Friday's oral arguments in the U.S. District Court for the Southern District of Indiana were the latest chapter in Baskin v. Bogan, the federal lawsuit filed by Lambda Legal, and the first of five lawsuits to be heard by the court in Indiana.
Five Indiana same-sex couples are seeking to overturn Indiana's legal definition of marriage, which currently recognizes only heterosexual relationships. Early last month, Lambda Legal, a nonprofit founded in 1973 to defend the legal right of lesbian, gay, bisexuals and transgender people, filed an emergency motion in the case on behalf of Amy Sandler, Niki Quasney and their two children, seeking immediate relief from discrimination as Quasney has stage four ovarian cancer. The court granted the emergency order on April 10, making Sandler and Quasney the first legally married same-sex couple in Indiana. The emergency order expires May 8.
During Friday's hearings, testimony revealed that Niki Quasney's cancer "is back, and has grown worse." Niki and Amy decided against more chemotherapy, as it will not prolong her life, and it would have numerous side effects. "I am doing everything I can to protect Amy and our two children from discrimination — my children shouldn't have to grow up being treated as inferior to children from other families," Quasney said. "We are not asking for special privileges. We should have the same freedoms as other married Indiana couples."
Niki and Amy were married in the Commonwealth of Massachusetts on Aug. 29, 2013. All of the other couples — Rae Baskin and Esther Fuller, Bonnie Everly and Lyn Judkins, Dawn Carver and Pam Eanes, and Henry Greene and Glenn Funkhouser with minor son, C.A.G. — have been in what they say are committed, loving relationships lasting 13 to 24 years, and are waiting until marriage is legal in Indiana before tying the knot. During Friday's oral arguments, attorney Camilla Taylor of Lambda Legal proposed five points to challenge her opponents' argument that marriage's primary function is to support human procreation:
1. You don't have to pro-create in order to marry.
2. Unmarried people pro-create all the time.
3. Being reared by these couples is in the best interest of their children.
4. Nothing about the current definition encourages parents to be better parents.
5. The current definition harms children, making them feel inferior to children of legally married families.
Attorney Jordan Heinz, who attended the hearing with his Kirkland and Ellis colleague Dmitriy Tishyevich on behalf of Niki and Amy, told the court that "little has changed since the Temporary Restraining Order (TRO) three weeks and one day ago." Nothing new has been presented in the last three weeks on the state's behalf. And yet, creating legal documents for the same rights married couples have is not only very expensive, he said, but "proof they are being harmed."
Indiana Solicitor General Thomas Fisher set the tone for the state's defense by saying, "We have to set aside our human reactions to what is happening, and focus on the law. It's never been about exclusion (of gay and lesbian couples), it's about definition."
Chief Judge Richard L. Young, who will be presiding over all five same-sex marriage cases in Indiana, asked Fisher, "Is marriage a fundamental right?" Fisher responded, "Within limits — it does not include same-sex couples or polygamous marriages." For now though, in Fisher's words, gay marriage is "where the action is."
Fisher went on to say that married couples create babies, and the state has to protect them. Judge Young wanted to know about couples who adopt, and if it's the state's job to protect them as well. He also went on to point out that 60 year olds don't have to worry about having children, to which Fisher replied, "they model the behavior for fertile couples."
"The state doesn't care if you are a same-sex couple. They care if you can produce children," Fisher said.
Fisher went on to talk about the "slippery slope" that would be caused by allowing same-sex couples to marry, leading the judge to ask, "What about states where same-sex marriage is already permitted? Has their institute of marriage already disintegrated?"
"It's too soon to tell," Fisher replied.
According to attorney Heinz, it's not too soon to tell if damage has been done by the state to Niki and Amy. Injuries to Niki include her claim that Indiana's government encourages discrimination. Niki continues to travel to Chicago for treatment, "for fear she won't be treated as a married couple in Munster." This fear stems partly from the fact a clerk in Munster denied their marriage certificate. It also stems from cases like Bonnie Everly and Lyn Judkins of Chesterton, Indiana.
One of the last times Bonnie was in the hospital, Lyn — her partner of 13 years — was locked out, and blocked from ICU, something that would never happen to a married couple.
It is the plaintiffs' argument that "discrimination itself, can cause clear injury."
Bonnie and Lyn held hands throughout the entire proceedings, and never left one another's sides after the hearings were over. Both Bonnie and Lyn have "No H8" tattooed on their arms, and the name of their future spouses tattooed above their hearts.
After the proceedings, Lyn said, "I'm so confident we're going to win that I already bought my wedding dress!"
Niki and Amy should find out if their TRO has been extended prior to May 8, and it has not been determined when the summary judgment will be decided — attorneys said it could be weeks, or months.