER: The Fourteenth Amendment to the United States Constitution speaks for itself.

23. By refusing to recognize plaintiffs’ same-sex marriages that were lawful in the

jurisdictions where those marriages were solemnized, defendants are depriving them of the

numerous legal protections that are available to opposite sex couples under Indiana law by virtue

of marriage.

ANSWER: The State admits that Indiana law confers some benefits in some circumstances based on marital status and that Indiana law declares out-of-state same-sex marriages void for that purpose. The State denies any remaining allegations set forth in paragraph 23 of the Complaint. 24. Indiana’s refusal to recognize same-sex marriages validly performed in other

states infringes on protections offered by the Equal Protection Clause of the Fourteenth

Amendment and treats plaintiffs differently because they married persons of the same sex instead

of the opposite sex.


25. Officer Wellborn and Battalion Chief Morrison are vested members and

beneficiaries of the Pension Fund.



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26. Sergeant Vaughn-Kajmowicz, Officer Welborn and Officer Lee are active duty

police officers who would be covered by the provisions of the Pension Fund if they are killed in

the line of duty.


27. Sergeant Vaughn-Kajmowicz, Officer Welborn and Officer Lee are active duty

police officers who would be covered by the provisions of the Pension Fund if they were to die

while on active duty.


28. Under the Pension Fund, if a police officer dies in the line of duty, then the

"surviving spouse is entitled to a monthly benefit during the spouse's lifetime." I.C. § 36-8-8-

14.1. It is not necessary that the police officer be vested in the Pension Fund to be covered by

this provision.

ANSWER: Indiana Code § 36-8-8-14.1 speaks for itself. The State admits the remaining allegations set forth in paragraph 28 of the Complaint. 29. Defendants recognize the spouses of police officers married to persons of the

opposite sex and enter those spouses as spouses in the officers’ records maintained by the

Pension Fund. If such officers die in the line of duty, their opposite-sex spouse is entitled to be

paid a monthly benefit during the spouse's lifetime.

ANSWER: The State denies the allegations set forth in paragraph 29 of the Complaint because they are overbroad. Defendant Pence has no role in “recogniz[ing] the spouses of police officers married to persons of the opposite sex and enter[ing] those spouses as spouses in the officers’ records maintained by the Pension Fund.” Furthermore, no Defendant would confer such recognition on a marriage that was void under Indiana law, even if it was a marriage between opposite-sex individuals.


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30. Because of I. C. § 31-11-1-1, defendants have refused to enter the same-sex

spouses of Sergeant Vaughn-Kajmowicz, Officer Welborn and Officer Lee as designated

surviving spouse beneficiaries in the officers' records, making their spouses ineligible to claim

this benefit if Sergeant Vaughn-Kajmowicz, Officer Lee or Officer Welborn should die in the

line of duty.

ANSWER: Indiana Code § 31-11-1-1 speaks for itself. The State admits that Indiana law confers some benefits in some circumstances based on marital status and that Indiana law declares out-of-state same-sex marriages void for that purpose. The State denies any remaining allegations set forth in paragraph 30 of the Complaint as vague and ambiguous. 31. Under the Pension Fund, if a police officer is married to a person of the opposite

sex and dies in the line of duty, the Pension Fund will pay that officer's spouse a lump sum, tax

free, of $150,000.00. See I.C. § 36-8-8-20(c).

ANSWER: Indiana Code § 36-8-8-20(c) speaks for itself. 32. Because of I. C. § 31-11-1-1, defendants have refused to designate the spouses of

Sergeant Vaughn-Kajmowicz, Officer Lee and Officer Welborn as designated spouse

beneficiaries in the officers' records as maintained by the Pension Fund, making their spouses

ineligible to claim the lump sum payment should Sergeant Vaughn-Kajmowicz, Officer Lee or

Officer Welborn die in the line of duty.

ANSWER: Indiana Code § 31-11-1-1 speaks for itself. The State admits that Indiana law confers some benefits in some circumstances based on marital status and that Indiana law declares out-of-state same-sex marriages void for that purpose. The State denies any remaining allegations set forth in paragraph 32 of the Complaint as vague and ambiguous. 33. Under the Pension Fund, if a police officer is married to a person of the opposite

sex and dies while on active duty, the Pension fund will pay that officer's surviving spouse a

monthly benefit. See I.C. § 36-8-8-13.8(c).


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ANSWER: Indiana Code § 36-8-8-13.8(c) speaks for itself. 34. Because of I. C. § 31-11-1-1, defendants have refused to designate the spouses of

Sergeant Vaughn-Kajmowicz, Officer Lee and Officer Welborn as designated spouse

beneficiaries, making them ineligible to claim the monthly benefit should Sergeant Vaughn-

Kajmowicz, Officer Lee or Officer Welborn die while on active duty.

ANSWER: Indiana Code § 31-11-1-1 speaks for itself. The State admits that Indiana law confers some benefits in some circumstances based on marital status and that Indiana law declares out-of-state same-sex marriages void for that purpose. The State denies any remaining allegations set forth in paragraph 34 of the Complaint as vague and ambiguous. 35. Should Sergeant Vaughn-Kajmowicz die while on active duty, her dependent

children will receive the monthly benefit but as the surviving mother of the children will not

receive a benefit, the total of the family's monthly benefit will be significantly less than a

similarly situated family where the officer's spouse was of the opposite sex.


36. Under the Pension Fund, if a retired firefighter dies while receiving retirement,

the "surviving spouse is entitled to a monthly benefit." I.C. § 36-8-8-13.8. If a retired firefighter

is married to a person of the opposite sex, the Pension Fund will pay the spouse of that retired

firefighter a monthly benefit.

ANSWER: Indiana Code § 36-8-8-13.8 speaks for itself. The State denies the remaining allegations set forth in paragraph 36 of the Complaint to the extent they are overbroad. The State denies that the Pension Fund would pay retirement benefits to a surviving spouse whose marriage was void under Indiana law, even if it was a marriage between opposite-sex individuals.


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37[a].1 Because of I. C. § 31-11-1-1, defendants have refused to designate the spouse of

retired Chief Morrison as a spouse beneficiary thereby making her ineligible to claim the

monthly benefit should she be predeceased by Chief Morrison.

ANSWER: Indiana Code § 31-11-1-1 speaks for itself. The State admits that Indiana law confers some benefits in some circumstances based on marital status and that Indiana law declares out-of-state same-sex marriages void for that purpose. The State denies any remaining allegations set forth in paragraph 37a of the Complaint as vague and ambiguous. 37[b]. Without certain knowledge of what benefits will be made available to their

surviving spouse, plaintiffs cannot do necessary financial and estate planning. If plaintiffs wish

to provide for the same level of benefits provided by the pension fund to surviving spouses who

are the opposite sex of the deceased officer or firefighter, they must pay an additional amount to

private investment plans, a financial burden not imposed upon same opposite-sex couples.

ANSWER: The State is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 37b of the Complaint.

38[a]. In the case of the children, J. S. V., T. S. V. and T. R. V., while the children will

qualify for a monthly benefit, their stay-at-home mother, Tammy Vaughn-Kajmowicz, will not

receive a benefit. Thus, her burden to care for her children as the surviving spouse of Sergeant

Vaughn-Kajmowicz will be more costly and difficult than the financial burden of an opposite-

sex spouse of a deceased police officer with children.

ANSWER: The State is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 38a of the Complaint.

38[b]. Additionally, by refusing to recognize the plaintiffs' lawful marriages from other

states, Indiana law as administered and enforced by defendants deprives same-sex married

1 The Complaint includes two paragraphs numbered 37 and two paragraphs numbered 38. For ease of reference, the State has designated them 37a, 37b, 38a, and 38b.


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couples of numerous legal protections that are available to opposite-sex married couples by

virtue of marriage. By way of example:

a. A widow or widower of an opposite-sex spouse is entitled to 50% to 100% of his

or her deceased spouse’s estate if the spouse died intestate. I. C. § 29-1-2-1(b).

Because of I. C. § 31-11-1-1, same-sex surviving spouses in this situation receive

nothing.

b. If an opposite-sex spouse becomes incapacitated, her spouse may be ordered by a

court to support that spouse during the period of incapacity. I. C. § 31-15-7-2.

Because of I. C. § 31-11-1-1, plaintiffs are not afforded this protection by Indiana

law.

c. Because of I. C. § 31-11-1-1, Indiana’s divorce laws do not apply to same-sex

spouses.

d. Because of I. C. § 31-11-1-1, Indiana requires same-sex couples who file federal

returns with a married filing status to file their Indiana income tax returns with a

filing status of single, thus requiring plaintiffs to complete a “sample” federal

return entering information as if they are each single, as a basis for their Indiana

return, at additional cost and inconvenience.

ANSWER: The statutes cited in paragraph 38b of the Complaint speak for themselves. The State admits that Indiana law confers some benefits in some circumstances based on marital status and that Indiana law declares out-of-state same-sex marriages void for that purpose. The State denies any remaining allegations set forth in paragraph 38b of the Complaint. 39. Same-sex married couples are excluded from these and many other legal

protections and obligations provided for opposite-sex married couples under Indiana law. For

example, the publication "More than Just a Couple - A Compendium of the Rights and


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Responsibilities of Civil Marriage in the Indiana Code" was compiled by the LGBT project at the

Indiana University Maurer School of Law and identifies 614 different provisions in the Indiana

Code that "are legally and linguistically tied to civil marriage, family and spousal relationships."

http://www.indianaequalityaction.org/wordpress/wp-content/uploads/2012/11/More-Than-Just-a-

Couple.pdf (Last viewed on Mar. 4, 2014). Because plaintiffs are married to persons of the same

sex, they cannot avail themselves of any of the protections, rights or responsibilities that Indiana

imposes upon persons who are married to someone of the opposite sex.

ANSWER: The publication cited in paragraph 39 of the Complaint speaks for itself. The State admits that Indiana law confers some benefits in some circumstances based on marital status and that Indiana law declares out-of-state same-sex marriages void for that purpose. The State denies any remaining allegations set forth in paragraph 39 of the Complaint. 40. By refusing to recognize the plaintiffs' lawful, out-of-state marriages, Indiana,

acting through the defendants and pursuant to I. C. § 31-11-1-1, disadvantages, harms and

stigmatizes plaintiffs solely because their spouses are of the same sex instead of the opposite sex.


41. Because defendants refuse to recognize the plaintiffs' lawful out-of-state

marriages by virtue of I. C. § 31-11-1-1, their children are harmed and stigmatized by the

treatment of their family because it is headed by two persons of the same sex versus a family

headed by a man and a woman.


42. I. C. § 31-11-1-1 tells the plaintiffs and their children that their marriages -- and

their families -- are not valued in the same manner as opposite-sex marriages or single-parent

families.


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ANSWER: The State denies the allegations set forth in paragraph 42 of the Complaint. 43. By refusing to recognize the plaintiffs' lawful out-of-state marriages, defendants,

acting pursuant to I. C. § 31-11-1-1, deny plaintiffs significant legal protections, benefits and a

“dignity and status of enormous import.” Windsor, 133 S. Ct. at 2692.

ANSWER: United States v. Windsor, 133 S. Ct. 2675 (2013), speaks for itself. The State denies any remaining allegations set forth in paragraph 43 of the Complaint.

44. By refusing to recognize plaintiffs’ marriages validly entered into elsewhere,

defendants, acting under color of I. C. § 31-11-1-1, deprive plaintiffs of the rights secured by the

Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.


COUNT II

Indiana’s Refusal to Recognize Plaintiffs’ Marriages Violates the Due Process Clause of the Fourteenth Amendment

to the United States Constitution

45. Plaintiffs incorporate by reference the allegations of paragraphs 1-44.


46. The Fourteenth Amendment to the United States Constitution guarantees to all

citizens due process of law.

ANSWER: The Fourteenth Amendment to the United States Constitution speaks for itself.

47. Marriage is a fundamental right. Choices regarding marriage, like choices about

other aspects of family life, are a central part of the liberty protected by the Due Process Clause.

ANSWER: The State denies the allegations set forth in paragraph 47 of the Complaint because they call for legal conclusions.


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48. Plaintiffs, once they have been validly married in a state which authorizes same-

sex marriage, have a fundamental right to remain married and a fundamental right to have their

marriage recognized.

ANSWER: The State denies the allegations set forth in paragraph 48 of the Complaint because they call for legal conclusions. 49. Plaintiffs, as persons in valid, lawful marriages have a liberty interest in their

marital status that is protected by the Due Process Clause of the Fourteenth Amendment,

regardless of where they choose to live in the United States as a married couple.

ANSWER: The State denies the allegations set forth in paragraph 49 of the Complaint because they call for legal conclusions. 50. Plaintiffs, as persons in valid, lawful marriages have a protected property interest

in maintaining their lawful marital status and the comprehensive protections and mutual

obligations that marriage provides.

ANSWER: The State denies the allegations set forth in paragraph 50 of the Complaint because they call for legal conclusions. 51. Plaintiffs also have a fundamental right to preserve their lawful marital status as

they choose to travel in and out of Indiana.

ANSWER: The State denies the allegations set forth in paragraph 51 of the Complaint because they call for legal conclusions.

52. Ind. Code § 31-11-1-1 denies the plaintiffs their fundamental right to have their

lawful marriages recognized and their fundamental right to remain married by voiding, without

any semblance of due process, the marriages they validly entered into in jurisdictions other than

Indiana and thus denies them the myriad benefits, privileges and rights of marriage available

under Indiana law.


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ANSWER: Indiana Code § 31-11-1-1 speaks for itself. The State admits that Indiana law confers some benefits in some circumstances based on marital status and that Indiana law declares out-of-state same-sex marriages void for that purpose. The State denies any remaining allegations set forth in paragraph 52 of the Complaint because they call for legal conclusions. 53. The voiding by defendants acting pursuant to I. C. § 31-11-1-1 of plaintiffs'

marriages lawfully entered into in jurisdictions other than Indiana denies the plaintiffs

substantive due process by infringing upon their fundamental rights to have their lawful

marriages recognized and to remain married and thus denies them the myriad benefits, privileges

and rights of marriage available under Indiana law.

ANSWER: Indiana Code § 31-11-1-1 speaks for itself. The State admits that Indiana law confers some benefits in some circumstances based on marital status and that Indiana law declares out-of-state same-sex marriages void for that purpose. The State denies any remaining allegations set forth in paragraph 53 of the Complaint because they call for legal conclusions. 54. Defendants’ refusal to recognize plaintiffs’ respective marriages entered into in

other jurisdictions where those marriages are valid and lawful, and its voiding of those marriages

by operation of law, violates the Due Process Clause.


COUNT III

Indiana’s Refusal to Recognize Plaintiffs’ Lawful Marriages Violates the Full Faith and Credit Clause of the United State Constitution

55. Plaintiffs incorporate by reference the allegations of paragraphs 1- 54.


56. The Full Faith and Credit Clause of the United States Constitution provides in

part:


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Section 1. Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

ANSWER: U.S. Const. art. IV, § 1 speaks for itself.

57. Defendants’ refusal to recognize plaintiffs' marriages is a refusal to give full faith

and credit to the public acts and records of the states in which they were married in violation of

the Full Faith and Credit Clause of the United States Constitution.


DECLARATORY AND INJUNCTIVE RELIEF

28 U.S.C. §§ 2201 and 2202; Federal Rules of Civil Procedure, Rules 57 and 65

58[a].2 Plaintiffs incorporate by reference the allegations of paragraphs 1- 57.


58[b]. This case presents an actual controversy because defendants’ present and ongoing

denial of equal treatment to plaintiffs; the infringement of plaintiffs' fundamental rights; and the

denial of due process to plaintiffs; and, an infringement of plaintiffs’ rights promised by the Full

Faith and Credit Clause, subjects them to serious and immediate harms, including ongoing

emotional distress and stigma, warranting the issuance of a judgment declaring that I. C. § 33-11-

1-1 violates the Due Process Clause and/or the Equal Protection Clause of the Fourteenth

Amendment to the United States Constitution.

ANSWER: The State admits that the matter involves at least one actual controversy. The State denies any remaining allegations set forth in paragraph 58b of the Complaint.

2 The Complaint includes two paragraphs numbered 58. For ease of reference, the State has designated them 58a and 58b.


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59. A favorable decision enjoining defendants from further constitutional violations,

and mandating them to recognize plaintiffs' marriages, would redress and prevent the irreparable

injuries to plaintiffs which they have identified, and for which they have no adequate remedy at

law or in equity.


REQUEST FOR RELIEF

WHEREFORE, plaintiffs respectfully request that this Court:

a. Enter a declaratory judgment that Ind. Code § 31-11-1-1 on its face and as applied

to plaintiffs violates the Equal Protection Clause of the Fourteenth Amendment to the United

States Constitution;

b. Enter a declaratory judgment that Ind. Code § 31-11-1-1 on its face and as applied

to plaintiffs violates the Due Process Clause of the Fourteenth Amendment to the United States

Constitution;

c. Enter a declaratory judgment that Ind. Code § 31-11-1-1 on its face and as applied

to plaintiffs violates the Full Faith and Credit Clause of the United States Constitution;

d. Enter a permanent injunction directing defendants to recognize plaintiffs’

marriages as valid and lawful within the State of Indiana and to administer the Pension Fund so

as to provide the same benefits for all married couples, regardless of whether the couples are of

the opposite sex or the same sex;

e. Award plaintiffs the costs of suit, including reasonable attorneys’ fees under 42

U.S.C. § 1988; and

f. Enter all further relief to which plaintiffs may be justly entitled.


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ANSWER: The State denies any factual allegations set forth in paragraphs (a) through (f) of Plaintiffs’ “Request for Relief” and denies that Plaintiffs are entitled to any of the relief requested therein.

AFFIRMATIVE DEFENSES

1. The Court lacks jurisdiction over one or more claims asserted by Plaintiffs

because Governor Pence is not a suitable defendant under Article III and/or the Eleventh

Amendment and principles of sovereign immunity, which bar this action against Governor

Pence.

2. One or more claims asserted by Plaintiffs fail to state a claim on which relief can

be granted because Governor Pence is not a suitable defendant under Article III and/or the

Eleventh Amendment and principles of sovereign immunity, which bar this action against

Governor Pence.

3. Plaintiffs’ rights, privileges, and immunities secured under the Constitution or

laws of the United States have not been violated by any alleged action, inaction, or omission of

Defendants or the State of Indiana, who at all times have acted in compliance and consistent with

the Constitution and laws of the United States and of the State of Indiana.

4. The statutes, rules, and policies challenged are not discriminatory and, in any

event, advance legitimate and compelling public purposes.

5. The statutes, rules, and policies challenged are constitutional.

The State reserves the right to raise affirmative defenses in the future as needed or

warranted by investigation or discovery.


21

Respectfully submitted,

GREGORY F. ZOELLER Attorney General of Indiana s/ Thomas M. Fisher Thomas M. Fisher Solicitor General Office of the Attorney General 302 W. Washington St., IGC-S, 5th Floor Indianapolis, Indiana 46204-2770 Phone: (317) 232-6255 Fax: (317) 232-7979 Email: [email protected]


22

CERTIFICATE OF SERVICE

I hereby certify that on May 16, 2014, I electronically filed the foregoing with the Clerk

of the Court using the CM/ECF system, which sent notification of such filing to the following:

Karen Celestino-Horseman AUSTIN & JONES, P.C. [email protected] Mark W. Sniderman SNIDERMAN NGUYEN, LLP [email protected]

William R. Groth FILLENWARTH DENNERLINE GROTH & TOWE, LLP [email protected] Kathleen M. Sweeney SWEENEY LAW GROUP, LLC [email protected]

s/ Thomas M. Fisher Thomas M. Fisher

Solicitor General Office of the Attorney General Indiana Government Center South 5th Floor 302 W. Washington St. Indianapolis, IN 46204-2770 Phone: (317) 232-6255 Fax: (317) 232-7979 Email: [email protected]


1:14-cv-00406 #43

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