Tim Evans

tim.evans@indystar.com

Indiana’s law banning same-sex marriages and the recognition of such unions legally performed in other states is the latest to come under attack in federal court.

Four Indiana same-sex couples filed a federal lawsuit Friday in U.S. District Court for the Southern District of Indiana challenging the state law, hoping to catch a recent wave of successful challenges to similar state laws.

Two of the couples — Melissa Love and Erin Brock of Jeffersonville, and Michael Drury and Lane Stumler of New Albany — want to get married in Indiana.

The two other couples — Jo Ann Dale and Carol Uebelhoer of Otisco, and Jennifer Redmond and Jana Kohorst of Jeffersonville — were married in other states and want their marriages recognized in Indiana.

Indiana law currently defines marriage as the union of one man and one woman and does not recognize same-sex marriages or similar unions legally performed in other states.

The new lawsuit is the most recent salvo in a nationwide movement that took off last year after a U.S. Supreme Court decision gave full federal recognition to legally married gay couples. Recent public opinion polls also have shown rapidly growing acceptance of gay marriage.

Since December, federal courts have struck down state laws in Illinois, Kentucky, Oklahoma, Virginia, Texas and Utah banning same-sex marriages or prohibiting the recognition of similar unions performed in the more than 15 states where they are legal.

The Indiana lawsuit mirrors the challenge in Kentucky that last month prompted a federal judge to order that state to recognize same-sex marriages legally performed elsewhere. The Indiana couples also are represented by the same attorney who successfully challenged the Kentucky law.

The recent federal lawsuits represent “an equality movement on fire,” said Hayley Gorenberg, deputy legal director for Lambda Legal, a national civil rights organization serving the gay, lesbian, bisexual and transgender community.

She said the Indiana lawsuit is among several dozen pending across the U.S.

“The inequity, the abuse of families who can’t have equal rights is inescapable,” Gorenberg said, “and that is fueling this move toward fairness — no more, no less. It’s that simple.”

Indiana’s treatment of same-sex couples is unconstitutional and discriminatory, according to the lawsuit, which names as defendants Attorney General Greg Zoeller and Gov. Mike Pence. The governor has supported state efforts to pass a constitutional gay marriage ban.

“Governor Pence supports Indiana’s marriage law, and he will fully cooperate with the Attorney General as he defends Indiana’s law in court,” said Pence’s spokeswoman Kara Brooks.

Zoeller said Friday his office will defend Indiana’s statutory marriage definition from the new legal challenge.

“I will represent our state and defend our statute now and on any appeal to the best of my skill and ability, as I swore an oath to do,” Zoeller said in a statement. “As state government’s lawyer, I must defend the state’s authority to define marriage at the state level within Indiana’s borders. People of goodwill have sincere differences of opinion on the marriage definition, but I hope Hoosiers can remain civil to each other as this legal question is litigated in the federal court.”

The attorney general had not seen the lawsuit Friday afternoon, the statement said. The attorney general’s office previously defended Indiana’s marriage-definition statute from other legal challenges in state courts.

The lawsuit comes on the heels of the Indiana General Assembly’s decision to change and delay a proposal that would have enshrined a same-sex marriage ban in the state constitution.

As introduced, that measure, known as House Joint Resolution 3, also would have banned recognition of civil unions, but lawmakers decided to strip that provision. The move angered many social conservatives because it effectively delayed a proposed public referendum on the issue until at least 2016.

Supporters of HJR-3 had argued the constitutional amendment was needed to protect Indiana’s ban on same-sex marriage, though most acknowledged that the measure would only protect the ban in state court.

“For years we have warned legislators and policy leaders that homosexual activists were seeking to force a new definition of marriage upon every church, school and business in Indiana,” Micah Clark, executive director of the American Family Association of Indiana said in a statement.

“Today, a lawsuit has been filed in the Southern federal court district of Indiana to overturn our laws that recognize marriage as not just any relationship, but as the special union of a man and a woman which benefits children and society like no other. We knew this would happen when the legislature sent the signal that it would not protect our laws with the final passage of the Marriage Protection Amendment this year. This issue now rests in the hands of unelected judges, just as a majority of our legislators wanted, rather than letting the people of Indiana decide the future of marriage.”

State Sen. Mike Delph, R-Carmel, a staunch supporter of Indiana’s same-sex marriage ban, immediately took to Twitter to criticize the lawsuit.

“We knew this day was coming,” he said. “Our federal court system has evolved into the forum of choice for liberal activism.”

Curt Smith of the Indiana Family Institute, another supporter of the constitutional amendment, said lawmakers have “denied the people of Indiana the right to preserve marriage and handed an invitation to our opponents to go ahead and knock marriage out before Hoosiers can vote on it in 2016.”

A spokesperson for Freedom Indiana, the group that led the fight against HJR-3, declined to comment.

Attorney Daniel J. Canon of Clay Daniel Walton & Adams in Louisville filed the Indiana lawsuit Friday. He said the recent debate in Indiana over a proposed constitutional amendment to ban gay marriage helped spur them to action.

“The people of Indiana cannot depend on the legislature to protect their civil liberties and constitutional rights, so we turned to the federal courts,” Canon said, adding that it was the first such case they were aware of in Indiana.

“These couple are like any other opposite-sex couples in Indiana ... they live as married couples, they raise their kids together, they work and go to church ... pay their taxes,” Canon said. “But the state of Indiana today says they do not deserve the same rights.”

The Louisville attorney also spearheaded the federal lawsuit in Kentucky that resulted in a Feb. 12 court ruling in which U.S. District Judge John G. Heyburn found that Kentucky’s constitutional amendment banning the recognition of same-sex marriages violates the U.S. Constitution’s guarantee of equal protection.

“There is no reason,” Canon said, “why the Indiana case would be any different.”

The new lawsuit says Indiana’s law banning same-sex marriage and the recognition of such unions performed legally in other states violates the U.S. Constitution’s guarantees of due process and equal protection. It also claims the law violates the establishment clause “because it was enacted for the purpose of establishing a definition of marriage based upon religious beliefs of the majority, and not for a secular legislative purpose.”

“Indiana has no rational, legitimate, or compelling state interest,” the lawsuit says, “in enforcing the statutes challenged by Plaintiffs in this case.”

Canon said whether or not Indiana adopts a state constitutional amendment is irrelevant.

“If we win, it would defeat any state constitutional amendment, statute or law that runs contrary to the federal constitution,” he said. “It is a simple matter of civics. The U.S. Constitution trumps state constitutions and laws.”

Star reporter Tony Cook and Chris Kenning of the Louisville Courier-Journal contributed to this story. Call Tim Evans at (317) 444-6204. Follow him on Twitter: @starwatchtim.