Judge Young of the United States District Court for the Southern District of Indiana issued a decision in Bowling v. Pence, another marriage equality case, and reached the same conclusion that Indiana’s prohibition on same sex marriage is unconstitutional. He stayed his order pending the 7th Circuit’s consideration of that case or the related cases on the issue.
As the Indiana Law Blog does a wonderful job of laying out, what makes this case more notable is that the court chides the Governor for what it regarded as a misrepresentation by the Governor as to whether he had enforcement authority with respect to Indiana’s same sex marriage law and would, therefore, be a proper party to the lawsuit.
A suit for injunctive relief is a request from the petitioner asking that the court order the respondent to do or not do something. In prior litigation, the Governor’s response was, essentially, “I have no power to enforce or not enforce here, don’t sue me.” That argument carried the day in an earlier case, and the Court dismissed Gov. Pence as a defendant. However, following Judge Young’s prior decision concerning same sex marriage and subsequent issuance of a stay by the 7th Circuit, the Governor’s office issued memoranda instructing the executive branch agencies on how to comply with the court’s order. This, to the Court, was evidence that the Governor had authority he had previously disclaimed.
The memoranda issued by the Governor clearly contradict his prior representations to the court. The Governor can provide the parties with the requested relief as was evident by his initial memorandum on June 25, 2014, and he can enforce the statute to prevent recognition as evident by his correspondence on June 27 and July 7. Thus, the court finds that this case is distinguishable from the cases cited by Defendants because it is not based on the governor’s general duty to enforce the laws. It is based on his specific ability to command the executive branch regarding the law. Therefore, the court finds that the Governor can and does enforce Section 31-11-1-1(b) and can redress the harm caused to Plaintiffs in not having their marriage recognized.
Judge Young characterized the Governor’s misrepresentation as “troubling.”
Actually, Judge Young said the Governor’s misrepresentation was “at a minimum, troubling”.
In addition to being a “bold misrepresentation” and “troubling,” Pence’s representations, made through his lawyer, arguably violated Rule 11(b) of the Federal Rules of Civil Procedure, which states that an attorney’s signature on a pleading certifies to the best of his knowledge, formed after reasonable inquiry, that the pleading is not being presented for any improper purpose, and that the denials of factual contentions are warranted on the evidence.