- Mark A. Lee
The case, Bowling vs. Pence, et. al., seeks recognition of same sex marriages solemnized in other states. One of the plaintiffs in the case is an employee with the State Department of Corrections and is seeking benefits for her spouse and their children. The suit names Governor Mike Pence as a defendant in the case, along with Attorney General Greg Zoeller, Indiana Department of Revenue Commissioner Michael Alley, and State Personnel Department Executive Director Anita Samuel.
As probably expected based on his previous decisions, Judge Young ruled all listed parties are “permanently enjoined”, or ordered, to recognize same-sex marriages in Indiana and exercise their authority within their various agencies to see same-sex married couples afforded the same rights and benefits as opposite-sex married couples.
Judge Young also stayed his order until the Seventh Circuit Court of Appeals rules on the merits of the case as well as the other related cases that will be heard in oral arguments next week. He also pre-empted any additional stay requests by stating that if the Seventh Circuit stayed their own decision, his stay on this case would remain in effect as well.
However, the most notable part of Judge Young’s order in Bowling vs. Pence is the fact that Pence remains a defendant in the case, a change from Young’s previous order in three other cases.
Love vs. Pence was the first case challenging Indiana’s ban on same sex marriage to be filed in federal court. Fujii vs. Commissioner for the Indiana Department of Revenue and Lee vs. Abbott (Formerly Fujii vs. Pence et. al. and Lee vs. Pence et. al.) were among four others filed within the following week.
In his June 25 order for Fuji vs. Commissioner for the Indiana Department of Revenue and Lee vs. Abbott, Young dismissed Pence as a defendant in the cases, stating that the plaintiff’s injuries were not fairly traceable to Pence and cannot be redressed by him. In other words, there was no evidence that Pence had played or could play any part in preventing the plaintiffs from getting what they felt was their constitutional right.
In that same order, Love vs. Pence was dismissed entirely on the same grounds because Pence was the only defendant named in the case.
Now — remember the memo from Pence’s general counsel to state executive branches telling them to act as if Young’s first order never existed and same-sex marriage in Indiana was never overturned?
Yep. Judge Young heard about that, too.
On July 22, the plaintiffs in Love vs. Pence filed a motion to reconsider their case, paying specific attention to Pence as the defendant. The motion included evidence on two memos from the governor’s general counsel, Mark Ahearn. The previously mentioned memo was sent to all executive branch agencies on July 7. That memo was actually a follow up to a previous memo sent June 26 telling the same agencies to comply with Judge Young’s order. The motion stated that those memos, containing directives from the governor’s office, showed that Pence does in fact have the authority to enforce the state’s law and he should be a defendant in the case.
Judge Young’s decision in Bowling vs. Pence makes reference to the Governor and what he calls his misrepresentation to the court, specifically citing the memos presented in the Love vs. Pence motion. In the decision’s conclusion, Young said:
“…The court, after witnessing the Governor do what he claimed he could not do, reverses course and finds him to be a proper party to such lawsuits. The court wishes to reiterate that it finds the Governor’s prior representations contradicting such authority to be, at a minimum, troubling.”
At this time, Judge Young has not issued a decision on the motion to reconsider the Love vs. Pence case, however based on the comments made in Bowling vs. Pence, a decision is expected soon.
Meanwhile, attorneys continue to prepare for Tuesday’s oral arguments before the Appeals Court for the other three cases, Baskin vs. Zoeller, Fuji vs. Commissioner for the Indiana Department of Revenue and Lee vs. Abbott, along with the cases out of Wisconsin. The three-judge panel will hear from both sides at 9:30 a.m. at the Everett McKinley Dirksen United States Courthouse in Chicago, IL.